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August 6, 2010 10:30 AM

Litigators of the Week: David Boies of Boies, Schiller & Flexner and Theodore Olson of Gibson, Dunn & Crutcher

Posted by Ed Shanahan

By Andrew Longstreth, The Am Law Litigation Daily

 

OlsonBoies web Shortly after Northern District of California Chief Judge Vaughn Walker issued his historic 136-page ruling that California's ban on same-sex marriage is unconstitutional, both supporters and opponents of the voter-enacted California constitutional amendment known as Proposition 8 turned their attention toward future battlegrounds: the U.S. Court of Appeals for the Ninth Circuit and, potentially, the U.S. Supreme Court.

But it's important to remember that Chief Judge Walker's decision--and any future appellate consideration of his ruling--is firmly rooted in the trial record established by David Boies of Boies, Schiller & Flexner and Theodore Olson of Gibson, Dunn & Crutcher, lead counsel for the plaintiffs challenging Proposition 8. At the two-week Prop 8 bench trial in January, Boies (above right), Olson, and the other lawyers on their trial team presented eight fact witnesses (including the two same-sex couples who filed the suit) and nine experts, including an historian who testified about the institution of marriage; an economist who discussed the cost of barring same-sex marriages; a psychologist who said same-sex marriages would have no effect on opposite-sex marriage; and a political scientist who testified that gays and lesbians have little political power in the U.S. Supporters of the ban could only muster two expert witnesses to testify in favor of Prop 8, and Chief Judge Walker found neither of them made credible arguments.

That overwhelming trial record led Chief Judge Walker to conclude that Proposition 8 violates the Due Process and Equal Protection clauses of the Constitution. "Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite-sex couples are superior to same-sex couples," he wrote. "Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

From the day they filed the challenge to Prop 8 (and we first named them Litigators of the Week), Boies and Olson knew they'd have to establish a trial record that would not only persuade a federal district court judge to overturn the ban on same-sex marriage, but would also withstand appellate scrutiny. On Thursday we caught up with Olson to discuss how higher courts would view the record his team made before Judge Walker.

"That record [that Walker] systematically examined is going to be exceedingly important in appellate review," Olson told us. "He went through all of the proposed justifications for Proposition 8 [and] looked for a rational basis or a compelling governmental interest...He found no rational basis by systematically looking at all of the proffered explanations and finding that they did not make sense."

He added: "I would not want to be our opponents trying to buck that record."

Olson, who is best known as a Supreme Court litigator, also noted that appellate courts pay deference to trial courts' findings of fact. "Appellate courts don't have to automatically accept every finding of fact, but when it's so strongly supported, the standard of deference is quite high," he said. "Judge Walker covered every conceivable factual issue. It's a remarkable piece of work. I don't know of a single aspect of the issues involving this case that he didn’t carefully examine."

Olson told us that after giving a press conference in San Francisco on Judge Walker's ruling, he and Boies flew to Los Angles to attend a gay rights rally in West Hollywood. Later that evening, the two lawyers had dinner with a group that included the producer and writer of the movie Milk and Hollywood mogul Rob Reiner, a strong supporter of the Prop 8 challenge.

Both of them are now working on other matters (Boies is representing the wife of Los Angeles Dodgers owner Frank McCourt in their ugly divorce) but we're sure The Dave and Ted Show--as their joint effort to overturn Prop 8 was dubbed--will resume when Judge Walker's ruling hits the Ninth Circuit.

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