Making a Supreme Court Case for Gay Marriage
By MICHAEL A. LINDENBERGER
Attorney David Boies knows what it's like to argue a historic case before the U.S. Supreme Court, and he knows what it's like to lose. A decade ago, he squared off against Republican stalwart Theodore Olson before the Justices in Bush v. Gore, the case that narrowly decided the 2000 presidential election in Bush's favor and quickly earned a place in the minds of some legal scholars as one of the high court's most nakedly partisan decisions of all time. Now, thanks to last week's ruling in favor of gay marriage before a federal judge in California, Boies and Olson are working together on a case many feel is as important — and no less political — than Bush v. Gore, and one that is on a collision course with a court that has grown only more conservative over the intervening 10 years.
If the Supreme Court decides to hear their case, Boies and Olson must persuade at least five of its Justices that the decision laid down last week in San Francisco presents the basis for a decision both sides say would be a landmark ruling on one of the fundamental rights in American jurisprudence: the right to marriage. As he awaited the California decision earlier this year, Boies told TIME that no matter what the law says, Justices bring their own perspectives to play as they confront cases that deal with vital questions of public life. "There isn't any doubt," Boies said, "that Justices' private views play a role in how these cases are decided."
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But both he and Olson say that even if the odds appear long, a strong case and powerful arguments can change the minds of even a Supreme Court Justice. "All we, as lawyers, can do, is to present the strongest factual record and most thoroughly researched legal arguments and analysis in the most persuasive manner possible," Olson told TIME on Sunday. "In this case, we have an overwhelming factual record — to adopt the phrase used by the trial judge — and extraordinarily powerful legal arguments."
Much has been made of that factual record, and indeed U.S. District Judge Vaughn Walker spent scores of pages laying out a long list of findings that, he wrote, had been established as fact during the contentious, weeks-long trial. Among the findings was proof that rules of marriage had been fluid across history, that gender roles once held as absolute are no longer as important in understanding or defining marriage, and that gays and lesbians had been historically discriminated against to the point that laws aimed specifically at them merit additional judicial scrutiny.
Olson says he and Boies will use those findings of fact to anchor their legal arguments as they defend the case in the Ninth Circuit Court of Appeals and, if the Justices take it, before the Supreme Court perhaps as soon as the 2011 term. "We have exhaustive and comprehensive highly favorable findings of fact and conclusions of law by an experienced and respected jurist who carefully examined the evidence presented by our nine experts and eight lay witnesses, and the best arguments and evidence that skilled lawyers on the other side could present," he says. "We feel that we have a powerful and compelling record to lay before the appellate courts. We can't do more than that."
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