The Jury Talks Back


Ted Olsen and David Boies File Federal Prop 8 Case

Filed under: Uncategorized — Kevin M @ 7:40 pm

And no,  not as plaintiffs.

David Boies and Ted Olsen last faced off in Bush v Gore, on opposite sides.  Olsen was Bush’s Solicitor General and Boies won the US’s antitrust case against Microsoft (later lost on appeal).  Now they are together, on behalf of two same-sex couples who wish to marry and claim that California’s Prop 8 violates their federal rights to equal protection and due process.

It’s a hard case to win, but those are two very good lawyers.  I’d rather not bet against them.


  1. Seems a bit early for this; I think that ten years from now the case would be a slam-dunk, but today it’s a harder slog.

    Comment by aphrael — 5/26/2009 @ 10:20 pm

  2. God and Ayn Rand willing, the Supreme Court will sanely call this a State issue, and reject it.

    Comment by Scott Jacobs — 5/27/2009 @ 9:33 am

  3. Ayn Rand is dead. Haven’t you heard? She’s not married any more. Death did them part.
    So if it’s rejected as a state’s rights issue would that over turn DOMA, a federal law? Any lawyers here?

    Comment by fregan — 5/27/2009 @ 11:02 am

  4. Scott Jacobs: they might refuse to take the case, but both Loving v. Virginia and Zablocki v. Redhail suggest that there is a federal equal protection claim regarding state marriage laws: in one case, state bans on interracial marriage violated equal protection, and in the other case, a state law prohibiting marriage by men who are delinquent in child support payments violated equal protection.

    Comment by aphrael — 5/27/2009 @ 1:04 pm

  5. Boies and Olsen will be going up against California’s Attorney General. No, I would not want to bet against them, either.

    Comment by nk — 5/27/2009 @ 5:06 pm

  6. NK: You think AG Brown might be less than committed to defending this system?

    Comment by aphrael — 5/27/2009 @ 5:13 pm

  7. Heh!

    Brown is committed to God only knows what. Don’t trust him. I was actually referring to the competence of his deputies. (I have no doubt about his competence. He has none.)

    Comment by nk — 5/27/2009 @ 6:37 pm

  8. In law school, there were two California cases in our textbooks, both argued by the same lawyer representing California. The first was a Fourth Amendment case — the police taking blood from an unconscious person for use as evidence in a DUI. The defendant did not have a lawyer. California won. The second case was a guy wearing a t-shirt with “Fuck the Draft” on it into a courtroom. This time, the defendant had a lawyer. California lost.

    Comment by nk — 5/27/2009 @ 6:43 pm

  9. I was shocked at the quality of performance by the deputy AG who argued the Prop 8 cases; I almost thought Brown had deliberately thrown the case. (The attorney for the City/County of SF, on the other hand, was phenomenal).

    Comment by aphrael — 5/27/2009 @ 9:40 pm

  10. When I was an appellate defender, my opponents most of the time were the State’s Attorneys’ appellate service and the AG. But on important cases, especially of first impression, the county States’ Attorneys, who had conducted the trial, would argue for the State themselves.

    Comment by nk — 5/28/2009 @ 6:06 am

  11. I think the most notable thing about this development is that Boies and Olsen demonstrate that this is not a fringe issue anymore.

    Comment by Kevin Murphy — 5/28/2009 @ 8:01 am

  12. apharel: Good point. I suspect that most of the actual argument in favor of upholding Prop 8 will be in the form of amicus curie briefs.

    Comment by Sean P — 5/28/2009 @ 4:02 pm

  13. Kevin Murphy: that’s a good point.

    On some level, I’m amazed. Fifteen years ago gay marriage was a crazy idea with no significant political support. The ground has shifted on this issue blindingly quickly.

    Comment by aphrael — 5/28/2009 @ 5:07 pm

  14. Aphrael,

    I was wondering if you could comment on the application of the dissenting opinion in Plessy v. Ferguson, and Brown v BoE, and how they might be applied to this.

    Also, I was under the impression that while laws may have been overturned that banned gay marriage, no Amendments to state constitutions had been shot down at the SCotUS level. I may, however, be remembering incorrectly – or simply poorly informed.

    I ask the first because one of my more “bleeding-heart” friends (who is still convinced at the near-divinity of TAO) suggested them, the second because I seem to recall Ohio and other stats passing amendments to their state Constitutions that banned gay marriage, and never heard about them being over-turned.

    Comment by Scott Jacobs — 5/29/2009 @ 8:01 am

  15. There have been two relatively recent “gay” cases to the Supreme Court, Scott. Romer v. Evans (equal protection) and Lawrence v. Texas (due process). Neither had anything to do with same sex marriage.

    Comment by nk — 5/29/2009 @ 11:08 am

  16. Olsen says the chances with this Supreme Court are good, and he’s argued before them more than anyone, having been Solicitor General for much of Bush’s term. He really ought to know.

    Comment by Kevin Murphy — 5/29/2009 @ 4:08 pm

  17. Scott: I haven’t read the Plessy dissent, and it’s been a while since I’ve read Brown, so i think I’ll have to not comment for a bit. I’ll add looking at them with an eye to this to my todo list. :)

    That said, my off-the-cuff thought with respect to an equal protection argument for constitutionally mandated gay marriage is this: the tough question is how you tell what classifications get you strict scrutiny. I don’t buy that it’s just race; but the 14th amendment doesn’t really do a whole lot to tell us what the rules are for classifications other than race.

    If strict scrutiny applies, then I think the game’s up; that brings us back to the same essential reasoning used by the courts (VT, IA, MA, CA) which have mandated either gay marriage or equal not-marriage. If, on the other hand, rational basis review applies, then the game is also up, as there’s clearly enough to meet that standard.

    If the preceding two paragraphs came across as proto-lawyerese gibberish, please complain, and I’ll rephrase. :)

    Comment by aphrael — 5/29/2009 @ 5:07 pm

  18. Harlan‘s Plessy dissent is one of the finer dissents in SC history, pointing out that the 14th Amendment was in no way ambiguous on the subject of racial discrimination. Well worth reading.

    The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

    The Brown court would have been well advised to say “What he said.” rather than their convoluted approach.

    Comment by Kevin Murphy — 5/30/2009 @ 2:04 pm

  19. There is also the possibility that the Supreme Court will take the tack the Hawaii Supreme court took back in 1996 and hold that prohibitions against gay marriage constitute gender discrimination, since gay men aren’t probited from marrying per se, they are just prohibited from marrying other men, whereas a similarly situated female is not prohibited from marrying that same man. This argument is extremely out of vouge lately, probably because gender discrimination is applied to its own unique standard (intermediate scrutiny, which would probably be enough to uphold the gay marriage ban).

    Comment by Laughner — 5/31/2009 @ 8:34 pm

  20. I think it’s pretty clear how the 9th Circuit would rule…

    Comment by Kevin Murphy — 6/1/2009 @ 12:06 am

  21. Kevin: what do you think the odds are that the Supreme Court would then decline to take the case, waiting for a circuit split on the issue to resolve it?

    Comment by aphrael — 6/1/2009 @ 11:07 am

  22. Zero, of course. But it will take a while. The better question is “do they grant a stay?”

    Comment by Kevin Murphy — 6/1/2009 @ 4:27 pm

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