Ted Olson

In a surprise development, the U.S. Supreme Court announced today (Friday, December 7) that it will review both the Proposition 8 case concerning a statewide ban on same-sex marriage and a Defense of Marriage Act (DOMA) case concerning a ban on federal recognition of same-sex marriages.

Many observers had predicted the court would hear a case involving DOMA, but many more expected the court to pass on reviewing a lower court decision concerning Proposition 8, the California ban on same-sex marriage. Ted Olson and David Boies, the high-profile attorneys who had successfully challenged Proposition 8 in the courts below had urged the Supreme Court to deny review of the Ninth Circuit ruling. That ruling, they noted, did “not conflict with any decision of [the Supreme] Court or any other court of appeals.”

But refusing to hear the Yes on 8 attorneys’ appeal of the lower court decision would have meant same-sex couples could start obtaining marriage licenses within days, dramatically increasing the population of states allowing same-sex marriage.

And while many expected the court to take one or more cases concerning DOMA, the big question was which case or cases it would review.

The court has chosen to review a Second Circuit case, Windsor v. U.S., in which the surviving spouse is challenging the federal government’s refusal to recognize her marriage when it comes to estate taxes on her deceased spouse’s estate.

In both cases, the Supreme Court has presented attorneys on both sides with a question on a procedural issue of standing in addition to the original question on merits.

In the Proposition 8 case, Hollingsworth v. Perry, the court asks that attorneys argue whether the Yes on 8 supporters of the initiative have legal standing to appeal the lower court’s decisions given that the state of California chose not to press an appeal. That means it may be possible the court will let the lower court decision stand by simply ruling that Yes on 8 did not have legal standing to file its appeal. The result would be the same-sex couples would be able to marry—but the resolution would be delayed until June and be politically less consequential.

The Olson-Boies legal team raised the standing issue after Yes on 8 filed its first appeal to a Ninth Circuit panel. Asked whether the court might use the standing issue as a way out of ruling on the merits, Olson said he thinks the court will “probably get to the merits” of the case but said that, if it doesn’t, then the 134-page U.S. district court decision declaring Proposition 8 a violation of equal protection would be the prevailing decision in California.

“Everyone is anxious to get to the merits,” said Boies, but he acknowledged his legal team has argued that Yes on 8 does not having standing to make their appeal. But ruling that Yes on 8 does not have standing would still allow the citizens of California to enjoy marriage equality, said Boies.

In the DOMA case, the Supreme Court asks attorneys on both sides to argue the Obama administration’s agreement with courts below that DOMA is unconstitutional “deprives” the Supreme Court of jurisdiction to decide the case. It also asks whether the Bipartisan Legal Advisory Group (BLAG) has standing to appeal the lower court decisions to the Supreme Court.

Ted Olson told reporters on a telephone conference call Friday afternoon that he is “very confident” that the outcome of the case before the U.S. Supreme Court “will be to support the rights of our gay and lesbian brothers and sisters.”

“We could not be more gratified that this is the case” on which the Supreme Court may decide “the most important civil rights issue of our time,” said Olson.

David Boies was more guarded, saying he was “encouraged and excited about the prospect that we will finally get a decision on the merits.”

Asked whether the Obama administration might weigh in on the Proposition 8 case at the high court, Olson said “we would certainly hope they would participate…and would support our position….”

The Obama administration has weighed in on the DOMA cases, arguing in court that it believes the core section of the law to be unconstitutional.

Arguments in both cases are likely to be scheduled for the second half of March.

The high court did not indicate Friday whether it would hear an appeal from Arizona, seeking to preserve a state law that bars gay state employees from receiving health benefits for their domestic partners the same as straight state employees are able to obtain for their spouses. Some indication of that, as well as denying review on several other DOMA cases, could be issued on Monday’s routine orders list.

One of the Proposition 8 plaintiffs, Kris Perry, said “we have learned how to be patient” and that, while she would like to be getting married next week, she is hopeful that, by hearing the Proposition 8 case, the court might rule in a way that will make same-sex marriage possible for many others.