David Boies on Overturning Prop 8, and His Hopes for a Supreme Court Outcome

David Boies, the attorney best known for representing Al Gore in the Bush v. Gore case in 2000, has taken on yet another landmark case in America, this one addressing the constitutionality of gay marriage.

Back in November of 2008, California voters passed an initiative called Proposition 8, which overturned the right granted earlier that year of gay and lesbian couples to marry.

“They changed the California constitution to prohibit gay marriage,” Boies, the chairman of Boies, Schiller & Flexner, explained. “Of course, the voters couldn’t change the federal constitution, so Ted Olsen and I brought a lawsuit in 2009 to have that state proposition declared unconstitutional.”

Despite their divergent political views, Olsen, who represented Bush in the 2000 case and later served as his solicitor general, and Boies found common ground in this case, which they brought against the state on behalf of a gay couple and a lesbian couple who were denied marriage license in California because of Prop 8.

Having faced off against each other in 2000, Boies  was glad to have Olsen, widely considered the leading Republican lawyer in the country, on his side this time around.

“When this came up, we both decided that it was a good thing to do,” said Boies. “And it was good for the two of us to do it because one of the things we wanted to do was send a message that this was not a Republican or a Democratic issue, not a Liberal or Conservative issue.”

Earlier this month, a California judge ruled that Prop 8 was, in fact, unconstitutional. The case will now go to the Court of Appeals, which will consider briefs from both sides in the next few weeks. Because of the case’s importance, Boies noted that the Court set a “very fast” briefing schedule, meaning oral arguments will be heard before year’s end.

As for whether the case will wind up in this country’s highest court, as many are predicting, Boies said, “I think it’s going to the Supreme Court…as the final case on the constitutionality of the prohibitions of gay marriage.”

Considering the present makeup of the Supreme Court—five justices lean to the Right, four to the Left—Boies and Olsen are banking on an unlikely outcome.

“My deal with Ted is that he’s going to get the five justices he got in Bush v. Gore, and I’m going to get the four justices I got in Bush v. Gore,” Boies said. “And we’re going to have a unanimous court!”

They’d also have one particular minister in the Universal Life Church performing a marriage ceremony for Bill White and Bryan Eure, and lord knows who else.

-Julie Kanfer