On Tuesday, the Kentucky Author Forum will host an interview of David Boies by journalist and author Jeffrey Toobin before a sold-out crowd at the Kentucky Center for the Arts.
In advance of that appearance, Boies spoke to Insider Louisville to discuss his long and celebrated legal career, his work to strike down gay marriage bans in California and Virginia, and his thoughts on the future of gay marriage as the U.S. Supreme Court prepares to decide those cases (including two from Kentucky) once and for all.
David Boies is arguably the most well-known trial attorney in the United States and has been for nearly two decades. A graduate of Yale Law School, he spent over 30 years as an associate and then partner of the prestigious New York-based law firm Cravath, Swain & Moore.
Beyond his corporate law work, he also pursued public interest cases, such as a challenge to Republican voter discrimination efforts in Mississippi, where so-called “ballot security programs” disenfranchised black voters during the 1980s. Boies said there was some pushback among his corporate law partners, but overall “the firm was quite supportive” of his civil rights cases. On balance, he said, his corporate clients understood the value of public interest work.
In 1997, Boies left Cravath to start a new firm with partners Jonathan Schiller and Donald Flexner. Boies laughed when admitting that being chairman of his own firm has given him considerably more freedom to pursue anti-discrimination and civil rights work while still maintaining major corporate contracts. He named several clients in particular that have fully supported his more recent work on marriage equality: American Express, Goldman Sachs, Barclay’s, HSBC, DuPont, and others. Those companies, Boies said, not only see equality as “right and fair, but they believe it’s good for their business.”
In 2000, Boies entered the larger public consciousness as the lawyer for Al Gore in the former vice president’s fierce Florida recount battle against George W. Bush. Boies would face off with future Solicitor General Ted Olson at the Supreme Court, where Boise ultimately lost a controversial 5-4 decision which ended the recount and secured the presidency for Bush.
The bitter legal struggle over the presidency didn’t turn Boies and Olson into enemies, however. Boies, a lifelong Democrat, and Olson, a prominent Republican, developed a deep respect for each other and became fast friends.
Fast forward to 2008. In California, a ballot initiative called Proposition 8 had just been passed, ending the state’s brief period of legalized same sex marriage. A fundraising and advocacy group called the American Foundation for Equal Rights (AFER), founded by Hollywood director Rob Reiner, wanted to file a federal lawsuit against Prop 8 so California could resume allowing gay couples to marry. AFER first sought the help of Olson, who, despite his Republican pedigree, immediately signed on. Olson then reached out to Boies for assistance and to create a bipartisan front against what they both considered an unconstitutional infringement of fundamental civil rights.
At the time, Boies and Olson were warned not to file a federal lawsuit against Prop 8. National groups such as GLAAD, Lambda Legal, and the ACLU were focused on a more gradual, state-by-state approach to legalizing same sex marriage and felt that a risky suit of that nature could backfire. After all, around that time gay couples could wed in only Massachusetts and Connecticut. Opinion polls still showed wide national opposition to the idea. Those who had worked in this realm for decades felt a full-on federal court attack at that moment in history was destined to come up short.
Nevertheless, Boies and Olson pressed forward, determined to strike down Prop 8 and maybe, just maybe, invalidate similar bans in every other state if the case reached the U.S. Supreme Court. A lengthy trial would follow, with the district judge ruling Prop 8 was in fact unconstitutional.
When asked whether he and Olson had anticipated or desired a trial from the beginning, Boies noted that they had originally moved for an injunction to prevent California from enforcing Prop 8. The trial court denied their motion. “It was actually the judge who said he didn’t want to decide an issue this important without a full record.” In retrospect, Boies said, “that was obviously the right choice.” It gave Boies and his team the opportunity to subject “bumper sticker” anti-equality arguments to tough cross examination. That trial is largely regarded today as a devastating defeat for anti-equality arguments.
The group of Prop 8 proponents then appealed to the Ninth Circuit Court of Appeals; eventually, the Ninth Circuit affirmed the trial court ruling in February 2012.
Undeterred by two consecutive defeats, the Prop 8 proponents pressed on to the U.S. Supreme Court, which granted “certiorari” and agreed to hear the case under the name Hollingsworth v. Perry. There, Boies and Olson scored a limited victory. The Supreme Court ruled in June 2013 that the proponents of Prop 8 lacked “standing” to defend the law in court, meaning the original trial court ruling was upheld, but a larger ruling striking down gay marriage bans across the country could not happen.
Boies said his legal team and clients were pleased with the outcome but would have been happier had the Supreme Court ruled on the underlying merits – the ultimate question of whether any state could prohibit same sex marriage. Nevertheless, a victory in a state as large and important as California was satisfactory.
While Boies and Olson were litigating the Prop 8 case, they granted full access to a documentary film crew, who produced a film called “The Case Against 8.” Boies and Olson also collaborated on a book about the case, called “Redeeming the Dream: the Case for Marriage Equality.”
The full story of America’s epic battle over same-sex marriage isn’t quite ready to be told, however.
Back in June 2013, the Supreme Court issued a ruling in the case of United States v. Windsor on the same day as Hollingsworth v. Perry. The Windsor decision struck down the federal Defense of Marriage Act, and ultimately proved the more effective weapon against marriage inequality in subsequent litigation. Almost immediately after the Windsor ruling, dozens of federal lawsuits challenging state gay marriage bans were filed.
One of those suits, Bostic v. Rainey, was filed in Virginia by a team of private lawyers. By September 2013, once again under the AFER umbrella of financial support, Boies and Olson joined the legal team of the plaintiff same-sex couples challenging that state’s ban. To Boies, Virginia was symbolic due to Loving v. Virginia, the case which struck down interracial marriage bans in 1967. But the state also had a very broad ban not just on gay marriage but also on civil unions and private contracts similar to marriages (Kentucky’s gay marriage ban is nearly identical).
In February 2014, the federal judge struck down that ban. The court ruled that Virginia had violated the Fourteenth Amendment by prohibiting same-sex marriage. Dozens of other district courts around the country reached the same conclusion, including in Kentucky.
An appeal to the Fourth Circuit Court of Appeals followed, but the case became more complicated because another group of plaintiffs represented by Lambda Legal and the ACLU were allowed to intervene. Boies and Olson opposed the intervention (allowed under court rules when a third party has a very profound interest in an ongoing case), once again creating a rift between the dedicated national groups who had long been working to defeat gay marriage bans and private attorneys some viewed as more concerned with public image than national equality.
Despite the conflict, the cases were consolidated as Bostic v. Schaefer and the Fourth Circuit heard oral arguments. On July 28, 2014, the Fourth Circuit affirmed the lower court’s decision. Virginia’s ban on gay marriage had suffered another defeat.
Boies and Olson were unsure whether they would be headed back to the Supreme Court, along with other winning gay couples from the Seventh and Tenth Circuits. Gay marriage bans in Indiana, Wisconsin, Utah, and Oklahoma had also been struck down by federal district courts, and those courts had also been affirmed. Though the circuit courts were unified in striking down state marriage bans, the Supreme Court had not previously gone so far.
But the Supreme Court rejected the requests for review and effectively upheld the circuit court rulings on Oct. 6, 2014. This came as a surprise to national legal observers, but Boies said he was satisfied. “That meant that for the first time, you had a majority of the American people living in a state with marriage equality.” He also said it’s hard to imagine that the court would have refused to hear those cases, “if it believed that it was appropriate for states to have laws restricting marriage equality.” To Boies, the court sent a signal that “this issue is over with.”
The Supreme Court is traditionally disinclined to grant certiorari when the circuit courts are unified on an issue. And by the beginning of last October, all the circuits which had issued rulings to that point had agreed: States could not constitutionally prohibit gay marriage. It wasn’t until a month later that a “circuit split” would emerge. On Nov. 6, the Sixth Circuit upheld gay marriage bans in Ohio, Tennessee, Michigan, and Kentucky. Those cases are now pending before the Supreme Court under the consolidated name Obergefell v. Hodges.
Boies says the cases now before the Court have an advantage over past ones such as Hollingsworth v. Perry. More than a decade has passed since Massachusetts first legalized gay marriage, and now a majority of people in the United States live in states where same-sex couples are marrying. “The sky hasn’t fallen,” said Boies, and it’s becoming less of a partisan issue. Marriage equality, he said, “is good for family values, it’s good for conservative values, it’s good for liberal values, and I think the background of all that is something that will help give the Supreme Court comfort that this is the right thing to do.”
Disclosure: I am co-counsel for the same-sex couples in the Kentucky cases of Bourke v. Beshear and Love v. Beshear currently pending before the U.S. Supreme Court, along with attorneys from the ACLU who were involved in the Virginia case of Bostic v. Schaefer.