In Historic Civil Rights Case, David Boies Co-leads Challenge to Gay Marriage Ban
Pro Bono Highlights
David Boies' cross examination of David Blankenhorn; Vicki Ellen Behringer, courtroomartist.com, copyright 2010
The New York Times likened the landmark showdown over Proposition 8 to the Scopes trial - the 1925 case that challenged a ban on teaching evolution in schools - and placed "the unlikely bipartisan legal team of David Boies and Ted Olson in the Clarence Darrow role."
As the historic civil rights case Perry v. Schwarzenegger headed to trial, much was made over BSF managing partner David Boies teaming up with his one-time courtroom adversary, former solicitor general Ted Olson, to eliminate one of the last remnants of centuries of official discrimination against gays and lesbians.
The recent federal trial commenced on January 11th in San Francisco. Through a thoughtful opening argument by Olson, witness testimony, and blistering cross-examination by Boies, the duo never took their eyes off the basic points that framed their case at trial against California's ban on gay marriage, and which will continue as bedrock arguments as the case proceeds: marriage is a fundamental right; depriving gays and lesbians of the right to marry causes harm to them and to the children they raise; and there is no societal benefit to denying gays and lesbians the right to marry.
A collateral dispute over whether the trial would be televised occurred early on in the courtroom proceedings. The U.S. Supreme Court overruled federal Judge Vaughn Walker's decision to allow a video feed of the trial in a handful of other federal courts. However, a group of Los Angeles filmmakers quickly moved in - in a manner of speaking -to fill the void, creating a dramatic re-enactment of the trial in 12 scheduled episodes with the help of actors who are portraying the judge, counsel and witnesses.
After the plaintiffs and defendants had rested their cases before Chief Judge Walker, Boies told the press, "You heard it from not only our witnesses but from their witnesses. They admitted what was at work here was a religious divide based on prejudice and stereotypes."
In his seminal cross-examination of Kenneth P. Miller, an associate professor of political science at Claremont McKenna College, Boies ably evoked how past discrimination continues to harm gays and lesbians today. Referring to the pointed questioning by Boies, The New Yorker magazine said it was "like watching your cat play with its food before he eats it."
When questioning David Blankenhorn, the founder of the Institute for American Values in New York, Boies was able to expose the baselessness of arguments that homosexual unions hurt heterosexual marriages and have a negative effect on children.
During the 12 day trial, plaintiffs successfully created a compelling evidentiary record by calling 17 live witnesses, many of whom were eminent scholars, while defendants, in the end, put on just two. Closing arguments are yet to be scheduled, but will likely occur in March or April, with a ruling by Chief Judge Walker to follow. Plaintiffs are prepared to advocate their position before the Ninth Circuit and all the way up to the Supreme Court of the United States.
In addition to Boies, the BSF trial team included partners Steven Holtzman and Jeremy Goldman, counsel Rosanne Baxter, and associates Theodore Uno, Richard Bettan, Joshua Schiller, Beko Reblitz-Richardson, Dagmar Rita Myslinska, Marguerite Hogan, Randall Ewing, Sean Rodriguez , Nimrod Elias and Ryan McCarthy, case managers Jason Lipton and Kiera McAuliffe.