Boies, Olson Voice Prop 8 Optimism
In New York appearance, marriage equality litigators says opponents fell well short
Published: Thursday, March 11, 2010 9:28 AM CST
BY PAUL SCHINDLER
“Every person in America should see this, and we would end this now,” Ted Olson, one of two superstar attorneys challenging California’s Proposition 8, said of the case he and fellow litigator David Boies have mounted in a San Francisco federal court.
Olson was referring not only to what the two attorneys, in their first public appearance since the trial began in January, said was the clear superiority of their arguments compared to those put forward by Prop 8’s supporters, but also to the one disappointment marriage equality advocates have so far sustained during the trial –– the US Supreme Court’s refusal to allow cameras to record the proceedings, even for narrowcasting to a handful of federal courthouses outside San Francisco.
That decision, coupled with an earlier jettisoning of the trial court judge’s plan to post each day’s testimony on YouTube, to some degree reined in their hopes to, in Boies’ words, “move the public debate.”
Olson and Boies –– a legal odd couple who were opponents in the infamous Bush v. Gore Supreme Court case that settled the 2000 election –– made their comments in a March 10 one-hour conversation before an invitation-only audience of roughly 100 at the New York Times headquarters in Midtown. Adam Liptak, the newspaper’s Supreme Court reporter, moderated.
For those not disposed to following the trial hour-by-hour even if it were posted online, the Supreme Court’s 5-4 decision might seem a footnote in an already complex legal battleground. But given the longstanding aversion among top LGBT legal advocacy groups to any effort at leapfrogging the marriage equality issue from state courts to the federal judiciary out of concern about the high court’s rightward tilt, it was appropriate that Liptak pressed the attorneys on why observers shouldn’t read the camera ruling as a troubling bellwether.
Boies and Olson were having none of it. The Supreme Court, Olson said, has an allergy to cameras in federal courts, and was unwilling to allow them to get their nose under the tent in District Court Judge Vaughn Walker’s unprecedented plan for a video feed –– notwithstanding the Ninth Circuit’s approval of it.
In fact, cameras, though routine in many state courts, have made little headway in federal courts, so Walker’s plan was a break with tradition.
But, Liptak noted, the 5-4 majority –– split along the usual ideological lines, with Justice Anthony Kennedy, a swing vote on several gay rights victories, this time siding with the conservatives –– also gave credence to the Prop 8 supporters’ arguments that their privacy and even their well-being would be threatened by broadcasting their testimony.
The court was interested in “preserving a certain degree of anonymity in the political process,” Boies said, trying to minimize how much its posture on this question signaled specific sympathy for the Prop 8 side.
Retired Justice David Souter, an unbending opponent of cameras in the courtroom but someone who sided with liberals on cases divided by ideology, would have voted with the majority on this question, Boies asserted.
The problem with Boies and Olson’s effort at dismissing any ideological predisposition in the high court’s camera ruling, however, is that they clearly think very little of the claims Prop 8’s supporters made about the risk posed to their anonymity.
Arguing that the court’s conclusion about the dangers of compromising privacy in this case was “fundamentally wrong,” Boies said of Prop 8’s defenders, “These were professional experts… these were people who made speeches, who had given money, who had intentionally gone out and made themselves part of this thing.”
“They weren’t worried about the publicity,” Olson said. “They were worried about David Boies cross-examining them.”
In other words, Prop 8 advocates were unwilling to have the American people hear the case debated under the strict rules of the courtroom, where they would have to defend their position in detail, rather than simply answer “softball questions” (presumably, from the media).
Whether recorded on video or not, however, Boies and Olson believe they have established the best possible record in challenging Proposition 8’s constitutionality. To those who questioned the timing of this federal challenge –– especially longtime litigators in the LGBT legal community to whom Boies expressed “deference” –– their answer was simple: “This was going to be litigated” by someone sometime soon.
As the attorneys wait to return to Walker’s courtroom to make final arguments –– later this month or in early April –– Boies said, “I feel very good” about the outcome at this first stage. Walker, he said, outlined the issues he wanted addressed at trial, and if those remain the questions uppermost in his mind, “we win.”
The attorneys set out to prove three things, Boies explained –– that the right to marry is “fundamental”; that the discrimination same-sex couples suffer under Prop 8 hurts them and their children; and that there is no harm to different-sex couples from opening up marriage to gay and lesbian couples.
The “fundamental” question has been addressed affirmatively in numerous Supreme Court rulings –– not only the famous 1967 Loving decision that struck down miscegenation laws, but also in cases involving limitations on marriage rights for divorced partners found guilty of spousal abuse and for prison inmates.
The other side’s experts, Boies said, acknowledged that gay couples and their children face harm from their exclusion from marriage and, when pressed pre-trial by Judge Walker to say how heterosexual married couples would be harmed by marriage equality, Charles Cooper, the attorney defending Prop 8, said, “I don’t know, I don't know.”
“I have yet to hear any powerful argument on the other side,” Olson said, suggesting that Prop 8’s defenders quite nearly defaulted in mounting any counter-case.
“They had no evidence and we had all this,” Boies said, pointing to his side’s success at proving what it set out to.
The argument that marriage is primarily an institution to steer heterosexual procreation into stable family settings faltered from the get-go, Olson said, when Walker noted that the most recent couple he married were in their 80s. The “bumper sticker” that marriage has always been the union of a man and a woman amounts to “a tautology,” both attorneys argued.
Justice Kennedy, in the 2003 Lawrence sodomy ruling, Boies pointed out, argued that a tradition of discrimination “doesn’t make it right, it only makes it worse.”
It is no exaggeration to conclude that Boies and Olson are confident about their chances before Judge Walker, from whom they expect a ruling no later than June. The next step, they predicted, would be “expedited review” by the Ninth Circuit, perhaps in an “en banc” hearing that includes all of its appellate judges.
Victory at the appellate level –– which would legalize marriage for same-sex couples either in California or possibly in all nine states in the Ninth Circuit –– would speed Supreme Court review, since that victory would certainly be stayed, the attorneys said, until the high court ruled.
Boies and Olson were cagiest on how broad they think a potential district court victory might be. The court could find –– in somewhat analogous fashion to a 1996 Supreme Court case in which an anti-gay Colorado amendment was thrown out –– that voters in California had acted to deny gay and lesbian couples the equal protection of the law, in this case guaranteed by the state rather than the federal Constitution.
Or, Walker could rule that Boies and Olson succeeded in doing what they say they will fight to the end to demonstrate –– that the fundamental right to marry and the equal protection of the laws of the United States are violated when same-sex couples are denied access to civil marriage.
That, of course, would be the ultimate game-changer. Olson, perhaps the nation’s preeminent Supreme Court litigator, and Boies are clearly banking on their ability to win that argument on the merits at the high court, whatever the conventional wisdom about the current justices’ biases.
When asked afterward whether his confidence at the district court level is about winning the general argument or more narrowly restoring the right to marry in California, Boies said he was uncertain, acknowledging that Walker might well reach a decision fashioned to survive review by the Ninth Circuit and the Supreme Court. Even at this first stage, then, politics are not absent from the judicial equation.
Considering the potential for some measure of defeat at the Supreme Court that left the marriage equality question squarely up to the states, Boies was crisp in putting a good face on it, saying it would prove that “the downside is limited” in the strategy their team is pursuing. A federal constitutional claim against sodomy laws was rejected by the high court in a stinging 1986 ruling, which was later overturned after many of the remaining state prohibitions had been repealed or otherwise thrown out. That reversal, of course, took 17 years.
