Olson has won each step of the way, but his last legal victory in that quest gave the former without the latter.
The U.S. Court of Appeals for the 9th Circuit in San Francisco overturned Proposition 8, but said there was no reason to decide whether the Constitution mandates that same-sex couples have the right to marry.
Olson reluctantly told the Supreme Court recently there was no reason to disturb the appeals court ruling, which effectively limits the right to marry to California and leaves the larger issue unresolved.
“It was with strong mixed emotions, and I think you can tell that” by reading the filing, Olson said in an interview.
“But in the end, we represent real, live people, and if the court doesn’t take the case, we’ve won and our clients and thousands of others in California can get married.”
It is all but inevitable that the Supreme Court will have something to say this term on the topic of same-sex marriage.
Besides the appeal brought by proponents of Prop 8, there are a slew of cases awaiting the justices regarding the constitutionality of part of the 1996 federal Defense of Marriage Act. It forbids the federal government from extending benefits to same-sex couples legally married in the states that provide for it.
A string of federal district judges and the U.S. Court of Appeals for the 1st Circuit have said the law violates the equal protection clause of the Constitution. The Obama administration also says the law is unconstitutional, leaving defense of the law signed by President Bill Clinton to a group formed by House Republicans.
But the DOMA challenges have nothing to do with the constitutional right to marry, since the plaintiffs in those cases were already married. Six states and the District of Columbia extend such privileges to same-sex couples, and voters in other states, including Maryland, will consider this issue this fall.
The effort by Olson and Boies was designed to bypass such a piecemeal approach. It sought recognition of a constitutional right to marry. Two years ago, a federal judge in San Francisco agreed, saying marriage was a fundamental right that was violated when voters attempted to “enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”
But the 9th Circuit took a different approach. It said there was no reason to look at the broader question.
Instead, it focused on the fact that gay couples in California for a brief time had the right to marry — 18,000 took the leap after the state supreme court in 2008 said they could not be denied — and that California voters took the right away.