Pro same-sex marriage lawyer: "I have no idea" how court will rule

Plaintiff attorneys David Boies (L) and Ted Olson talk to the media after oral arguments at the U.S. Supreme Court, on March 26, 2013 in Washington, DC. Today the high court heard arguments in California's Proposition 8, the controversial ballot initiative that defines marriage as between a man and a woman. Mark Wilson/Getty Images

The lawyers who argued against Proposition 8, California's ban on same-sex marriage, refused to predict how the Supreme Court would rule on the issue, following more than an hour of oral arguments.

"Based on the questions the justices asked, I have no idea," attorney Ted Olson said today from outside of the Supreme Court. Olson argued on behalf of two gay couples today that Prop. 8 is unconstitutional.

The Supreme Court has the opportunity to issue a landmark ruling in this case, using Hollingsworth v. Perry to rule that marriage is a constitutional right available to all Americans, gay or straight. The case, however, isn't that simple -- the court has as many as five different options available to it, ranging from a national ruling to one that affects just California. It could also dismiss the case on the grounds that the supporters of Proposition 8 have no standing in court.

"This is an issue of American constitutional rights," Olson said. "We treat our citizens with equality, with dignity, with fairness." He called the issue "maybe the major final civil rights battle that we're fighting in our country."

Attorney David Boies, who worked with Olson to fight Proposition 8 in court, said that during today's oral arguments, the justices "were trying to probe both sides in terms of arguments. I think the questions jumped around some as they tried to evaluate each of these four alternatives."

"A number of the questions went directly to whether there ought to be a broad right on a 50-state basis," he said. At the same time, the justices also probed the issue of standing. "I think they were exploring everyone of the four alternatives," he said.

Attorney Charles Cooper, who represented the supporters of Prop. 8 before the court today, said afterwards, "The court asked some penetrating, measured questions of both sides, and now it's in the hands of the court."

The place for defining marriage, he added, is "with the people, not with the court."

Andrew Pugno, general counsel for the pro-Prop 8 coalition ProtectMarriage.com, agreed, "That's the forum where this debate belongs... This is not something that should be imposed by the judiciary."

"One of the very big issues of this case is the integrity not only of states rights... but of the initiatives process," Pugno said. Several California laws are passed directly by voters -- not the state legislature -- through the initiative process. If an initiative passed by the voters can be vetoed by the government officials the process was designed to circumvent, Pugno argued, it would be a "fatal blow to the initiatives process."

Voters in California passed Proposition 8 in 2008 -- after the California Supreme Court had granted same-sex couples the right to marry. That put California voters in the unique position of taking away rights granted by the court. After Prop. 8 passed, a federal court followed by the Ninth Circuit Court of Appeals said Prop. 8 was unconstitutional.

Tomorrow, the Supreme Court hears oral arguments in a separate case that considers the constitutionality of the Defense of Marriage Act. Decisions in both gay rights cases will be handed down this summer.

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