February 26, 2010
The quest for marriage equality has created some unlikely allies in attorneys Theodore Olson, a conservative, and David Boies, a liberal. Long well-known within the field of law, the two became nationally famous as the opposing counsels in Bush v. Gore
, the Supreme Court case that halted the Florida recount, and resolved the 2000 Presidential election in favor of George W. Bush.
Now the two lawyers, both veterans of multiple Supreme Court cases, have mounted a well-financed legal challenge to Proposition 8, California's 2008 ballot initiative that put an end to same-sex marriage in that state. The case could make it as far as the Supreme Court and define the debate on same-sex marriage for years to come.
On this week's JOURNAL, Olson and Boies join Bill Moyers to discuss why the issue of same-sex marriage is so important, why they chose to pursue the matter in the courts, even against the wishes of some in the LGBT community, and why conservatives and liberals must come together to solve the big issues facing the country.
The case they've brought, Perry et al v. Schwarzenegger et al
, has created a major stir, with some advocates of same-sex marriage worried that they are bringing the case too soon, that a loss at the Supreme Court could set back the movement for same-sex marriage by years. Olson argues that waiting for civil rights is not an option:
In the first place, someone was going to challenge Proposition 8 in California. Some lawyer, representing two people, was going to bring this challenge. We felt that if a challenge was going to be brought, it should be brought with a well-financed, capable effort, by people who knew what they were doing in the courts. Secondly, when people said, 'Maybe you should be waiting. Maybe you should wait until there's more popular support.' Our answer to that was, 'Well, when is that going to happen? How long do you want people to wait? How long do you want people to be deprived of their Constitutional rights in California?'
And on the other side, conservatives have argued that courts shouldn't be involved in this issue, that it's an improper use of "judicial activism." Boies points out that, to the contrary, protecting fundamental rights is a primary role of the court:
Conservatives, just like liberals, rely on the Supreme Court to protect the rule of law, to protect our liberties, to look at a law and decide whether or not it fits within the Constitution. And I think the point that's really important here, when you're thinking about judicial activism, is that this is not a new right. Nobody is saying, 'Go find in the Constitution the right to get married.' Everybody, unanimous Supreme Court, says there's a right to get married, a fundamental right to get married. The question is whether you can discriminate against certain people based on their sexual orientation. And the issue of prohibiting discrimination has never in my view been looked as a test of judicial activism. That's not liberal, that's not conservative. That's not Republican or Democrat. That's simply an American Constitutional civil right.
David Boies is the founder and chairman of Boies, Schiller & Flexner LLP and is widely regarded as one of the nation's preeminent trial lawyers. He has been named "Lawyer of the Year," by the NATIONAL LAW JOURNAL, runner-up for "Person of the Year," by TIME magazine, The antitrust Lawyer of the Year by the New York Bar Association, and "Commercial Litigator of the Year" by WHO'S WHO.
Mr. Boies is perhaps best known for serving as lead counsel for former Vice-President Al Gore in connection with the litigation relating to the 2000 Presidential election and for serving as special trial counsel for the United States Department of Justice in its successful antitrust suit against Microsoft. In addition, from 1991 to 1993, Mr. Boies was counsel to the Federal Deposit Insurance Corporation in its litigation to recover losses for failed savings and loan associations. Mr. Boies also served as chief counsel and staff director of the United States Senate Antitrust Subcommittee in 1978 and chief counsel and staff director of the United States Senate Judiciary Committee in 1979.
Recent cases include Mr. Boies' successful representation of American Express in its Antitrust case against Visa and MasterCard in which American Express received a record-breaking $4 billion recovery, Mr. Boies' successful defense of Lloyd's of London in the World Trade Center insurance litigation, Mr. Boies's successful defense of NASCAR in Antitrust litigation charging NASCAR with monopolizing the market for championship auto racing, and the representation of Maurice R. "Hank" Greenberg and the C.V. Starr Companies in connection with regulatory and civil litigations.
Mr. Boies is the author of numerous publications including COURTING JUSTICE, published by Miramax in 2004, and PUBLIC CONTROL OF BUSINESS, published by Little Brown in 1977. He has taught courses at New York University Law School and Cardozo Law School.
Mr. Boies received honorary LL.D. degrees from the University of Redlands, and from New York Law School, the Lifetime Achievement Award from the LD Access Foundation, the Outstanding Learning Disabled Achievers Award from the Lab School of Washington, D.C., and the William Brennan Award from the University of Virginia. He is a fellow of the American College of Trial Lawyers and the International Academy of Trial Lawyers, and a trustee of St. Luke's/Roosevelt Hospital Medical Center and of Continuum Health Partners, Inc.
Theodore B. Olson is a partner in Gibson, Dunn & Crutcher's Washington, D.C. office; a member of the firm's executive committee, co-chair of the appellate and Constitutional law group and the firm's crisis management team.
Mr. Olson was solicitor general of the United States during the period 2001-2004. From 1981-1984 he was assistant attorney general in charge of the Office of Legal Counsel in the U.S. Department of Justice. Except for those two intervals, he has been a lawyer with Gibson, Dunn & Crutcher in Los Angeles and Washington, D.C. since 1965.
Mr. Olson is one of the nation's premier appellate and United States Supreme Court advocates. He has argued 56 cases in the Supreme Court, including Bush v. Palm Beach County Canvassing Board
and Bush v. Gore
, stemming from the 2000 presidential election; prevailing in over 75% of those arguments. Mr. Olson's practice is concentrated on appellate and
Constitutional law, federal legislation, media and commercial disputes, and assisting clients with strategies for the containment, management and resolution of major legal crises occurring at the federal/state, criminal/civil and domestic/international levels. He has handled cases at all levels of state and federal court systems throughout the United States, and in international tribunals.
Mr. Olson's Supreme Court arguments have included cases involving separation of powers; federalism; voting rights; the First Amendment; the equal protection and due process clauses; sentencing; jury trial rights; punitive damages; takings of property and just compensation; the commerce clause; taxation; immigration; criminal law; copyright; antitrust; securities; telecommunications; the environment; the internet; and other federal Constitutional and statutory questions.
Mr. Olson has served as private counsel to two Presidents, Ronald W. Reagan and George W. Bush, in addition to serving those two Presidents in high-level positions in the Department of Justice. He has twice received the United States Department of Justice's Edmund J. Randolph Award, named for the first attorney general, its highest award for public service and leadership. He has also been awarded the Department of Defense's highest civilian award for his advocacy in the courts of the United States, including the Supreme Court, on behalf of that department. He was a visiting scholar at the National Constitution Center in 2007.
Mr. Olson served in the President's Privacy and Civil Liberties Oversight Board from 2006 to 2008. He is co-chair of the Knight Commission on the Information Needs of Communities in a Democracy. He is also a member of the board of trustees on the Ronald Reagan Presidential Foundation and a member of The steering committee on The Sandra Day O'Connor Project on the State of the Judiciary.
Mr. Olson is a fellow of both the American College of Trial Lawyers and the American Academy of Appellate Lawyers. The NATIONAL LAW JOURNAL has repeatedly listed him as one of America's Most Influential Lawyers. THE AMERICAN LAWYER and LEGAL TIMES have characterized Mr. Olson as one of America's leading advocates. In December of 2007, WASHINGTONIAN magazine listed him as number one on its list of the finest lawyers in the nation's capital. THE NEW YORK TIMES columnist William Safire has described Mr. Olson as this generation's "most persuasive advocate" before the Supreme Court and "the most effective solicitor general" in decades.
Mr. Olson received his law degree in 1965 from the University of California at Berkeley (Boalt Hall) where he was a member of the CALIFORNIA LAW REVIEW and Order of the Coif. He received his bachelor's degree from the University of the Pacific, where he was recognized as the outstanding graduating student in both forensics and journalism. Mr. Olson has written and lectured extensively on appellate advocacy, oral communication in the courtroom, civil justice reform, punitive damages, and Constitutional and administrative law.
After the Supreme Court prevented video of the trial from being distributed on the internet, two filmmakers hired actors to reenact the entire trial transcript, and posted the videos and the original transcripts.Perry et al v. Schwarzenegger et al
The American Foundation for Equal Rights hosts all related documents and transcripts of the case on their Web site.
American Foundation for Equal Rights
The group that has brought the lawsuit challenging Proposition 8.
ProtectMarriage.com Action Fund
A group formed to promote and defend Proposition 8.
Coverage of the Case "A Risky Proposal: Is it too soon to petition the Supreme Court on gay marriage?"
By Margaret Talbot, THE NEW YORKER, January 18, 2010. "Boies At Play"
By Margaret Talbot, THE NEW YORKER, January 26, 2010. Special Report: Same-Sex Marriage
The SAN JOSE MERCURY-NEWS provides full coverage of Proposition 8 and the trial. Free subscription required to view some articles.
Additional Background on Same-Sex Marriage"Amid Small Wins, Advocates Lose Marquee Battles"
By Kate Zernike, THE NEW YORK TIMES, December 2, 2009."The High Price of Being a Gay Couple"
By Tara Siegel Bernard and Ron Lieber, NEW YORK TIMES, October 2, 2009.