Main | Thursday, March 11, 2010

Prop 8 Attorneys Ted Olson & David Boies Speak At The New York Times

Last night Perry Vs. Schwarzenegger lead attorneys Ted Olson and David Boies spoke before about 150 journalists at the New York Times headquarters in Manhattan in an event called "Unlikely Allies." In attendance among the print journalists were uber-blogger Andy Towle, activists Corey Johnson and Brendan Fay, former Clinton advisor David Mixner, and former GLAAD director Neil Giuliano.

Olson and Boies spoke eloquently and optimistically about the potential outcome for the case and fielded sharp questions from the audience about the possible ramifications should they lose, the campaign to put cameras in the courtroom, and the pitiful defense put on by Protect Marriage. The event was moderated by NYT Supreme Court reporter Adam Liptak, who opened with an impassioned statement of his paper's support for LGBT rights. Paul Schindler at Gay City News:
It is no exaggeration to conclude that Boies and Olson are confident about their chances before Judge Walker, from whom they expect a ruling no later than June. The next step, they predicted, would be “expedited review” by the Ninth Circuit, perhaps in an “en banc” hearing that includes all of its appellate judges.

Victory at the appellate level –– which would legalize marriage for same-sex couples either in California or possibly in all nine states in the Ninth Circuit –– would speed Supreme Court review, since that victory would certainly be stayed, the attorneys said, until the high court ruled.

Boies and Olson were cagiest on how broad they think a potential district court victory might be. The court could find –– in somewhat analogous fashion to a 1996 Supreme Court case in which an anti-gay Colorado amendment was thrown out –– that voters in California had acted to deny gay and lesbian couples the equal protection of the law, in this case guaranteed by the state rather than the federal Constitution.

Or, Walker could rule that Boies and Olson succeeded in doing what they say they will fight to the end to demonstrate –– that the fundamental right to marry and the equal protection of the laws of the United States are violated when same-sex couples are denied access to civil marriage.

That, of course, would be the ultimate game-changer. Olson, perhaps the nation’s preeminent Supreme Court litigator, and Boies are clearly banking on their ability to win that argument on the merits at the high court, whatever the conventional wisdom about the current justices’ biases.

When asked afterward whether his confidence at the district court level is about winning the general argument or more narrowly restoring the right to marry in California, Boies said he was uncertain, acknowledging that Walker might well reach a decision fashioned to survive review by the Ninth Circuit and the Supreme Court. Even at this first stage, then, politics are not absent from the judicial equation.
Read Paul Schindler's complete article. Below is my short slideshow from the evening, followed by Towleroad's Corey Johnson's pre-event interview with Olson and Boies. I came away even more impressed with the pair, if that's possible. And it struck me that if someone had told me ten years ago that one day I'd be gushingly shaking the hand of the lead attorney in Bush Vs. Gore, I'd have told him that he was full of the crazy. Ted Olson left us with his prediction that Prop 8 would be before the Supreme Court by October 2011. It's almost unimaginable that in just 18 months, this decades-long battle could be over.

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