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.”