The lawyers who argued in favor of overturning California’s same-sex ban in front the Supreme Court said Sunday they believe the votes exist for the Supreme Court to rule in favor of legalizing same-sex marriage in all 50 states.
David Boies and Ted Olsen said on Meet the Press that based on a previous ruling that struck down the federal Defense of Marriage Act – which prevented legally married same-sex couples from receiving federal benefits – the Court will rule to overturn the ban.
“If you read what the Supreme Court said in that case, there’s really no other way for the Supreme Court to come out in the case that’s up for argument on Tuesday,” Ted Olson said on NBC’s “Meet the Press.”
“The first part of that case is whether states have to recognize the rights of individuals who wish to get married in that state. I think that will end the debate right there.”
They said that the impact of the ruling will be based on the number of justices voting one way or the other.
“I think civil rights cases ought to be decided 9-0 or 8-1, the way the racial and civil rights decisions were largely made,” David Boies said in the same interview.
“It sends a message that this country doesn't tolerate discrimination. So, I think the more justices that sign on, the better.”
However, the likelihood of a unanimous or near-unanimous decision is unlikely based on the votes of other cases. “We were hoping that all nine justices would fall in line once the case finally was decided because of the inherent rights of individuals,” Olson said.
“I'm still optimistic it'll be more than five votes. But we can count the justices that already decided the Defense of Marriage case and their explanation for why they decided that.”
Public opinion on same-sex marriage, which has changed rapidly in the last five years, will also influence the justices. At the time California’s same-sex marriage ban was overturned, less of the country was in favor of legalization, Boies said.
“Now overwhelmingly it's taken over the country,” he said. “Just in the last couple of years, we've seen a tremendous movement that I think makes it easier now for the Supreme Court to make that total decision.”