David Boies on His Case Against Prop 8

David Boies, Ted Olson's partner in the fight to overturn California’s Proposition 8, in a landmark gay-marriage trial that starts this week, has a long history of civil-rights battles and courtroom victories. Their teamwork math is simple: Olson is the conservative and Boies is the liberal. Both lawyers tell NEWSWEEK that by combining forces they hope to erase the idea that gay marriage is a liberal or a conservative issue. It is, they argue, simply one of equal rights for individual Americans.

Boies served as special trial counsel for the Justice Department's successful antitrust suit against Microsoft during the Clinton administration, and he has recently argued several high-profile antitrust cases. He argued on the side of Al Gore in the 2000 Supreme Court battle for the presidency, losing to Olson, who represented Bush. "I'd always rather be on the side of Ted Olson," says Boies, of his longtime friend. When Democrats in the Senate were balking at Olson's appointment as Bush's solicitor general, Boies went to bat for him. "I spoke to [Senate Democrats] and urged them to confirm him," recalls Boies.

Both he and Olson each day navigate small physical limitations. Olson is colorblind and Boies is dyslexic, admitting he is not great at names and "numbers still reverse." But Boies's learning disability has hardly limited his intellectual victories. "Names and numbers are not the most important, it's the principles and policies and things from which to construct an argument," he says of arguing high-level case law.

Boies hasn't been a lifelong liberal. He was president of the Young Republicans club while in college in the 1960s, but says he realized he "was on the wrong side" of the battle for civil rights, in which he soon became deeply involved. He left the party soon after graduation, became a Democrat, and honed his skills on civil-rights litigation and defending civil-rights workers who had been arrested, in Jacksonville, Miss. Boies sees his current advocacy for gay marriage as the logical extension of his youthful activism. "I think this is the most important civil-rights issue in the country now," says Boies. "There has been enormous progress in women's rights, and for ethnic minorities, the major group now singled out for discrimination are gays and lesbians."

Last spring, Olson called Boies to ask if he wanted to take part in the challenge to Prop 8, the California ballot initiative that banned gay marriage in 2008. Boies says Olson's position "wasn't expected, but it wasn't a surprise either. He's always been a conservative, in my perspective, from the libertarian tradition: small, less-intrusive government, and the need to protect individuals from government intrusion into personal lives." Olson, he says, had to work to balance that philosophy with the national-security needs after 9/11 as Bush's solicitor general, "but in the case of gay marriage, there is no countervailing issue to balance," he says. "It doesn't affect the calculus on this case. You have individual liberty on one hand, and no real serious government interest on the other."

The defense argues that Prop 8 is plainly constitutional on majoritarian grounds. "In America, we respect the results of fair elections," read a press release by the conservative Alliance Defense Fund, which submitted a brief in support of the defense. "The will of the people expressed in Proposition 8, which restored the definition of marriage to the California Constitution, should be respected. The Constitution itself makes it clear that the people have this authority." Lead defense counsel Charles Cooper told NEWSWEEK that he does not see how "the case being put forward is a valid one, or one supported in constitutional provisions. I certainly dispute that this could be a conservative legal cause."

Boies responds, "the very purpose of the Bill of Rights and the Constitution is to protect minority rights against majority voters. Every court decision that strikes down discriminatory legislation, including past Supreme Court decisions, affirming the fundamental rights to marry the person you love, overrules a majority decision."

Ever since the two took on the case, they've been inundated with fan mail, and hate mail. "I've probably had more hate mail on this case than from Bush v. Gore," says Boies. Gay legal groups were also at first both skeptical of the case and upset over not being allowed in as parties. "Ted and I can work together like a single person; we know and like each other," Boies explains. "Trial and litigation require a lot of decisions." In their early discussions, the two lawyers talked about why they wanted to take the case. First, because they would be representing four people in love who wished to get married. Second, because they both lacked confidence in the state-by-state approach of legalizing gay marriage.

How will they argue the case? First, he says, they will begin "with the fact that denying gays the right to marry damages them and their children. The Supreme Court has repeatedly held that the right to marry is a fundamental right and critical to the pursuit of happiness." Second, he says they will argue that allowing gays to marry in no way harms heterosexuals. "It's ironic that the most vocal proponents of family values and marriage oppose extending it to everyone." Lastly they will explore how the primary basis for preventing gay marriage is religion, "but the First Amendment also precludes pushing views on others. To have the state step in and say we're going to legislate for one religious group over another is exactly what is prohibited in the anti-establishment [of a state religion] clause."

Like Olson, who argues the conservative case for gay marriage in this week's issue of NEWSWEEK, Boies says the promise of equal rights can and should be argued from all sides of the political spectrum: "It's baked into the soul of America. Our spotted history in actually delivering on that promise has always come from the failure of people to really see someone else as human. But once you accept someone as 'like us' then discriminating against them becomes untenable."

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