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From the outset, lawyers knew stakes high in Prop 8 challenge

From the outset, lawyers knew stakes high in Prop 8 challenge

By John Glynn

They are called the “odd couple,” two prominent and respected attorneys who opposed each other in Bush v. Gore in 2000 and later teamed to win a landmark U.S. Supreme Court ruling opening the constitutional door for gays to marry.

Attorneys Ted Olson (far left) and David Boies (far right) discuss their historic challenge of California's Proposition 8. 

For Theodore (Ted) Olson and David Boies, the decision to challenge California’s Proposition 8 was an easy one -- a marriage of two legal giants who both grew up in California and viewed gay rights as one of the remaining civil rights battles. With both having lawyer-wives as “partners,” Boies had to convince Mary Boies to support the effort.

“I didn’t see anything good happening,” said Mary Boies, noting the make-up of the high court.  “And this might set the whole movement back by suffering a loss.”

Olson, Boies and their lawyer wives provided a warm and touching retrospect of the landmark case Saturday at the ABA Annual Meeting in Boston. Their session kicked off 34 CLE sessions over two days as part of the ABA’s new Magnitude 360 format.

The group, along with moderator Margaret Marshall, former chief justice of the Massachusetts Supreme Judicial Court, wove the background of Proposition 8, legal precedent and personal recollections into the 90-minute CLE Showcase Program, “The Case for Marriage Equality.” Olson and Boies provided a tutorial on the step-by-step legal foundation they built that led to the Supreme Court essentially reinstating gay marriage in California in late June 2013 and encouraging the drive nationwide.

As recounted by the two lead lawyers and their wives, Olson first received a call from a former sister-in law, who served as an emissary for a group of liberal activists after California voters in 2008 approved a constitutional ban on gay marriage, known as Proposition 8. A well-known conservative lawyer who served as solicitor general in the Republican administration of President George W. Bush, Olson subsequently met with Rob Reiner, the actor, director, producer and activist and his wife.

As Olson remembers the meeting, the Reiners wanted to “take my temperature” and determine if he was somebody they could trust with such an effort given his background. While their politics were poles apart, they quickly shared their thinking that governmental discrimination based on sexual orientation should not be allowed.

Olson also checked with his wife, Lady Booth Olson. “We obviously agreed on an issue for once,” she said Saturday. “We had been together six years. It was a watershed moment.”

Olson then contacted Boies because he thought the legal team needed to be politically broad and the argument presented “as a case of American values” rather than on partisan or liberal or conservative lines. They also agreed that given the stakes, the legal challenge had to be brought by first-rate lawyers with good firms. Olson is with Gibson Dunn & Crutcher while Boies is a founder and named partner in Boies, Schiller & Flexner LLP.

“Somebody was going to bring this case in California,” Olson said, noting many thought the issue was not ripe for legal change. “A decision against us could be devastating and set gay marriage back.”

Both lead lawyers initially believed the case would eventually go to the high court. One the first steps they took in developing their legal reasoning was to walk through Supreme Court precedents and identify who was on the court at the time and how they voted. Decisions in two state cases – one overturning a state ban on marriage for child-support scofflaws and the other involving felons -- provided some legal comfort that the high court could side in their favor.

“If you put those two (cases) together, and if you believe what that reasoning is, this will follow,” Boies said he thought at the time.

The other key was to have an evidentiary hearing or trial, rather than pursue a temporary injunction because this would allow for evidence and minimize the political arguments. The lawyers credited then U.S. District Court Judge Vaughn Walker, who presided over the bench trial, as pushing for a trial to develop a record because of the significance of the case.

The judge made clear, Olson recalled, that it was “not important what we decide but how we decide (it).”

Altogether, 19 states and the District of Columbia have allowed for gay marriage, with a patchwork of laws and prohibitions in 31 other states. The lawyers believe with several different cases in the pipeline, it will take about two full terms of the Supreme Court before fairly settled case law becomes evident.

Given the wide variety of legal issues emerging tied to gay marriage, moderator Marshall observed about gay marriage and the law: “We haven’t even begun to think about (all the possibilities) in so many different contexts.”

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