David Boies (LL.M. '67) joins forces with old rival Theodore Olson to fight gay marriage ban

More than eight years after they battled over the outcome of the 2000 presidential election, David Boies (LL.M. '67) is teaming up with former rival Theodore Olson as co-counsel in a federal lawsuit to overturn Proposition 8, California's ban on same-sex marriage that was just affirmed by the California Supreme Court.

Boies and Olson were hired by the American Foundation for Equal Rights, a newly formed advocacy nonprofit group. When announcing the lawsuit on May 27, Boies told the New York Times, "I must say, being up here on a platform with Ted Olson and all these lights makes me want to urge everybody to count every vote."

"Ted and I, as everybody knows, have been on different sides in court on a couple of issues," Boies said to the Times. Boies represented Al Gore in Bush v. Gore, the contested 2000 vote count in Florida in which Olson prevailed for President George W. Bush. "But this is not something that is a partisan issue. This is something that is a civil rights issue."

Boies, the founder and chairman of Boies, Schiller & Flexner, and Olson, a partner at Gibson, Dunn & Crutcher, filed a complaint in federal district court in San Francisco on behalf of two gay couples arguing that Proposition 8 interferes with the federal constitutional guarantees of equal protection and due process. Boies and Olson, who are also seeking an injunction blocking the marriage ban until the matter is resolved, acknowledged that the case may ultimately take them to the Supreme Court.

Photo of Jennifer Pizer '88But not everyone in the gay rights movement is happy about the new lawsuit or its timing, particularly with a conservative majority on the Court. "We think it's risky and premature," Jennifer Pizer '88, marriage project director for Lambda Legal in Los Angeles, told the Times, noting that a Supreme Court loss could take decades to undo.

However, Olson, a member of the Dwight D. Opperman Institute of Judicial Administration's Board of Directors, is confident that the timing of the case is just right because of the presence of Justice Anthony Kennedy, who voted in favor of gay rights groups in two cases, one in which he wrote the majority opinion. "We studied this very, very carefully," Olson said to the Times, noting that it was difficult to tell clients, 'Why don't you go back and wait another five years?'"

Watch David Boies discuss the lawsuit on The Charlie Rose Show

Posted on May 28, 2009