David BoiesOn August 4, David Boies (LL.M. '67) scored a major victory when the U.S. District Court for the Northern District of California released its decision in Perry v. Schwarzenegger. The federal lawsuit, brought by Boies and co-litigator Theodore Olson (who is a member of the Dwight D. Opperman Institute of Judicial Administration's board of directors), challenged the constitutionality of Proposition 8, an amendment to the California State Constitution banning same-sex marriage.

In his 136-page opinion, Chief Judge Vaughn Walker wrote that Proposition 8 violated both the due process and equal protection clauses of the 14th Amendment, concluding that the ban “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

The case will almost certainly go on to the U.S. Court of Appeals for the Ninth Circuit. At an appearance in San Francisco following the ruling, Boies deemed it a “dead certainty” that Perry would end up on the docket of the U.S. Supreme Court if the Ninth Circuit upholds Walker’s decision.

“We’ve made a record that’s never been made before in court,” Boies said. “We have findings of fact.... [Higher courts] don’t have to give any deference at all to what the so-called lower court has thought about the law. But the findings of fact have to stand unless they can be demonstrated to be completely erroneous.”

Boies added, “As you move toward greater equality, people have to abandon decisions they made and positions they took before. I'm very conscious of the fact that we're going to be arguing this to judges that are of my generation.... You had laws prohibiting gays and lesbians from various employments—not merely allowing employers to discriminate, but forcing employers to discriminate. That was the culture in which those of us of a certain age grew up. And you have to ask judges to put those cultural influences aside. That’s hard to do, but judges are taught to do that.”

Photo of Kenji YoshinoWriting in the New York Times’ online “Room for Debate” in the aftermath of the ruling, Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, said, “Whether Perry remains good law will depend in part on the ability of the Ninth Circuit and ultimately the Supreme Court to make the same distinction [that Walker’s opinion did between religious and secular grounds]. And whether the nation will ultimately embrace same-sex marriage will depend on whether the religious objections properly excluded from the courts can be overcome on their own terms.”

Posted on August 6, 2010