David Boies (left) and Ted Olsen Prop 8 Lawyer David Boies: ‘SCOTUS won’t give a gay-bashing opinion’
From 365gay.com
By John Culhane, Professor of Law, Widener University
05.03.2010
David Boies walked right into the Green Room where I’d just settled in to wait for him, shook my hand, and sat down. His escort, Equality Forum’s Communications Director Chip Alfred, reminded me that I had five minutes, and strode briskly away.
Boies was about to be honored (along with his new BFF Ted Olson, who was not in attendance) as an International Role Model at Equality Forum’s Annual International Equality Dinner. The two of them are litigating the challenge to Proposition 8 (and really to the ban on same-sex marriages more generally), and the case is widely expected to go all the way to the Supreme Court.
As the week-long event’s “official blogger,” I was one of several to get a few minutes of face time with him, and I wasn’t going to waste it.
I knew it would be no use trying to knock him off his pegs; Boies has argued before the Supreme Court many times, most notably in the infamous Bush v. Gore case, where he argued for the losing side. He’d always struck me as implacable in a professorial way: relaxed, bright, and comfortable with ambiguity and uncertainty. Nothing about his personal demeanor or mildly ruffled appearance – a bit surprising, given the glitzy, 200-dollar-a-plate event – suggested that my impressions had been off-base.
But I didn’t have time for an amiable chat.
Having listened to Lambda Legal’s Executive Director, Kevin Cathcart, express great skepticism over the likely outcome of the case (“We’ll win until we get to the Supreme Court, then we’ll lose.”), I wondered whether Boies and Olson had solicited input from any of the GLBT impact litigation groups before filing suit.
They had, but Boies acknowledged that the response was “mixed,” and that the legal advocacy groups were concerned that the suit could set back the careful and deliberate work they’d been doing on a state-by-state basis.
“Mixed” doesn’t describe the reaction I remember. Indeed, some of these groups were little short of outraged when the suit was filed, although they’re now committed to helping in whatever way they can. Boies thinks, though, that even if they lose the suit, “the state work can continue to go on independently.”
Wouldn’t legislative advocacy or even judicial decision-making at the state level be negatively affected by a Supreme Court loss, though? After all, public education can be bad as well as good. “A 9-0 decision could be bad, but I don’t expect that to happen,” Boies offered. “I don’t expect a gay-bashing opinion coming out of this Court.”
“This may not be a good analogy, but despite differences between members of the Court on affirmative action, they’re not going back to an era where the Supreme Court justices denigrate African-Americans.”
Well, gays and lesbians – and certainly the transgendered – aren’t in the same place as African-Americans or women, and Justice Scalia’s dissenting opinion in Lawrence v. Texas, I reminded Boies, is certainly disrespectful to our community. Joined by Justices Rehnquist and Thomas, Scalia spoke of prejudice against our community as though it were perfectly acceptable, and ridiculed the majority for speaking movingly about our relationships: “[A]s the Court coos, “ he spat.
Boies then amended his statement. He doesn’t expect a majority of the Court to come out with a disrespectful opinion attacking gays and lesbians as a group or a “lifestyle.” Maybe that’s right, but a nasty concurrence or a terse, dismissive majority opinion could easily fuel legislative intransigence or give comfort to state courts that are looking for an easy way to get rid of these politically difficult cases.
Or Boies might be right in saying that “this case has already made a difference in advancing marriage equality.” In this regard, he emphasized the role of conservative (and Bush v. Gore foe) Ted Olson, whose credentials on that side can’t be questioned. We briefly discussed the Newsweek article in which Olson made the conservative case for marriage equality. “This is no longer a marginal issue,” he said. “It involves people’s basic instincts for fairness.”
My time was about up, but I had to get my law geek on, so I asked how much his case depended on the level of scrutiny the Court used. First, a brief primer for bewildered non-lawyers. Most of the time, cases involving discrimination against a particular group are analyzed under an extremely deferential standard, called “rational basis.” This means, for example, that a law that discriminates against bars by forcing them to close at 11 pm will be upheld if the legislature had any reasonable basis for the law.
As you might expect, cases decided under that standard typically result in victory for the government.
But if the discrimination is against a group that’s historically been discriminated against, then courts will apply a higher level of scrutiny, and the law typically will not survive. Racial discrimination is analyzed under the strict scrutiny test, while gender-based laws face the only-slightly-less demanding intermediate scrutiny test.
You might expect that a group with a history of violence against it, like the LGBT community, would be an easy case for strict scrutiny, but the Supreme Court has never so held. Recently, though, state courts in California, Iowa and Connecticut have applied either intermediate or strict scrutiny, and once the argument for doing so is made, there’s really no honest way of countering it.
So does the case depend on the Court’s willingness to adopt a high degree of skepticism about the marriage laws that fence us out? No, said Boies. “I think we win even under rational basis. First, marriage is a fundamental right.”
I stopped him. Many state courts have said that the fundamental right to marry is limited to opposite-sex marriages, which alone are deeply rooted in our history and traditions. In fact, if the fundamental right to marry were construed as Boies was suggesting, that too would trigger strict scrutiny (for different reasons I won’t get into). I didn’t see how the “fundamental right to marry” argument had much to do with the rational basis test.
“Because it relates to our other two basic points,” he said. “First, preventing gays and lesbians from marrying harms them and their children. Even the defendant’s experts admitted this. So you have damage. And second, permitting gay and lesbian marriage doesn’t in any way harm opposite-sex marriages.”
This all makes sense, of course. But will the Court be willing to go against the 45 states that don’t allow same-sex couples to marry? Don’t they usually prefer to wait until only a few states are lagging behind, as was the case when the Court finally threw aside the bans on interracial marriage?
“There are a number of historical examples of the Court getting ahead of most states,” he said. “When Roe v. Wade was decided, only a handful of states had liberalized abortion. And when Brown v. Board of Education was handed down, while there were only fourteen states that still had de jure school segregation, a majority had de facto segregation, and the Court struck that down.”
Boies seems to be banking on the Court’s willingness to give the LGBT community the same legal rights and dignity as African-Americans and women. Let’s hope he and Olson are right.
From 365gay.com
By John Culhane, Professor of Law, Widener University
05.03.2010
David Boies walked right into the Green Room where I’d just settled in to wait for him, shook my hand, and sat down. His escort, Equality Forum’s Communications Director Chip Alfred, reminded me that I had five minutes, and strode briskly away.
Boies was about to be honored (along with his new BFF Ted Olson, who was not in attendance) as an International Role Model at Equality Forum’s Annual International Equality Dinner. The two of them are litigating the challenge to Proposition 8 (and really to the ban on same-sex marriages more generally), and the case is widely expected to go all the way to the Supreme Court.
As the week-long event’s “official blogger,” I was one of several to get a few minutes of face time with him, and I wasn’t going to waste it.
I knew it would be no use trying to knock him off his pegs; Boies has argued before the Supreme Court many times, most notably in the infamous Bush v. Gore case, where he argued for the losing side. He’d always struck me as implacable in a professorial way: relaxed, bright, and comfortable with ambiguity and uncertainty. Nothing about his personal demeanor or mildly ruffled appearance – a bit surprising, given the glitzy, 200-dollar-a-plate event – suggested that my impressions had been off-base.
But I didn’t have time for an amiable chat.
Having listened to Lambda Legal’s Executive Director, Kevin Cathcart, express great skepticism over the likely outcome of the case (“We’ll win until we get to the Supreme Court, then we’ll lose.”), I wondered whether Boies and Olson had solicited input from any of the GLBT impact litigation groups before filing suit.
They had, but Boies acknowledged that the response was “mixed,” and that the legal advocacy groups were concerned that the suit could set back the careful and deliberate work they’d been doing on a state-by-state basis.
“Mixed” doesn’t describe the reaction I remember. Indeed, some of these groups were little short of outraged when the suit was filed, although they’re now committed to helping in whatever way they can. Boies thinks, though, that even if they lose the suit, “the state work can continue to go on independently.”
Wouldn’t legislative advocacy or even judicial decision-making at the state level be negatively affected by a Supreme Court loss, though? After all, public education can be bad as well as good. “A 9-0 decision could be bad, but I don’t expect that to happen,” Boies offered. “I don’t expect a gay-bashing opinion coming out of this Court.”
“This may not be a good analogy, but despite differences between members of the Court on affirmative action, they’re not going back to an era where the Supreme Court justices denigrate African-Americans.”
Well, gays and lesbians – and certainly the transgendered – aren’t in the same place as African-Americans or women, and Justice Scalia’s dissenting opinion in Lawrence v. Texas, I reminded Boies, is certainly disrespectful to our community. Joined by Justices Rehnquist and Thomas, Scalia spoke of prejudice against our community as though it were perfectly acceptable, and ridiculed the majority for speaking movingly about our relationships: “[A]s the Court coos, “ he spat.
Boies then amended his statement. He doesn’t expect a majority of the Court to come out with a disrespectful opinion attacking gays and lesbians as a group or a “lifestyle.” Maybe that’s right, but a nasty concurrence or a terse, dismissive majority opinion could easily fuel legislative intransigence or give comfort to state courts that are looking for an easy way to get rid of these politically difficult cases.
Or Boies might be right in saying that “this case has already made a difference in advancing marriage equality.” In this regard, he emphasized the role of conservative (and Bush v. Gore foe) Ted Olson, whose credentials on that side can’t be questioned. We briefly discussed the Newsweek article in which Olson made the conservative case for marriage equality. “This is no longer a marginal issue,” he said. “It involves people’s basic instincts for fairness.”
My time was about up, but I had to get my law geek on, so I asked how much his case depended on the level of scrutiny the Court used. First, a brief primer for bewildered non-lawyers. Most of the time, cases involving discrimination against a particular group are analyzed under an extremely deferential standard, called “rational basis.” This means, for example, that a law that discriminates against bars by forcing them to close at 11 pm will be upheld if the legislature had any reasonable basis for the law.
As you might expect, cases decided under that standard typically result in victory for the government.
But if the discrimination is against a group that’s historically been discriminated against, then courts will apply a higher level of scrutiny, and the law typically will not survive. Racial discrimination is analyzed under the strict scrutiny test, while gender-based laws face the only-slightly-less demanding intermediate scrutiny test.
You might expect that a group with a history of violence against it, like the LGBT community, would be an easy case for strict scrutiny, but the Supreme Court has never so held. Recently, though, state courts in California, Iowa and Connecticut have applied either intermediate or strict scrutiny, and once the argument for doing so is made, there’s really no honest way of countering it.
So does the case depend on the Court’s willingness to adopt a high degree of skepticism about the marriage laws that fence us out? No, said Boies. “I think we win even under rational basis. First, marriage is a fundamental right.”
I stopped him. Many state courts have said that the fundamental right to marry is limited to opposite-sex marriages, which alone are deeply rooted in our history and traditions. In fact, if the fundamental right to marry were construed as Boies was suggesting, that too would trigger strict scrutiny (for different reasons I won’t get into). I didn’t see how the “fundamental right to marry” argument had much to do with the rational basis test.
“Because it relates to our other two basic points,” he said. “First, preventing gays and lesbians from marrying harms them and their children. Even the defendant’s experts admitted this. So you have damage. And second, permitting gay and lesbian marriage doesn’t in any way harm opposite-sex marriages.”
This all makes sense, of course. But will the Court be willing to go against the 45 states that don’t allow same-sex couples to marry? Don’t they usually prefer to wait until only a few states are lagging behind, as was the case when the Court finally threw aside the bans on interracial marriage?
“There are a number of historical examples of the Court getting ahead of most states,” he said. “When Roe v. Wade was decided, only a handful of states had liberalized abortion. And when Brown v. Board of Education was handed down, while there were only fourteen states that still had de jure school segregation, a majority had de facto segregation, and the Court struck that down.”
Boies seems to be banking on the Court’s willingness to give the LGBT community the same legal rights and dignity as African-Americans and women. Let’s hope he and Olson are right.
*******
"A life lived in fear is a life half-lived..."
"A life lived in fear is a life half-lived..."
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