POLITICS
06/18/2013 01:53 pm ET | Updated Jun 18, 2013

David Boies On Gay Marriage Ruling: Opponents Likely Don't Have Standing

WASHINGTON -- Predicting the outcome of Supreme Court decisions is a bit of a fool's errand, as most people who tried to do so before last year's ruling on the Affordable Care Act can attest. But if anyone has a good sense for how the nine justices will rule, it's the lawyers who argued the cases before them.

On Tuesday, David Boies, one half of the star legal duo that argued the same-sex marriage case before the court, offered a few insights into how he thinks the ruling will come down. He stressed that he never predicts the actual outcome of a case, but his comments were still illustrative.

Boies conceded that proponents of Proposition 8, the California law banning same-sex marriage, could end up losing because the court will rule that they were ineligible to appeal a lower court ruling that the law was unconstitutional. A victory on those grounds would be a victory for Boies and his fellow lawyer Ted Olson, but not the one they wanted.

"The question is, do those people have a standing to come before the court and defend it? Under Supreme Court precedent, they probably do not have standing," Boies said. "The court is very restrictive in terms of to whom they grant standing, and they never granted standing to private citizens who do not have a fiduciary relationship to the state. And one way that the court could solve this particular case is to hold that these people do not have standing."

Under this scenario, same-sex marriage would be made legal in California, but the issue of it is a constitutional right would be left unaddressed. Other states, in short, would be unaffected.

Boies also said that he felt the Court would have to piece together a final decision from various opinions, rather than coalesce around a single ruling. The case wasn't as clear as the challenge to the Defense of Marriage Act -- the other same-sex marriage decision waiting a verdict -- and it would likely require some dexterity on the part of the justices to get to a majority, Boies said.

"I think you are less likely to have a fractured court in the DOMA case than in the marriage equality case," he said. "I think that the DOMA case, you are likely to have at least five justices, maybe more, all coming together in one opinion. In marriage equality, you might end up where you don't have five justices signing on to any one opinion and so you have to aggregate them."

The comments, made during an event hosted by the moderate Democratic think tank Third Way, come just days before the court is expected to offer its rulings in both cases. The decisions will be the most significant on the issue of civil rights in several decades.

LGBT rights advocates had initially been nervous about having both cases decided at the same time, arguing that DOMA should go first because had it a better chance of being overturned. But those concerns have dissipated over time.

Boies acknowledged that he was surprised that the justices raised concerns about the timing of the case during oral arguments.

"Usually when a court takes a case, it is going to decide," he said. "But here as the arguments unfolded, you saw at least some of the justices beginning to reflect that maybe they should not have taken the first of these cases to come up from the Court of Appeals."

Were the ruling to fall short of complete affirmation of a constitutional right to same-sex marriage, he added, legal actions would continue.

"If we don't win it nationally, there will be additional litigation," said Boies.

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