David Boies (LL.M. '67) and Theodore Olson prevail again in federal court in same-sex marriage case

David BoiesOn February 7, the U.S. Court of Appeals for the Ninth Circuit released its much-anticipated ruling in Perry v. Brown, the suit challenging the constitutionality of Proposition 8, the 2008 California ballot initiative that amended the state constitution to prohibit same-sex marriage. NYU School of Law Trustee David Boies (LL.M. ’67) and Theodore Olson, a member of the Dwight D. Opperman Institute of Judicial Administration’s board of directors, are the two plaintiffs’ attorneys in the case. Once on opposing sides (arguing against each other in Bush v. Gore), the two joined forces in Perry to press for marriage equality.

The Ninth Circuit ruling upheld the August 2010 decision of the U.S. District Court for the Northern District of California, which had deemed Proposition 8 unconstitutional. In an appearance on PBS NewsHour, Boies lauded the new ruling: “This was a great day for America, a great day for California in particular, but a great day for America and everybody who believes in equal rights. What the Ninth Circuit said was that we're not going to tolerate any longer governmental discrimination against our gay and lesbian citizens. And they said it in very emphatic terms. And although the decision is technically limited to California, the principles that it articulates mean that eventually we're going to have marriage equality throughout the United States. And people need to get into the 20th century, if not the 21st century, and recognize that that kind of discrimination is over with.”

Olson said in a statement, “Under our Constitution, gays and lesbians cannot be denied the most fundamental freedom in American society—the freedom to marry. Today’s momentous decision reminds us that it is time that we, as Americans, treat all of our fellow citizens with fairness and decency.”

Kenji YoshinoIn a radio interview shortly after the ruling, Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, looked ahead to the next step. “All eyes are not only on the Supreme Court, but perhaps more particularly on Justice Kennedy, who is the swing vote on that court, with respect to these issues in particular and constitutional issues more generally.... For all of these claims about how the Supreme Court is a countermajoritarian body, the Supreme Court doesn’t very often get that far out ahead of public opinion. We now see in poll after poll that a majority of Americans are for marriage equality.... This is definitely going to be an unspoken premise which will form the backdrop against which future litigation on this issue will take place.”

Posted on February 8, 2012