A pumped-up David Boies said last night that it's a "dead certainty" that the U.S. Supreme Court will take up the issue of same-sex marriage if a federal appeals court sustains the trial court's landmark decision Wednesday overturning California's Proposition 8.
In an hourlong appearance before a capacity crowd of 300 at San Francisco's Commonwealth Club, Boies -- who led the plaintiffs' legal team alongside Ted Olsen -- declined to handicap the case's chances before the conservative High Court. But he said his legal team was "not taking any justice for granted and not giving up" on any of the nine justices.
Boies predicted the often liberal 9th U.S. Circuit Court of Appeals would rule on the case later this year and the Supreme Court would follow in 2011.
Boies joked that Olsen, once a darling of the right who served as opposing counsel before the Supreme Court in Bush vs. Gore, would be instructed to win over the five conservative justices while Boies' job would be to woo the four more liberal justices.
Turning serious, he added that if the Supremes apply the trial judge's findings of fact, "I think we ought to win every one of those justices. I'm not saying we're going to, I'm saying we're not giving up on anybody." (Watch Boies' comments in the 3-minute video excerpt above.)
Boies talked about how people of his generation were reared in an era when gays were publicly discriminated against, citing President Eisenhower's executive order prohibiting gays and lesbians from serving in the federal government in any capacity -- including postal carriers and court typists.
"As you move toward greater equality, people have to abandon decisions and positions they took before. I'm very conscious of the fact that we're going to be arguing this to judges that are of my generation," he said. "You had laws prohibiting gays and lesbians from various employments -- forcing employers to discriminate. That was the culture in which those of us of a certain age grew up. And (now) you have to ask judges to put those cultural influences aside."
Boies said the plaintiffs won at the trial level because "religion does not have a place in American legislation, and that has been true since the First Amendment to the Constitution was passed."
He said the proponents of Proposition 8 relied on outdated notions of marriage, and he got a rise from the audience when he noted that the trial judge expressed skepticism at the notion that marriage should be restricted to couples intending to procreate. "A week earlier the same judge married a couple in their 80s, and I doubt they intended on having any more children."
U.S. District Judge Vaughn Walker, of San Francisco, on Wednesday declared California's same-sex marriage ban, passed by voters on the same day that President Obama was elected president n November 2008, to be in violation of the U.S. Constitution's 14th Amendment guarantees of equal protection and due process of law. Prop. 8's supporters filed their appeal Thursday.
Note: Video by J.D. Lasica. The full video and audio of Boies' appearance will be made public in 10 to 14 days at commonwealthclub.org.