The bipartisan legal team that convinced the U.S. Supreme Court to strike down Prop 8 explains how and why they did it. Excerpted from “The Case for Marriage Equality,” June 26, 2014
DAVID BOIES.Chairman, Boies, Schiller & Flexner LLP; Co-author, Redeeming the Dream: The Case for Marriage Equality
THEODORE B. OLSON, Partner, Gibson, Dunn & Crutcher;Co-author, Redeeming the Dream: The Case for Marriage Equality
In conversation with GAVIN NEWSOM, Lt. Governor, California – Moderator
Introduction by GEORGE TAKEI, Actor; Activist

GEORGE TAKEI: California, Hawaii, Connecticut, the District of Columbia, Illinois, Iowa, Pennsylvania, New Jersey: these and 12 other states now have marriage equality. Sixteen countries have laws that allow same-sex marriage or domestic partnerships. In this country, a number of states are now awaiting appellate court judgments yet to come. There is indeed change afoot in the political and social climate of this country.

Tonight, I’m so proud to introduce the two attorneys who joined forces to win a Supreme Court decision that has indeed altered the American landscape forever. They have also written the new book, Redeeming the Dream, about that landmark decision and the future of marriage equality in the United States. David Boies and Ted Olson have been called America’s legal odd couple. Their pairing is certainly the most unlikely in civil rights history. David Boies, a Democrat, Ted Olson, a Republican, vigorously faced each other in the Bush v. Gore case in 2000, and later came together because they decided that human rights were more important than partisanship. Both gentlemen have made Time magazine’s list of the world’s most influential people. Both are highly regarded litigators.

Tonight they will be in conversation with another individual who doesn’t sample the political climate before taking a principled stand. Gavin Newsom is California’s 49th lieutenant governor and the former twiceelected mayor of San Francisco. In 2004, after only 36 days as mayor, Mr. Newsom gained worldwide attention by granting marriage licenses to same-sex couples. Those marriages were later annulled by the California Supreme Court, paving the way for Proposition 8’s adoption by voters in 2008, and its defeat before the highest court in the land exactly one year ago today. Welcome to 2014! Now please welcome David Boies, Ted Olson and Gavin Newsom.

GAVIN NEWSOM: Everyone talks quite lovingly about this relationship, this notion of an odd couple. But, seriously, after Bush v. Gore, there was no way you guys were just hanging out at the golf course a year or two later. How did it come about that you started to repair [the relationship], if not between the two of you, then between your friends and allies and supporters that, I imagine, had some deep-seated animus and had developed a lot of resentment around that case on both sides? How did you begin to repair
that relationship and create the conditions where you were in a position, Ted, to make that phone call to David to include him in that process?

THEODORE OLSON: We were opponents, but not enemies. I watched David work in his representation of Vice President Al Gore and the team that he led. I have great admiration for what they did, how they did it and who they were representing. We engaged with one another because we often had to make speeches and appear on television and explain our clients’ points of view. These were contentious times. Of course it was a very, very intense five-week period, and it extended beyond that because it tore the country up a little bit. I figure it was among the three most contentious presidential elections in history.

After the election was over, I was nominated by President Bush to be solicitor generalof the United States. I wasn’t the most popular person among the Democrats in the United States Senate. The process of the confirmation, which is never pretty anyway, was going to be kind of contentious – a mild word. David volunteered to talk to his former boss, Senator Kennedy, and speak up for me. When I was finally confirmed by an overwhelming 51-47 vote [laughter], David came to my swearing-in at the Justice Department.

We got together on a few occasions the fall of that year. Our wives became friends. We’ve done things together. We both enjoy the law, we really believe in the law, we believe in the process of the law. We agree that sometimes we’ll disagree about decisions, but we have mutual respect. The law is a blessing for us both. We enjoy fine wine, especially California wine. We just became closer and closer together over the years. We enjoyed working with one another and we always talked about [how] maybe there could be a case where we could be on the same side. We were on opposite sides of other cases subsequent to this, but we kept looking for an opportunity. We finally had this opportunity
on the Prop 8 case.

DAVID BOIES: We’d known each other alittle bit before Bush v. Gore. It was during Bush v. Gore that we really became friends. You admire somebody who is on the other side who is a good lawyer and has personal integrity. I respected the way Ted handled himself; I disagreed with him then and I disagree with him now, on that particular case. I respected his role in the process. He was a fine advocate for Governor Bush, and he was a person who always handled himself with professional integrity. When the time came, afterward, I had no hesitancy at all when telling my Democratic friends that this was a person who would make a fine solicitor general. We became closer friends. We still haven’t gotten on the golf course together, but we do take bike trips with our wives. It’s a genuine close friendship. There are many issues which we disagree on. There are many issues that we have common views of. What we’ve found is, we can work together on those areas [where] we have common ground. Each of us thinks that the country would be a better and more productive place if more people could focus on what we have in common and not where we disagree.

NEWSOM: David, your immediate response [to Ted’s call to join the case] was yes?

BOIES: My immediate response was yes. I had concluded before that call that this was really the defining civil rights issue of this particular quarter of a century. I can’t be here without thanking you [Newsom]. As I write in the book, my attention to this issue really rose in 2004. Like a lot of straight people, I was vaguely in favor of gay rights. I never really thought about marriage. When you opened up the court’s office for marriage licenses, I remember the images on television of people coming here from, not only California, but all over the country, and, to some extent, all over the world, and standing in line. They were so happy to have the opportunity to get married. I remember talking to my wife, Mary, at the time, and saying, “What in the world are we doing depriving people of the ability to get married when it can make them so happy, it can be so meaningful to them and it doesn’t hurt anybody?” That was a moment for me that really changed my perspective. So when Ted called me, I immediately said yes.

NEWSOM: My father, a progressive judge, an activist judge before they coined the term, was not supportive when we did what we did in 2004. In fact, it took him years, even after Prop 8. He kept saying, “Can’t you call it something else?” Were you really there that early?

OLSON: I was. In fact, someone reminded me when there was some commentary, “What in the world is he doing?” Conservatives were saying, “You are fighting for a new constitutional right.” I didn’t feel it was a new constitutional right.

David Frum, the journalist, said, “Ted, I remember a dinner we had 10 years ago with your then-wife” – my late wife – “arguing about this, and it was three to-one against you. You were in favor of allowing people to get married and having that right.” My thinking is very much like David’s, although we’ve never talked about it collectively. Loving couples coming together, wanting to form enduring relationships and become part of a community and raise families and pay taxes and become a part of everyone else and make units of themselves, take on responsibilities, because marriage involves a lot of responsibilities – what could be more conservative than that? That’s a conservative value.

NEWSOM: You had a strategy that you attached to this early on. There was a lot of controversy surrounding that strategy. There were some that were asserting that you were interested in moving the case through motions and not necessarily through trial early on. Eventually it went to trial with Judge Walker. What were the machinations of those discussions? Was it overplayed? Was it always a trial that you were after? Were you disappointed, as a consequence, when it was not allowed to be televised?

OLSON: When we filed this case we thought, in most of these civil rights cases that have been brought, people file the case and then there are motions. The judge looks at the arguments on either side and can decide the case, and then you’re on a faster track; you’re on to the U.S. Court of Appeals and then maybe on to the Supreme Court. Initially both sides, even our opponents, thought that this was a case that could be handled in the form of motions.

We were assigned to Chief Judge Walker in this case. It turned out to be very, veryfortunate because he has been a trial lawyer – he’s resigned now, but he spent 20-something years in a trial court. He said to us when we came before him early in the case, “I’m a trial court. How we do this is more important than the decision, because the decision is going to be made at a higher level someday.” He said, “I want a trial. I want to hear evidence on marriage, on psychology, on raising children, on the politics of this, on the characteristics, on the impact of discrimination. I want a trial. I’ll give you a trial quickly.” This was the summer – we filed it in July or August. He said, “I’ll give you a trial in January, but I want a trial.”

That wasn’t exactly what we had in mind in the beginning, but we embraced that because that would give us an opportunity to put on trial discrimination and the impact of discrimination and the harm that’s done. We didn’t foresee everything, but we did think this was a great opportunity. We thought we had the resources to find the best experts in the world. Our opponents complained bitterly about the schedule. “We don’t have time to do this; we don’t have time to get experts to do expert reports, to take depositions and still get to trial.” We kept saying we were going to stay on that schedule and do whatever it took to get there; we were very happy about that. Once the judge had decided, that’s what we wanted to do; weembraced it. The judge decided that this was an important constitutional question involving tens of thousands, ultimately millions, of people in the United States, and that the people who couldn’t get into the courtroom should have been in the courtroom, because there should have been a streaming of the trial outside to the public. We thought that was fantastic.

Our opponents hated the idea. That tells you a lot. They were complaining bitterly that there was going to be a trial and the public was going to be coming into the trial. What could be more American than a trial: A real back-and-forth, evidence goes on, people will testify, we cross-examine them and things go on. The American people should see this. If you don’t want the American people to see what’s going on in that courtroom, what’s the matter with your ideas? Is there something wrong with your side of this case if you don’t want people to see it? Ultimately the Supreme Court stopped the idea of televising the court outside thecourtroom on the first day of the trial, but the cameras stayed in the courtroom. That tape still exists.

NEWSOM: David, I imagine this had tochange you pretty profoundly: the experiences, people coming up to you. So much of your work, and I don’t mean to diminish your other work, but it’s more academic and theoretical than you’re arguing here. When you got deeper into this I imagine there were layers of this that you never could have seen coming that must have moved you profoundly.

BOIES: There really were. When we started, I think both Ted and I were committed to this as a matter of constitutional principle, as a matter of basic fairness, as a matter of constitutional law. As we got into the case and as we got to know our plaintiffs – as I’ve said many times before, they started out as our clients, became our friends and ended up our family. We shared their pain; we shared the damage that the discrimination did. We moved from an intellectual case, about which we felt passionately even in the beginning, to a highly emotional case where we felt that our future and the future of our families was tied up in what happened in this case. That’s only increased as time has gone on and as we see and we talk to everyday people whose lives have been changed – not just by what we’ve done, but by what all of the people who have devoted so much time and effort to achieving equality over the last several decades, have worked to do. It has been, I think for Ted and myself, the most satisfying case that we’ve ever been involved in.

NEWSOM: And Ted, for you particularly, not without consequences. I mean, Rush Limbaugh –

OLSON: Yeah, he doesn’t like me anymore.

NEWSOM: Right away he said, “You were one of us.” A notion of betrayal; he amplified as he often does, verbosely, but others, I imagine, quietly. Folks that you were very close to, people you admire; that animus probably still remains. Have you been able to repair those relationships? Have you been able to convince those people of the merits of your argument? In a broader sense, how has it impacted you, not just personally, which I’d love to hear, but also professionally?

OLSON: I don’t worry about things like that. I really don’t. There have been some people that didn’t understand, that did disagree. I looked upon that, in large part, as an opportunity to explain why I felt – and I wrote the article for Newsweek about the conservative case for gay marriage. I figured that this was an opportunity. I have deep convictions about the rightness of this. It’s only reinforced every time I look at [plaintiffs] Kris and Sandy or Jeff and Paul. I knew that this was right. I knew that if given the opportunity to do something about it and I walked away from it because other people didn’t think that it was the right thing to do
– I would become unpopular – I would not
really be able to live with myself.

This is something that is exceedingly important – and yes, you get some emails and this or that, but we’re overwhelmed by the good feeling that comes out of people walking past me or sitting on an airplane. Last night here at the LGBT Community Center, just up the road on Market Street, we were with 125 or so people who talked with us about their experiences. It was extraordinarily gratifying. Not a day goes by without us hearing from somebody that we have touched in a small way. That completely eclipses any professional or personal [cost].

NEWSOM: Did you choose the plaintiffs, or did the plaintiffs choose you?

BOIES: It was a combination. One of the things that the plaintiffs had to be satisfied with was the case we were going to bring and how we were going to represent them. One of the things we also had to be sure of was that we were able to identify plaintiffs that were going to have the strength of character and the staying power and the courage to go through what we knew was going to be an arduous process. We knew that this was a process that was going to take years, not months. We knew that we needed to have people who had a commitment to their relationship so that that relationship could withstand that time and that pressure. We needed to have people whose families would accept and support them with the difficulties that they would have to go through. We needed to have people who had the inner character and the strength to be able to endure what we knew was going to be a lot of harassment, a lot of attacks, a lot of vile kinds of things that they were subjected to. You would not want to play in a family audience some of the messages that were left on their answering machines. We needed to have people who would stick with it through that.

We found, in our four plaintiffs, Kris and Sandy and Jeff and Paul, four extraordinary human beings who were able, with intelligence and humor, to describe our case and describe what they felt, describe why this was an important issue, describe what they were being deprived of by the discrimination and how that had hurt them and damaged them, but also to describe the kind of higher arc that they and others could have if this discrimination were eliminated.

Ted and I have often said that the best argument that we could ever make would be just to play the testimony of Kris and Sandy and Jeff and Paul. We called the four of them as our first witnesses. Those of you who are lawyers in the audience know that you don’t generally do that. That’s a dangerous thing to do. If they don’t come across perfectly, you may lose a momentum that you never recover in the trial. Some people would say it was a risky strategy to put them on first. We felt it was important to put a human face on this discrimination and have a judge listen to real people describe in real terms what thiscase was about. There was not a dry eye in the courtroom, and I include the people on the other side, the lawyers on the other side, listening to that testimony. You’ll get a sense of it listening to the HBO documentary [The Case Against 8]. It doesn’t come across with as much dramatic
 mpact as the trial did, but it comes across with a lot of dramatic impact. I don’t believe that you can watch that documentary, and I don’t believe that you could listen to the plaintiffs in our trial, no matter what your going-in position was, and not end up rooting for them. That was, I think, our most powerful evidence.

NEWSOM: We’re blessed to have Kris [Perry] and Sandy [Stier] here. This is a pretty impressive team you’ve got behind you. It’s as good as it gets. What was it like a year ago today when that decision came down? What did it mean to you personally, your family?

KRIS PERRY: Happy anniversary, Ted and David, number one. [On that] day a year ago, June 26th, 2013, I actually thought about you, Lieutenant Governor Newsom, and what Sandy and I did because of you 10 years earlier. We ran to San Francisco City Hall. We were married and couldn’t have been more overjoyed. Then, a few months later, that was taken away. We were so aggrieved by that, we didn’t take advantage of the six-month window in 2008. We didn’t go get married again. It was too hard. We had four boys. They were put through it once; we didn’t do it again.

So when Ted and David went into this with a new strategy where they were going to seek federal remedies to this problem, we thought, well maybe that was the permanent solution that would let Sandy and me get married. The rest is history; we know what happened. On that day I was really thinking of the 10-year span that you started in San Francisco. We won a trial in San Francisco. We came back to San Francisco and two days later we were married in City Hall by [California Attorney General] Kamala Harris with so many people celebrating along with us.

We could almost predict that that moment was coming and that everyone would be as celebratory and overjoyed with what had been accomplished by, not just the three of you, but this entire city, this state, this court system, so many people. We couldn’t be more proud to be a part of everything that everybody did, including you. I know that Sandy and I couldn’t ask for a better place to be tonight on our first SCOTUS anniversary. It doesn’t sound so great, but now we have that, too.

NEWSOM: What about the religious arguments? An extension of that: What is the best argument, from your perspective, against same-sex marriage?

BOIES: The courts have been consistent [in saying] that tradition is not a justification for discrimination. If tradition were a justification for discrimination, women still wouldn’t vote – they still wouldn’t have any equal rights in marriage; African Americans wouldn’t go to school with whites, you wouldn’t have interracial marriage. Tradition cannot be a justification for continued discrimination.

With respect to the best argument against, there are people who believe, as a sincere article of faith, dogma of their religion, that marriage and sex ought to be limited to people of the opposite sex. There were people who believed, as a matter of religious dogma, that marriage and sex should be limited to people of the same race. People can have a variety of religious views and they can hold those very sincerely.

The First Amendment of the Constitution guarantees the freedom of everyone to have the religious beliefs that they do. But the First Amendment also, in its separation of church and state, guarantees that no religion and no majoritarian religious belief can infringe on the rights of minorities. Can there be a religious argument against marriage equality? Yes there can. Can there be a religious argument for the government limiting marriage to people of the opposite sex? No. There simply is not a policy, there’s not a secular policy, there’s not a constitutional policy, there’s not a constitutional precedent that permits you to take religious views, that you may hold sincerely, that the majority of people may hold sincerely, and impose them on somebody else.