Boies, Olson Predict Gay Marriage Nationwide

SAN FRANCISCO — Hundreds gathered at the Fairmont Hotel on Thursday evening to hear lawyers David Boies and Ted Olson discuss their new book, Reedeming the Dream: The Case for Marriage Equality. Boies, a Democrat, and Olson, a Republican, sued to repeal Proposition 8, California’s law banning same-sex marriage, which met its end a year ago at the U.S. Supreme Court.

The evening’s discussion, hosted by the Commonwealth Club, had the feeling of a homecoming. Though their book has been controversial in gay rights circles, Boies and Olson received a hero’s welcome on the one-year anniversary of their victory. They were introduced by Star Trek star George Takei, and the discussion was moderated by Lt. Gov. (and former San Francisco mayor) Gavin Newsom.

The two seasoned litigators in the case, known as Hollingsworth v. Perry, had once opposed one another in Bush v. Gore, the case that decided the 2000 presidential election. Yet despite the political bitterness surrounding that case, Boies and Olson told the audience that they had been “opponents, not enemies.” They came together in support of a cause that they both saw as a civil rights issue.

Left unsaid was the constitutional question–and, from voters’  perspective, the civil rights issue–raised by California’s failure to defend Proposition 8. Then-Attorney General (now Governor) Jerry Brown refused to defend the statute, though as the state’s chief law enforcement officer he had a duty to do so. Others intervened, but the Supreme Court determined that they lacked legal standing.

Newsom asked Boies and Olson why they chose to take on Proposition 8 when some favored a more incremental approach, and when many gay rights activists feared that failure in court would set the movement back. Boies said that given the likelihood that someone in California would eventually challenge the law, they did it themselves because they wanted to see it done right.

Boies noted, to laughter and applause, that Justice Antonin Scalia’s dissent in Lawrence v. Texas, which struck down anti-sodomy laws on Equal Protection grounds under the 14th Amendment, had correctly anticipated that the decision had effectively legalized gay marriage–or, to be precise, that it would invalidate laws enshrining traditional marriage. “He was right!” Boies exclaimed.

While he usually anticipates opposing arguments in preparing for a trial, “there really wasn’t a good argument on the other side,” Boies said. To merely state that marriage is between a man and a woman was not a legal argument, he said. Olson added that they were fortunate to be assigned Judge Vaughn Walker because of his desire to hold a full trial. (Walker is also gay, which Olson did not mention.)

Newsom credited Hollingsworth v. Perry with having triggered a “cascade” of cases nationwide. Legal challenges to traditional marriage laws are now under way across the nation, in addition to legislative efforts and ballot initiatives. 

Newsom also asked Olson whether it had been difficult to stand up against fellow Republicans, mentioning opposition from Rush Limbaugh in particular. 

Olson replied that the issue had been a matter of deep conviction for him. “I knew that it was right,” he said. He recalled visiting with local couples who appreciated what the lawyers had done to affect their lives. One of the plaintiffs in the case commented from the floor, drawing cheers when noting that she and her partner were celebrating their “first SCOTUS anniversary.”

To hisses, Newsom recalled the recent appearance of Texas Gov. Rick Perry at the Commonwealth Club, at which he had likened homosexuality to alcoholism in the course of making an argument for states’ rights to decide the marriage issue on their own. 

Newsom asked the lawyers whether they expected gay marriage bans to fall in other states in the same way that bans on interracial marriage had also fallen. Olson replied that he expected the federal courts eventually to eliminate the “patchwork” of state laws by legalizing gay marriage nationwide.