Attorneys who argued against California same-sex marriage ban say five justices’ decision against Defense of Marriage Act shows ‘there’s no other way’ case can go

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A day after the Republican presidential candidate Ted Cruz said conservatives should “fall to our knees and pray” that the supreme court will not make same-sex marriage legal in all 50 states, comments from two attorneys who argued landmark cases on the subject suggested that prayer is indeed the last resort of those who remain opposed.

On Tuesday, the court will begin hearing oral arguments in same-sex marriage cases brought from four states. The case is expected to settle the legality of same-sex marriage in the US for good by June.

Cruz, speaking at the Iowa Faith and Freedom gathering in Des Moines on Saturday, also said: “We need leaders who will stand unapologetically in defense of marriage and life.”

Attorneys Ted Olson and David Boies suggested that such leaders would not be found – in sufficient numbers – among the nine supreme court justices.

Olson and Boies successfully argued against California’s same-sex marriage ban, Proposition 8, and the federal Defense of Marriage Act (Doma), whose downfall in the supreme court in June 2013 precipitated the current situation in which same-sex marriage is legal in 37 states and the District of Columbia.



Eleven states and Washington DC have made same-sex marriage legal; 25 states have been forced to allow it by judicial decisions following that of the supreme court.

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On Sunday, Olson and Boies appeared on NBC. Asked if the supreme court could yet hand opponents of same-sex marriage a lifeline by deciding that it was an issue for individual states to decide, Olson said: “What the supreme court said in the Defense of Marriage case, which was called the Windsor case, was that laws like the federal statute that restricted the rights of individuals who wished to get married to a person of the same sex were demeaning, disrespected their relationship, took away their constitutional rights.



“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.”

Olson predicted that the same five supreme court justices who voted to strike down Doma by a 5-4 majority – Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – would now vote to make same-sex marriage legal in all states.

John Roberts, Clarence Thomas, Samuel Alito and Antonin Scalia voted against the striking down of Doma.

“We were hoping that all nine justices would finally fall in line once the case was decided,” Olson said, “because of the inherent rights of individuals. So I’m still optimistic that it will be more than five votes, but we can count the justices from the Defense of Marriage case and their explanations for why they decided that way.”

Facebook Twitter Pinterest David Boies and Ted Olson are hopeful about the supreme court’s decision. Photograph: LBJ Foundation/flickr

Boies conceded that it was “a little hard to figure out” how any of the four who opposed on Windsor would switch their opinions, but said: “I think civil rights cases ought to be decided 9-0 or 8-1, the way racial and civil rights decisions were largely made.

“It sends a message that this country doesn’t tolerate discrimination. I think the more justices that sign on, the better.”

Asa Hutchinson, the Republican governor of Arkansas, also appeared on NBC. He was asked if he thought the court could yet leave the issue to the states.

“I think there is a way the court can do that,” he said. “If you look at the way the Windsor case was spoken of, it was not just how gays were treated that was part of the decision. There was also a deference to states’ definition of marriage.

“What has changed? The constitution hasn’t changed but a lot has changed in the state courts. A lot of states have moved towards recognising gay marriages have done it through judicial fiat, versus the legislative process. So the courts are really forcing this issue.

“As to what the supreme court could do, I think it’s really unpredictable. They could continue to give some deference to the states. But I do think that we’ll have to recognise what happens in another state.”

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Hutchinson, who recently said he would veto a controversial “religious freedom” bill in his state after being lobbied by his own son, said the contention over same-sex marriage was stoked by political, geographical and generational differences.

Despite the seemingly impending decision in favour of same-sex marriage, such differences continue to fire up the declared and undeclared contenders for the 2016 Republican presidential nomination. Many among the 20 or so politicians seeking support in the race, including Florida senator Marco Rubio, have tried to walk a fine line by saying – on an issue in which majorities of Americans are now in favour – that they oppose gay marriage without opposing gay rights.

Others, such as Cruz and the former Pennsylvania senator Rick Santorum, have maintained a harder line.