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AFER legal eagles: We will win U.S. Supreme Court case on Prop 8

The legal eagles who successfully fought California’s Proposition 8 law said today they are confident of victory at the U.S. Supreme Court.

The dream team of Ted Olson and David Bois, along with attorney Ted Boutrous and the two gay couples who sued to overturn the discriminatory law, spoke immediately after news broke that the nation’s high court was going to take up the Prop 8 case, as well as one of the Defense of Marriage Act (DOMA) cases.

“It is going to be so important for the United States Supreme Court to address the merits here and … we have a 134-page exhaustive opinion from the federal District Court” that Olson said would be “an education for the American people” on marriage equality.

Olson noted how the lead expert for supporters of Prop 8 has since recanted his beliefs and “come over to our side.”

Both Olson and Bois called this case “a perfect vehicle” for the Supreme Court to decide on marriage equality. They cited a mountain of scientific and psychological evidence that point by point dismantled arguments made by the attorneys opposing same-sex marriage.

The attorneys, representing the American Foundation for Equal Rights (AFER) that sued for the plaintiffs, said the high court could make a ruling that would essentially have nationwide implications or throw out the case based on the standing question.

The high court gave itself a possible “out” for not ruling on a broad scale by adding the question of standing. “We challenged standing from the beginning,” Olson said.

After District Judge Vaughn Walker made his historical ruling that Prop 8 was unconstitutional, the case was appealed to the Ninth Circuit. But the State of California declined to join the appeal, leading the appeals court to ask the California Supreme Court whether the attorneys who defended Prop 8 had standing, or the right to defend the law when the State refused. The California Supreme Court ruled that they did have standing, a decision that raised more than a few legal eyebrows, but the appeals court allowed the case to continue.

The Ninth Circuit agreed with the lower court ruling on a narrower scale, and its decision was appealed by Prop 8 supporters to the U.S. Supreme Court.

Olson said the high court could toss the case if it decides that the Prop 8 supporters do not have standing. That would mean that the Vaughn ruling would be legal, and that gay and lesbian couples in California would be able to marry again.

The AFER legal team and the plaintiffs expressed confidence that the Supreme Court would rule in their favor, but none speculated on how the vote would come done.

“We are going to address all issues from our case,” Olson said. “It is a fundamental right, maybe the most fundamental right, to marry in this country.” He said that by denying some citizens the right to marry is discrimination, and this is against the Constitution.

“We are now literally within months of getting a final resolution of this case that began three and a half months ago. ... We will finally get a decision on the merits with respect to marriage equality. This is a momentous case,” Bois said.

Chad Griffin, formerly with AFER and now president of the Human Rights Campaign, also spoke to reporters on the conference call.

“Today's news is nothing short of a milestone moment for equality,” Griffin said. He cited how far the nation has changed in its opinion on marriage equality in just four short years, and he expected the justices would recognize that.

Griffin pointed out that nine states and the District of Columbia now allow marriage, and poll after poll show rising support for same-sex marriage. “There is a fundamental right to marriage,” he said. “This is about full inclusion.”

San Francisco City Attorney Dennis Herrera, who has been on the side of marriage equality since the beginning nine years ago, echoed Griffin’s point about how far the issue has swung for gay rights.

“It's a moment of mixed feelings,” Boies said. “We want the citizens of California to have marriage equality immediately. On the other hand, this is a critical case for deciding this civil rights issue for all time.”

Ken Williams is Editor in Chief of SDGLN. He can be reached at ken@sdgln.com, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.