That court said Proposition 8 must fall because voters had withdrawn a constitutional right from gay men and lesbians.
Olson and Boies must also convince the Court that Proposition 8 violates the Constitution's Equal Protection clause by assigning gay or lesbian citizens a different, lesser status with regard to marriage rights.
Karl M. Manheim, a professor at Loyola Law School Los Angeles who had filed a brief with the court opposing Proposition 8, called the decision a "safe" one from justices who can be recalled by voters.
SAN FRANCISCO -- In all of the legal maneuvering surrounding the challenge in federal court to Proposition 8, California's 2008 voter-approved ban on same-sex marriage, one thing has seemed all but certain: the case would eventually head to the Supreme Court.
"Is it still your view," she said, "that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?" The lawyer, Shannon Minter, the legal director of the National Center for Lesbian Rights, argued that if the court upheld Proposition 8, same-sex couples would have "our outsider status enshrined in our Constitution".
(A federal appeals court ruled Proposition 8 was unconstitutional in 2010).
The high court said Proposition 8's sponsors were not directly affected by Walker's ruling.
In what has been hailed as a historic decision, a federal appeals court declared Proposition 8, California's same-sex marriage ban, to be unconstitutional, upholding Judge Vaughn Walker's original 2010 ruling.
But critics of the decision quickly picked up on Justice Scalia's words, warning, as the editorial in The Wall Street Journal did, that prisoners at the Bagram Air Base in Afghanistan or in Iraq would soon have access to federal courts — a proposition that would be unlikely to get any votes, let alone five, from the current justices.
In February an appeals court struck down Proposition 8, a gay-marriage ban approved by voters in California in 2008.
"If the court strikes down Proposition 8," Mr. Pugno said, "the initiative process itself is put into doubt".
