Civil Rights Families LGBTQ Supreme Court

Can Ted Olson & David Boies Make History?


Margaret Talbot of the New Yorker Magazine has written the story that I hoped someone
would write with regard to the challenge to Proposition 8 that is being heard right now in a San Francisco courtroom (It began last week) but that, as Talbot notes, is almost certain to eventually land in the U.S. Supreme Court.

Talbot writes:

Perry v. Schwarzenegger challenges the constitutionality of Proposition 8, the California referendum that, in November, 2008, overturned a state Supreme Court decision allowing same-sex couples to marry. Its lead lawyers are unlikely allies: Theodore B. Olson, the former solicitor general under President George W. Bush, and a prominent conservative; and David Boies, the Democratic trial lawyer who was his opposing counsel in Bush v. Gore. The two are mounting an ambitious case that pointedly circumvents the incremental, narrowly crafted legal gambits and the careful state-by-state strategy that leading gay-rights organizations have championed in the fight for marriage equality. The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.

In other words, if Ted Olson and David Boies are successful in getting the Perry case to the Supreme Court and then persuading the Supremes of the merit of the case, they will not simply overturn California’s Prop 8. That, my dears, will be the ball game.

Yet, if the challenge fails, supporters worry quite rightly that it will set back the cause of gay marriage for a very, very long time.

So, what drew conservative, Federalist Society member Ted Olson to this issue? And why has his one-time adversary David Boies joined with him? And why have they launched the case now—when many gay legal rights experts warned against a new court challenge at a time that the majority of public opinion does not yet support it?

Margaret Talbot covers all of this and more. Plus she lays out the legal thinking that has caused Olson and Boies to decide that the time was now, not later.

In addition to reading the article, do check out Terry Gross’s interview with Talbot on Wednesday’s Fresh Air.

(I recommend paying special attention to the legal concept of “strict scrutiny” that Talbot explains to Terry around or a little after the 17:50 minute mark. It is an intriguing term could be critical to the case’s failure or success. )

Even though Talbot is in D.C., she has been following various experts and advocates who are inside the courtroom tweeting and live blogging the fabulously dramatic, character-rich and anecdote-filled case, and then she has blogged her own daily analysis. (Oh, brave new interactive world.)

Much has gone into the formation of this case. And much has been arrayed against it. Margaret Talbot has done us the favor of giving us the case’s background—in the form of the legal and the human details.


  • San Francisco is a long way from Dayton, Tennessee, where the trial of the last century was broadcast over radio to the thrilled attendance of millions of Americans, who heard the best trial lawyers of the day battle it out over the doctrine of biblical creation vs. evolution. But San Francisco is shaping up to host the trial of the new century, where God is again mocked, and biblical foundations are rocked to their core. This time, the new intellectual orthodoxy is challenging the wisdom of God in ordaining marriage.

    On the other side, Charles Cooper is leading the troops defending marriage. He is a distinguished “super lawyer” himself, having clerked for William H. Rehnquist, former chief justice of the U.S. Supreme Court, and having served in the U.S. Justice Department’s Civil Rights Division.

    The trial judge, Vaughn Walker, has ordered that video feeds of the trial be posted on Youtube. As of this writing, the Supreme Court has temporarily stayed the broadcast of the trial. Judge Walker was one of a three part panel of judges that rushed through rules for broadcasting trials, and this would be the first Federal trial in history to be broadcast, if the stay is lifted. The pro-marriage team argued successfully in the Supreme Court that broadcast of the trial would subject witnesses to potential harassment and violence, in light of the campaign against those who donated funds in support of Proposition 8.

    In the Scopes case, those challenging the law against teaching evolution never intended to win the case. The point was to shine a spotlight on what were regarded, in their view, as oppressive restrictions on free speech, and legitimate science. So today, those challenging marriage have so little basis in either fact or law, that it would appear the real purpose of the case is to create a media event to mock marriage, and create sufficient cultural momentum to bring in gay marriage. Obviously, televising the trial would perfectly serve this goal.

    What are the facts and the law? The U.S. Supreme Court has ruled that homosexuals do not enjoy special rights under the equal protection clause. Thus, the state merely has to prove that a law has a rational basis, and need not justify its allegedly discriminatory impact on homosexuals. It is very difficult to prove that any law lacks a rational basis. Olsen and Boies bear a very high burden to prove that Proposition 8 has no rational basis. Alternately, they can argue for a change in the law, and that homosexuals ought to enjoy special protections. They may succeed in Federal Court in San Francisco, given a liberal court. They may also succeed in the Ninth Circuit U.S. Court of Appeals. They are unlikely to convince the U.S. Supreme Court to change course.

    What about the facts? Monogamous marriage has dominated culture and civilization throughout human history. Alternatives have been exceptional, and remarkably unsuccessful. In the first day of trial, a Harvard scholar argued that ancient Jews practiced polygamy. Rabbinic scholars, if called to testify, will enlighten the court that while the Bible never explicitly forbade polygamy, the experiences recorded there demonstrated plainly that it is socially destructive, causing the rabbis to impose a ban on polygamy. After all, there would be peace in the Middle East today if Abraham had been faithful to Sarah.

    Experts are expected to testify that marriage is a child centered institution, essential for the preservation of society. Changing the nature of the institution so that it is a matter of purely personal choice will have devastating impacts on children, and on society.

  • “Monogamous marriage has dominated culture and civilization throughout human history.”

    Uh…unfortunately, no. Read your Bible – to borrow from a big sign outside of the Scopes courtroom (incidentally, the lead in that prosecution, WJ Bryan, was not “one of the best trial lawyers in the country” and I don’t say that disparagingly because I have great respect for him. It’s just a fact. He had virtually no trial experience, although he did have a great reputation as an orator at political rallies and in Chautaqua tents.) The Bible refutes your statement I quoted utterly, and even in today’s world your claim is essentially false – as I said, unfortunately, because I am a supporter of the state only sanctioning monogamous marriage.

    That said, this case has absolutely nothing to do with challenging monogamy. It’s not on trial. What’s on trial is whether civil marriage can exclude gay couples. Your argument is shot through with holes and simply a tendentious opinion, but its weakness is most evident in its predication on false and/or irrelevant assertions. Among other things , Boies and Olsen will be defending the integrity of families with children – who happen to be gay. There IS an emotionally devastating impact on people raising children in question, and you are on the side pushing to keep that devastation of gay-parent families in place. The point about the defense strategy and youtube is just hot air, incidentally, and the legal basis of the claim is powerful, despite your ill-founded assertions – if one isn’t in the thrall of bigotry, paranoia or half-baked notions about history. There’s not much one can do in arguing with folks who’ve internalized that mixture of nonsense and emotional tics.

    I will admit that I don’t have much tolerance for bigotry on this issue – and it IS bigotry – because I have gay relatives and know a number of monogamous gay-parent families. I know some gay couples who have adopted special needs kids no one else wanted. To watch this thing knowing good decent people who are being discriminated against and families that aren’t being given equal protections is sad. There are also religious communites that have sacramental marriage rites for gay, monogamous couples who are being told by the states that aren’t inclusive their views on marriage are wrong, so the religious argument cuts both ways. In fact, religious communities can perform whatever marriage ceremonies they believe in by their lights. Civil marriage has nothing to do with that issue. In fact, given the divorce rate, I would be shocked if any religious community wanted to align itself spiritually with the existing standards and practices for state-sanctioned marriage, the bar is so low.

  • Incidentally, I wish those Rabbinic scholars well in defending monogamy against polygamy. If they could also make a constitutional argument as to why gay couples don’t deserve the same protections as heterosexuals, they might have some relevance to the case. The point is, “rabbinical scholars” or no, that marriage is and has always been defined in the context of history and culture. There is no credible counter-argument to that fact. Even in societies that have been predominantly monogamous (or serially monogamous, such as ours) the legal constructs (regarding the rights of women especially) and social mores have changed dramatically. For all of the faux erudition on display above, we are witnessing a remarkably crude and ignorant argument.

  • Let it also be noted that the only serious challenge to exclusively sanctioning monogamy in United States history came from a sect of religious conservatives – probably one of the single most reliably right-wing religious groups in the country. Also, of course, one of the chief propagandists for Prop. 8. The irony and hypocrisy sort of reeks…

  • I saw a sign at a courthouse in SF; “All you need for a marriage is love”. It’s much harder to speak of the sacredness of marriage when the Divine institution has been crumbling right before our eyes.

    Even though “love” is the claimed motive for gay marriage, I’m shocked at the undercurrent of bitter hate that moves through this cultural movement. It’s a easy river to slip into–and drown.

  • Is there a basic human “right” to get married. To many of us, that is not a given. In the words of Thomas Sowell,

    1. Marriage is not a right but a set of legal obligations imposed because the government has a vested interest in unions that, among other things, have the potential to produce children, which is to say, the future population of the nation.

    2. Gays were on their strongest ground when they said that what they did was nobody else’s business. Now they are asserting a right to other people’s approval, which is wholly different.

    3. None of us has a right to other people’s approval.

  • Janine – gays are parents. They adopt and also concieve children in ways that heterosexuals do under their legal protections. The only folks concerned about protecting families, parents and children in this argument are pro-gay marriage. You are either ignorant of the facts on the ground regarding gay folks raising children or you don’t care about parents and families unless they have the same sexual preference as yourself. And Sowell’s column is absurd, frankly. This is about rights under the law. I don’t approve of people who link to crap like TownHall columns, where cranks like Sowell, harridans like Malkin and Coulter and half-wits like Jonah Goldberg predominate. I think you’re probably screwing up your kids if you transmit that kind of garbage to them. I’d rather see people in thrall of those passions not being fruitful and multiplying if the truth be known. Preference for TownHall punditry are a cultural phenomenon which is perverse and a danger to society IMHO. But that particular belief of mine – which I hold sacred and which I am certain is divinely inspired, as I could explain if we had more time – doesn’t give me or the populace at large the right to discriminate against you in the arena of marital or parental rights.

  • Hey, if Mormon Elders can assert that their, uh, “interesting” beliefs are the product of Divine Revelation, so can I…

  • You are welcome to put your perversities on display for the rest of the thread, asshole. I’m out of here…

  • I recently read a book on the history of miscegenation law and it’s just the same thing. It really is. Read with today’s eyes, the legal arguments are so twisted to justify the social norms of the day and the moral arguments so obviously wrong. One day, the arguments against gay marriage will seem archaic and foolish. Hopefully that day comes soon.

    Reg, nice post, but I’m not sure it’s going to be productive to have an argument with somebody who writes this:
    “After all, there would be peace in the Middle East today if Abraham had been faithful to Sarah.”

  • Incidentally, Celeste, I didn’t see your comment when I came back and impulsively posted that last response to the famous Stooge. But I will say this – it’s not a “personal swing” to note that someone like Woody who uses “gay” as a pejorative is an asshole. It may not be a term of art, but it’s objectively accurate. If anyone wants to counter my comments above – hopefully with something other than garbage about “mocking God”, which if one wants to get into that the anti-equality folks are more likely doing than anyone else in this discussion – they are welcome to do so. But now that the thread has entered it’s inevitable “stooge” stage, I’ve got more pressing matters. Anyway, thanks for this post and pointing people to the Talbot article.

  • It really gets tiring with liberals getting activist judges to overturn democratic votes of citizens. You lost the vote. Live with it.

  • Mavis, the Supreme Court erred on the side of Freedom of Speech. It’s okay to overturn prior decisions unless you agree that all bad precedents should stand, like the one on Dred Scott. You should be concerned that the ultra-liberal judges oppose freedom of speech.

    The people voted. Liberals should suck it up and take it like men. If any group can do that, it should be the gays.

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