Capitol Alert: Proposition 8 lawyer vows to appeal 'one way or the other'

The fight over California's same-sex marriage ban has been presumed for years to be destined for the U.S. Supreme Court, and a lawyer for Proposition 8 backers confirmed today that they'll appeal this morning's decision "one way or the other."

But when the 9th U.S. Circuit Court of Appeals ruled this morning that the ban is unconstitutional, its reasoning focused so narrowly on Proposition 8 that a lawyer for same-sex marriage proponents suggested the Supreme Court might be less inclined to take up the case.

"The grounds for the opinion, in my view, do make it somewhat less likely that the Supreme Court will take it," said the lawyer, David Boies.

Unlike in many other states, gay and lesbian people could wed in California for a brief period before Proposition 8's passage in 2008. The appeals court ruled that California erred in stripping them of a right they previously enjoyed. It did not consider the broader question of whether gay and lesbian couples may ever be denied the right to wed.

Boies said the Supreme Court might elect to "wait for a case that would raise the more general issue." But Ted Olson, also a lawyer for gay-marriage proponents, said it may be "very difficult" for the Supreme Court to ignore a case of such magnitude. The two lawyers have been planning for years for the case to wind up in the Supreme Court, as have lawyers working with Proposition 8 proponents.

Backers of the same-sex marriage ban said today that they have not yet decided whether to appeal directly to the Supreme Court or request a review by a larger panel of the appeals court.

"Either way, one way or the other, the case will continue on," said Folsom lawyer Andy Pugno, the author of Proposition 8.

He said the focus of the court's ruling is unlikely to dissuade the Supreme Court from taking it, likely next year.

"This case is all about the rights of the voters to make a decision on an important public policy matter vs. one or two judges substituting their opinions for the will of the voters," Pugno said.