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Same-Sex Marriage Legal Dream Team May Not Get Case Before Supreme Court

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OLSONBOIES

WASHINGTON -- The legal dream team behind the successful challenge to California's law banning gay marriage may end up having their work stalled by arcane legal processes.

In a Wednesday morning briefing for reporters, lawyers David Boies and Ted Olson -- who argued against each other in Bush v. Gore -- reiterated their desire to see the U.S. Supreme Court issue a sweeping ruling determining that any law intervening on an individual's right to marry was an abridgement of the Constitution's equal protection clause.

But complex hurdles that remain, and the odd-couple legal duo acknowledged that such a decision could take months if not years to materialize. More important, any decision could be confined to California.

At issue is whether or not defenders of Proposition 8 -- the California law passed by ballot initiative that banned gay marriage -- have standing to appeal the ruling from U.S. District Judge Vaughn Walker that overturned it. The U.S. Court of Appeals in San Francisco has asked the California Supreme Court to issue a ruling on that matter. They are likely to do so only as early as September, and it's not clear to anyone involved what the final decision might be.

"God knows when that'll be done," said Olson. "It's like pushing a piece of string."

There is, legal experts say, a distinct possibility the Court could determine that there is no one qualified to defend the state's interests in arguing that Prop 8 should not have been struck down. Both the governor and the attorney general have refused to do so. If that's the case, then Walker's overturn becomes de facto law. That would be a victory for gay rights advocates, but a narrow one. While it would likely allow for same-sex marriage in California, it would not address marriage in other states.

"We set out to overturn Prop 8 so that hundreds of thousands of millions will be living under a regime in which Prop 8 does not exist and that kind of discrimination does not occur," said Olson. "We would love to have a unanimous decision by the Supreme Court striking it down on its merits but we don't have any choice."

"The courts have to address ... whether or not the proper parties are before it," he noted. "And as less than satisfying as a decision on standing would be ... it would still be a decision for one sixth of the population of the United States that that kind of discrimination cannot constitutionally stand."

"It's a sixth of the population of the United States," Boies added, referring to the number of states that have approved same-sex marriage. "It's important, we think, to establish that right for millions of people that live in California and their children that live in California."

One argument holds that the U.S. Supreme Court could jump over the appellate court and make its own determination that legal standing exists. But legal experts in California say such a move would be a highly unlikely, if not unprecedented.

"If they say there is no standing under California law, it ends there -- I'm pretty confident of that," said Jon Eisenberg, an Oakland appellate specialist who has filed amicus curiae in the case, urging the state Supreme Court not to rely on past decisions when determining standing. "I don't think the U.S. Supreme Court could say we disagree with you in your interpretation of California law."

"I don't think Olson got into this just to get a win in the trial court and have it remain on the books because no one appeals," Eisenberg added. "That is not what he wants. By all accounts he thinks he has [Supreme Court Justice] Kennedy's vote and he wins in the Supreme Court by a 5-4 vote on the merits."

Indeed, after the morning briefing, Olson told The Huffington Post that his ideal goal was not just to get a Supreme Court hearing, but to "pick up as many votes as we can."

"There are five different ways it can resolve the case in our favor," he said. "You have to figure out what bait you can use for each of the justices," he added, exhibiting the zeal of a former Solicitor General.

Boies, for his part, reiterated that the ultimate objective was to get a decision by the U.S. Supreme Court determining that any law abridging marriage was an infringement on the equal protection. If that were to happen, he said, "the issue would be fully resolved," across all states.

"The fundamental issue is that this is not something that ought to be decided politically," he said during the briefing. "It's very encouraging to all of us that there is this shift in public opinion [in favor of same-sex marriage]. Even in the absence of opinion in public, the fact of the matter is the constitutional protections are clear."

There are, to be sure, other ways to get the issue in front of the Supreme Court, including going after other state laws that ban same-sex marriage. Olson himself noted that he and others "might pursue other avenues" though he did elaborate what those avenues might be.

Chad Griffin, president of the American Foundation for Equal Rights, added, "If we end up winning in California, and one sixth of America has gay marriage and it does not go beyond that, we would absolutely file cases in other jurisdictions."

To be forced to look beyond California, however, would be to reconfigure a delicate legal strategy that has been years in the making. Prop 8 was chosen as a basis for a lawsuit primarily because California seemed a more promising venue than other states. There were 18,000 gay couples married in California before the law was passed. Under Prop 8, if those couples were to divorce, they would have been prohibited from re-marrying. "There is that degree of capriciousness and arbitrariness in the California system which we want to take advantage of," said Olson.

Other states may be less complicated. And they also may not have a U.S. District Court judge like Walker who would sympathetically consider the case's merits. Even if they did, Olson and Boies would need to have a governor or attorney general willing to serve as legal adversaries, not allies.

"If Olson and Boies are looking for a vehicle to get into the Supreme Court they need a case," said Eisenberg, assessing what could happen if standing is not found in California. "I don't know of any litigation right now that is outstanding. ... They would have to find a state that has a law like Prop 8 and pick one that has a governor and attorney general who are likely to appeal."

Around the Web

Proposition 8: Long road to the Supreme Court - CNN

Prop 8 Trial Tracker

Prop 8: Preparing for a Supreme Court Gay-Marriage Case - TIME

Olson's way forward on gay marriage

Proposition 8 backers: Gay judge's ruling should be thrown out

Cali. AG: Prop 8 Backers Should Not Have Standing to Appeal