It was too risky, the skeptics said. Voters in state after state were rejecting same-sex marriage, and no federal judge had said such bans were illegal. One liberal legal scholar called the lawsuit a “Hail Mary” pass.
But now that Proposition 8′s ban on gay marriage is set for a hearing Tuesday before the Supreme Court, the lawyers and activists who started the case think they may be on the verge of a historic victory. Even the early doubters are hopeful. “We think the time is right,” said Los Angeles lawyer Theodore J. Boutrous Jr., Olson’s partner on the case. “Everything seems to be breaking in favor of marriage equality.”
Olson and Boies are urging the court to rule that gays and lesbians have an equal right to marry under the Constitution, a decision that would not only strike down the California ban but could make gay marriage legal nationwide. That is “the right result,” Boies said last week. “There is no rational or legitimate reason for the government to deny marriage to these loving couples.”
That may go too far for the court’s majority. The conventional wisdom among legal experts is that the court will stop short of declaring that gays and lesbians have a right to marry nationwide. A narrow ruling voiding Proposition 8 would bring gay marriage to California, but it would not force a change in states where strong opposition to the idea remains. Nine states and the District of Columbia authorize same-sex marriages.