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David Boies: Why I Took the Case

July 2014
By David Boies

Boies, Schiller & Flexner’s chairman writes about his reasons for joining former rival Ted Olson in the lawsuit that led to a court decision ending California’s ban on same-sex marriage, a decision that the Supreme Court upheld in June 2013.

The case Ted proposed was an opportunity to confront, and hopefully eliminate, the core of antigay bias. In a sense it was not a proposal I was free to immediately accept. The case would, I knew, require a great deal of my time and my firm’s resources – time and resources for which I was aware our plaintiffs could not begin to pay. I also knew that the nature of the case would arouse fierce and passionate opposition, and that there would be a fringe that would direct their anger at my family as well as myself. (During Bush v. Gore death threats against my youngest son, Alexander, had been called in to his elementary school, and many were made against me.)

Fortunately, when I discussed the case with my wife Mary, my children, and my partners at Boies, Schiller & Flexner, later that day, I found that they were as determined as I was that this was a case we should accept. Although the American Foundation for Equal Rights, which was sponsoring the litigation, had offered a partial payment, Jonathan Schiller, Donald Flexner, and my other partners agreed that we would take the case entirely without a fee.

I soon discovered that many in the gay community, including most of those who had long led the fight for equality, were adamantly opposed to our proposed lawsuit to challenge Proposition 8. They did not, of course, oppose our objective, but believed that the time was too soon, that the federal courts were too conservative, that we would lose, and that in losing we risked setting back the movement.

Coming as they did from people who had worked much longer and risked much more in the battle for equal rights than I had, those concerns were entitled to respect. I nevertheless decided it was right to proceed for four reasons.

First, I believed we would win. This was not a case where we were asking the courts to recognize a new right, merely to hold that an established right could not be withheld based on sexual orientation. The combination of Loving and Lawrence, together with numerous Supreme Court decisions holding unconstitutional state laws barring marriages by imprisoned felons and people who had abused a prior marriage, were compelling. Even as staunch an opponent as Justice Scalia seemed to recognize the inevitability.

Second, both our individual plaintiffs and tens of thousands of couples like them in California wanted to exercise what they and we believed to be their constitutional right to marry. I did not know how to tell them this was not their time, that only future generations could enjoy that right.

Third, I believed that simply bringing this case, and the national discussion it would engender, would advance the cause of equality and public support for it. The opposition to marriage equality did not have arguments that could withstand scrutiny. They had a tautological bumper sticker (MARRIAGE IS BETWEEN A MAN AND A WOMAN) and a religious belief (“God forbids gay marriage”) that, however sincerely held, was barred by the First Amendment as a basis for legal decisions. In part because of our reputations (and our “odd couple” relationship that I knew would make good copy), I felt that Ted and I could bring this issue to mainstream America, and I believed that when we did, the common sense and fairness of the American people would do the rest.

Fourth, we believed there was no way that a federal constitutional challenge could be avoided. If we didn’t bring this case for these plaintiffs, someone else would do so for other plaintiffs. It was essential that the case that was decided first be prepared, tried, and presented on appeal as perfectly as possible. With our experience, and with the unparalleled resources our two firms offered, we were confident that we could prepare, try, and appeal the case as well as, and probably better than, any alternative team.

A few times, I asked myself whether my desire to accept this case, and to do so with Ted, was causing me to too quickly dismiss the arguments of those who counseled caution. Each time I concluded this was the right case, in the right place, at the right time, and that Ted and I and our team were the right lawyers to bring it.

From “Redeeming the Dream: The Case for Marriage Equality,” by David Boies and Theodore B. Olson. Published by Viking. Copyright 2014.