New York Times

January 11, 2010

Two Ideological Foes Unite to Overturn Proposition 8

By JESSE McKINLEY
 
SAN FRANCISCO — The last time David Boies and Theodore B. Olson battled in a courtroom, the presidency hung in the balance as they represented opposite sides arguing the fate of the 2000 election.

So Mr. Boies, who worked for Al Gore in the 2000 case, says he has some perspective on their latest fight. It finds him and Mr. Olson, one of the nation’s most prominent conservative litigators, working together in an attempt to overturn Proposition 8, the 2008 California ballot measure that outlawed same-sex marriage.

“About nine years ago, people accused me of losing the whole country,” said Mr. Boies, a Democrat. “But this time, Ted and I are together.”

Opening statements were expected Monday in Federal District Court in San Francisco, in a case that is being anxiously watched by gay rights groups and supporters of traditional marriage nationwide.

“It’s not just a trial of gay marriage,” said Maggie Gallagher, the president of the National Organization for Marriage, a backer of Proposition 8 and other measures to forbid same-sex marriage nationwide. “It’s a trial of the majority of the American people.”

The case comes at a time when gay groups have suffered several setbacks, including the defeat of same-sex marriage legislation in New York and New Jersey and a vote last fall that overturned such unions in Maine. Efforts to overturn Proposition 8 with another ballot measure in California also face uncertain prospects, with most major groups having decided to wait until at least 2012 to go back to the voters.

All of which has heightened expectations for the Boies and Olson case, filed in the spring after the California Supreme Court upheld Proposition 8, which passed with 52 percent of the vote after a bruising and costly campaign.

Groups advocating equal rights for gay people were planning to rally in front of the courthouse here on Monday morning, and officials were expecting large crowds in the courtroom and in a separate viewing room. Live video and audio were to be piped into federal courthouses in California, New York, Oregon and Washington.

In addition, under a decision last week by Judge Vaughn R. Walker, the district court’s chief judge, who is hearing the case, the trial was to be videotaped and distributed online. Supporters of Proposition 8 have objected to that, and they appealed to the United States Supreme Court on Saturday to keep cameras out of the courtroom.

“The record is already replete with evidence showing that any publicizing of support for Prop. 8 has inevitably led to harassment, economic reprisal, threats and even physical violence,” Charles J. Cooper, the lead counsel for the defense, wrote in a brief to the court. “In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide.”

Indeed, several of the figures who helped pass Proposition 8 are expected to be called to testify under oath, something that gay rights advocates hope will play in their favor.

“It has the potential to be an extraordinarily powerful teaching moment because it’s going to be televised,” said Jennifer C. Pizer, senior counsel and national marriage project director with the gay civil rights group Lambda Legal in Los Angeles. “This is usually just bandied about on attack TV shows. But this promises to be a serious examination of the arguments in a trial setting, with evidence and cross-examination.”

During the trial, which is expected to last three weeks, Mr. Olson and Mr. Boies plan to argue that Proposition 8 violates the constitutional guarantee of equal protection and due process.

“The biggest challenge with any of the judges we’ll face is simply to get them to focus on the law and the facts and not on the inertia of history,” Mr. Boies said. “I think the only real argument that the other side has is, ‘This is the way its always been.’ ”

But supporters of Proposition 8 say that California voters were well within their rights to establish marriage as between a man and a woman, as voters in more than two dozen other states have done.

“There are very sound public policy reasons to define marriage as one man and woman, including the inevitable fact when you put men and women together, they produce children,” said Jordan Lorence, senior counsel with the Alliance Defense Fund, a conservative Arizona-based group that will argue for Proposition 8. “To put that under the microscope of a compelling state interest test is the wrong thing for the court to be doing.”

Some gay rights groups were also initially skeptical of the case, fearing that Mr. Olson and Mr. Boies lacked expertise in the issue and that a loss in federal court could set back efforts for years to come. But most have since rallied behind it.

“I think that having Olson and Boies lead this effort is phenomenal because it’s not just gay rights activists pushing,” said Geoff Kors, the executive director of Equality California, a gay rights group. “It shows that this is not a partisan issue and not an ideological issue. It’s a clear constitutional issue.”

The case is being financed by a recently established nonprofit advocacy group, the American Foundation for Equal Rights. Chad Griffin, the president of the group’s board, said he had been cheered by the surge of support for the case. “We’re all on the same page,” he said “We all have the same goals.”

Mr. Griffin, a communications specialist who served in the Clinton administration, hired Mr. Boies and Mr. Olson, who are ideologically opposed but are friendly outside the courtroom. On Friday, both men were ensconced in a suite of legal offices in downtown San Francisco, prepping witnesses and getting ready for trial.

And while anticipation was running high, Mr. Boies said that much of the testimony would probably “be a little boring,” even if it were televised.

“You don’t get the drama in the presentation,” he said, “that exists in the importance of the issue.”