Could the Supreme Court uphold a California ruling striking down a ballot measure to ban gay marriage in the state without getting to the constitutional question?
Yes, said attorney Ted Olson, who is serving with David Boies as lead counsel in the challenge to Proposition 8.
Olson said the team is making a number of arguments in support of its case – including the argument that those who challenge the ruling striking down Prop 8 lack standing. If the Court takes that approach, it can rule in favor of upholding the lower court decision without deciding whether gays have a constitutional right to marry, Olson said.
“The Supreme Court sometimes likes to take, with respect to these types of issues, the smallest bite that makes a big difference,” the former U.S. solicitor general told reporters during a talk at the Center for American Progress, according to Politico‘s Under the Radar blog. [HT: ABA Journal]. “Sometimes the courts have to get out in front and sometimes they’ll take a big step and sometimes they’ll take an incremental step. What we did throughout this case is to make sure that the options were there. We have made a broad attack…based upon the equal protection clause and the due process clause.”