Boies Predicts Supremes Will Take Up Prop 8

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He said the proponents of Proposition 8 relied on outdated notions of marriage, and he got a rise from the audience when he noted that the trial judge expressed skepticism at the notion that marriage should be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.

 

Follow J.D. Lasica on Twitter: www.twitter.com/jdlasica

Comments

[WinstonCourt]

06:13 PM on 08/10/2010

You would think these public servants, government and the courts would be swift in moving away from all this and their ignorance and demonstration of lack of education. It is apparent, from their statements and decisions they were, and perhaps still are, ignorant to the simple fact that God gave marriage to man in a time predating government and courts. They, government and the courts, are best to obey their own ends and workings and leave marriage alone for their claim of there being a separation of church and state. The book of Genesis, a compilation of oral traditions handed down since antiquity and the apparent beginning of man, and finally recorded by Moses, around 1440-1400 B.C., is the strongest evidence of their, government and courts, lack of authority to be involved in marriage. Have things worsened to the point they can no longer even recognize their own ignorance and errors? Then surely, the times written of, about satan taking rule, are here upon us! Or, are they claiming they have already held trial and decided against God and in their favor?
Besides, there is no inequality, as this article points out: http://www.renewamerica.com/columns/fischer/100808

[FLVolFan]

10:15 PM on 08/10/2010

Truly a bizarre and disjointed post. It was based on a book that may or may not be fiction. Again, this country was not founded on your God. If you want a theocracy, you would do well to move to Saudi Arabia or Iran - obviously the views expressed in your post are more closely aligned with those two governments, not America.

[NWBrunette]

01:38 AM on 08/08/2010

Every single legal argument advanced in the case was in favor of gay marriage. The defense had not one - all they had was their personal version of morality and tradition. Which is nice but irrelevant. The only question of the righties on the supreme court is whether their h0m0ph0bia is greater than their respect for the law. Even for the four corporatist right-wing activists that's going to be tough. I mean really, what would they write in their dissent? In other cases, even when they judge incorrectly they have some legal basis (however thin) for doing so. There's none here.

[FLVolFan]

10:15 PM on 08/10/2010

Wonderful post. Fanned!

[zetacplus]

05:11 PM on 08/07/2010

The appeals court will agree with Walker's decision. The SCOTUS will take it up and affirm the ruling (Kennedy being the deciding vote) thereby making gay marriage open to every US resident. All states will have to comply to the federal ruling which means those that altered their constitutions to discriminate will have to remove that from their constitutions. We will also be given equal benefits at the federal level.

Equality, it's nice to finally see it becoming a reality.

[josephRoehl]

05:01 PM on 08/07/2010

Good report J.D. Lasica. Boies is certainly right to be optimistic. My only concern is why it should take a year to confirm this ruling. When other national security issues for heterosexuals and all Americans is obvious, there've been rulings within weeks and yet when it comes to the security and rights of gays and lesbian families it shouldn't take a day to rationally consider all these lame prejudices and dismiss them out of hand. IMO let's do this right, 9th Circuit & SCOTUS sweep away bigotry in America immediately in all our laws

[Jdaddy1951]

08:53 PM on 08/06/2010

Unless a new vacancy opens up on the court --- and it could, for any number of reasons --- it's probably going to be Justice Anthony Kennedy who will be the deciding vote on this Prop 8 thing. Kind of ironic that one of the less visible and well-known members of the court will be thrown into the spotlight. I expect Kennedy's Wikipedia article will get a lot of hits in the next year or so.

[Alan Eckert]

06:16 PM on 08/06/2010

I was at the talk last night, and the best part was when he choked up talking about all those who have fought this fight before to get to where we are now. There is so much that can be learned about what is coming next, so anyone who is interested in this case should certainly listen or watch it. One important piece to get out of his talk is to refute anyone who claims to dislike this ruling for anything other than the facts. Demand to know which specific parts of the case they don't agree with and why. Heck, most of them probably haven't even read it. The audio is up now and can be found here: http://www.commonwealthclub.org/archive/10/10-08boies.html

[Jill Kennedy]

01:44 PM on 08/06/2010

It's all about Anthony Kennedy. And I have good reason to think he'll vote on the side of gay marriage and swing the Supreme Court. There are positive signs everywhere. No turning back. Manka Bros. - the world's largest media company - has clarified its gay marriage employee policy and it's all good.

http://mankabros.com/chairmans-blog/2010/08/manka-bros-gay-marriage-policy.html

[J.D. Lasica]

03:38 PM on 08/06/2010

I agree, Kennedy's the key. He's been a consistent vote for the conservative wing except on issues of free speech and gay rights. This may well be a 5-4 decision, one way or the other.