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...stakes are extremely high," adds law professor Samuel Marcosson of the University of Louisville, author of Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. "I think the plaintiffs are (unfortunately) very likely to lose - at least if the case makes it all the way to the Supreme Court - and set a precedent that didn't need to be, and shouldn't have been, set. The case was premature and ill-advised." (See why the California Supreme Court upheld Prop...
...attorneys who brought the case, led by former U.S. Solicitor General Theodore Olson and famed litigator David Boies, are confident their timing is right. "We consulted and researched in depth," Olson wrote in an e-mail to TIME. "We concluded that we had/have a reasonable chance of success. Our clients were made fully aware of the risks and chose to go forward. For them, the status quo is already failure. We had every reason to believe that someone was going to bring this case in any event - without the resources or experience that we can assemble. The State Attorney General...
Next the question would be whether banning gay marriage achieves a legitimate government interest - and defenders of Prop 8 included more than a dozen such goals in a preview of their case filed last month. They argue that allowing same-sex marriage would weaken society and erode support for traditional marriage. They also say that it could lead to greater acceptability, and eventually legal recognition, of polygamy and marginalize the role of biological parents...
...court, but have since helped with trial preparation. "We very much hope that Ted [Olson] is right that he has the votes to prevail against Prop 8, whether or not new constitutional ground is broken and regardless of which appellate court has the final word in the [San Francisco] case. And we've been doing everything we can to help the trial team prepare, as we're all passionately committed to victory both in this case and in the longer-term, national struggle...
...matter what happens, though, the issue of gay marriage won't be decided for good, no matter how far up the line this case goes. Gay marriage is legal in five states, and no decision by the U.S. high court would preclude other states from expanding those ranks. "It is definitely true that the case (even if unsuccessful) would not sound the death knell for same-sex marriage," Marcosson says. "States are permitted to do things that they are not required to do by the federal Constitution...