Proposition 8 litigators David Boies (LL.M. ’67) and Theodore Olson joined MSNBC host Rachel Maddow at NYU School of Law on Friday for an in-depth interview about the future of marriage equality, an issue that may be taken up by the Supreme Court this year. The conversation ranged widely over the course of an hour, touching on points such as how to win over Justice Scalia on the issue, the public’s support for gay marriage, and the worst-case scenario for this legal challenge.

The high-profile team of Boies, chairman of Boies, Schiller & Flexner and chief counsel of the Senate Judiciary Committee in the late 1970s, and Olson, partner at Gibson, Dunn & Crutcher and U.S. solicitor general during the presidency of George W. Bush, is especially remarkable because the two attorneys had argued on opposite sides of Bush v. Gore in 2000. Between them, the men have argued many of the landmark cases of our time, including Citizens United v. Federal Election Commission and United States v. Microsoft. Both were named on Time magazine’s list of the 100 most influential people in the world in 2010. They also have strong ties to NYU Law, where Boies is a trustee and has endowed the David Boies Professor of Law and Olson is a board director of the Dwight D. Opperman Institute of Judicial Administration.

With no fewer than 60 Supreme Court cases under their belts, they spoke authoritatively and confidently about their chances, assuming the case is granted certification. “The Supreme Court has made erroneous decisions in its history,” said Olson, pointing to rulings such as Plessy v. Ferguson, the Dred Scott decision, and the upholding of the government’s right to intern Japanese-Americans. But in the end, he said, the Supreme Court will struggle with these issues and ultimately get it right.

“We believe the Supreme Court will get it right. David and I are writing no justice of this court off,” Olson continued. “We have a little joke—David will ensure that we get the ones that votes his way on Bush vs. Gore, and I’ll get the side of the court that I got, so it will be unanimous.”

As for how to convince Justice Scalia and other conservatives to support the issue of marriage equality, Boies noted that Justice Scalia has said that his job was not to impose his own personal views, but to enforce the constitutional guarantees that we have. “I think it’s easy to recognize the constitutional guarantee of the right to marry.  What we now have to do is recognize that there’s no basis to discriminate based on sexual orientation,” said Boies. “That is an argument that isn’t Republican or Democrat, conservative or liberal. It is an argument that appeals to everybody who shares the basic principle that all American do of equality under the law, justice for everybody.”

Olson and Boies said they would aim for a unanimous decision, but they acknowledge that in a realistic worst-case scenario, the Supreme Court may deny same-sex marriage as a constitutional right and rule that states must decide the issue. In conclusion, said Boies, we all have a lot of work to do to undo the "pain and evil" of this discrimination against gays and lesbians.

“I love talking to old, straight white guys about this issue,” quipped Maddow.

The keynote panel kicked off “Making Constitutional Change: the Past, Present and Future Role of Perry v. Brown,” a symposium organized by the N.Y.U Review of Law & Social Change in collaboration with Professor Kenji Yoshino, NYU-OUTLaw, and Epic Theater Ensemble. The two plaintiffs in the case, Kris Perry and Sandy Stier, were present throughout the day-long event and the prior evening, when members of the Epic Theater Ensemble performed a stage reading of 8, a play by Oscar-winning screenwriter Dustin Lance Black based on the Prop 8 trial transcripts.

Perry, whose surname is now shorthand for one of the most famous cases in modern legal history, spoke of her experience after the play reading. “Being somebody that’s different from other people and then trying to go into a courtroom to say, ‘I need to be protected,’ was something I thought I’d never do. So the good thing about the case has been having straight lawyers say, ‘This is not okay. You need to fight back and we’re going to help you, and you don’t need to be so good at coping anymore.’ For Sandy and I to be given that permission by two very sensitive, caring attorneys really changed our lives in a way that we would never have predicted.”

Posted October 8, 2012