Boies-Olson Legal Pair Proud Allies on Same-Sex Marriage

Lawyers David Boies and Theodore Olson, legal frenemies on opposite sides of the 2000 U.S. Supreme Court fight over presidential election vote counting, remain allies on the fight for same-sex marriage.

The duo talked about how and why they came to collaborate on a lawsuit to overturn California’s voter-enacted gay marriage ban today as part of The Year Ahead: 2014, a two-day conference for an audience of business people in Chicago sponsored by Bloomberg LP.

“Ted called me in early 2009,” Boies began the discussion.

“He thought I was the devil,” Olson said.

Olson told the moderator, Canadian Supreme Court Justice Rosalie Abella, that as someone who grew up in California, he saw the state’s ban as “a tragedy.”

He said that because he was identified as a conservative, reaching out to his adversary in the case of Bush v. Gore would make it easier for people to accept a ruling legalizing same-sex marriage.

It’s important that “the American people accept that decision and say, ‘Yes, that’s the right decision,’” Olsen said.

The bar to same-sex marriage “was causing enormous pain and damage to our fellow citizens” without justification, Boies said.

The 30-minute dialog with Abella, staged in the former Chicago Stock Exchange trading room now on permanent exhibit at the Art Institute of Chicago, also touched on political free speech and affirmative action.

Olsen’s Career

Olson, 73, a Washington-based partner with Gibson Dunn & Crutcher LLP, served the Bush administration as U.S. solicitor general, the federal government’s top litigator and Supreme Court advocate. He is a law graduate of the University of California at Berkeley, once officially known as Boalt Hall.

Boies, 72, is chairman of Boies Schiller & Flexner LLP, an Armonk, New York-based law firm, and is a graduate of Yale Law School.

Two years ago, Boies represented the National Football League in labor litigation with suing players Tom Brady, Drew Brees and Payton Manning. Arguing for the players before a St. Louis-based federal appeals court was Olson.

While the NFL prevailed in its fight to maintain a lockout, Boies watched from the sidelines as the league’s winning argument was made by Paul D. Clement, who succeeded Olson as solicitor general in 2005 before turning to private practice.

Proposition 8

The attorneys collaborated on a 2009 federal lawsuit seeking to overturn the California gay marriage ban known as Proposition 8. The Supreme Court in June declined to disturb a federal appeals court decision to affirm a trial judge’s finding the measure was unconstitutional.

In 2000, Abella said, “half the country loved each of you,” as Boies represented former Vice President Al Gore and Olson the eventual President George W. Bush in the high court battle over counting election ballots in Florida.

This year “most of the country fell in love with both of you, but all of the country is confused by the fact that the two of you, who had been the titans battling in Bush v. Gore, became the titans battling together for same-sex marriage.”

Olson said they were called “strange bedfellows” and “the odd couple” as they sought to explain same-sex marriage to Americans so that, when the decision they sought came, people would say, “Yes, this is happiness.”

Public ‘Happy’

While the country has far go in achieving equality in racial, sexual and other types of equality, when marriage barriers fell, many Americans were happy for the people directly affected “but also happy for the country,” Boies added.

Abella called court recognition of a right to gay marriage “a huge civics lesson for people,” then asked why other divisive issues such as affirmative action resisted resolution.

“When you make decision on the basis of race, when you decide who will be admitted on the basis of their race, then there is a winner and then there is a loser,” as opposed to gay marriage, Olson said.

“I think everybody would agree that if you have a true colorblind society and everybody is equal,” said Boies, “there’d be no role, none, zero, for affirmative action.”

The duo disagreed on the issue of political speech as expressed in the form of campaign contributions.

Olson told Abella the government should stay out of business of opinions expressed on core political issues, such as electing a president, saying when it does otherwise, “it’s picking winners and losers.”

Boies countered that when the Supreme Court in 2010 decided to allow unlimited corporate and union spending on elections, it opened “a flood gate,” and that the consequence of doing so is not yet fully known.

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