David Boies, a lawyer for two couples challenging California's Proposition 8, predicted in San Francisco Friday that the U.S. Supreme Court will take up the case and will eventually rule in his clients' favor by a greater than 5-4 majority.
"I believe we will get more than five votes," said Boies, speaking of a possible future decision by the nine-member court on the state's same-sex marriage ban.
"This is a civil rights case of the same importance as Brown v. Board of Education and Loving v. Virginia," Boies said.
The two cases were the court's unanimous decisions outlawing school segregation in 1954 and striking down a ban on interracial marriage in 1967.
"I think the justices have a history of coming together and rising above their personal views to enforce the Constitution's guarantees of equality," he said. Boies, of Armonk, N.Y., spoke in an interview shortly before receiving an award from the University of San Francisco Law School's Public Interest Law Foundation in a Friday evening ceremony.
Boies and Theodore Olson, of Washington, D.C., are the lead attorneys for a lesbian couple from Berkeley and a gay couple from Burbank who filed a federal lawsuit in 2009 to challenge the ban enacted by state voters in 2008 as Proposition 8.
The two lawyers were on opposite sides of the Bush v. Gore presidential election recount battle in 2000, with Olson representing Bush and Boies representing Gore. The case ended in Bush's favor five weeks after the election when the Supreme Court blocked a Florida recount by a 5-4 vote. Asked about the fact that the Nov. 6 presidential election was completed without a similar dispute, Boies said, "I was very happy" that there was no protracted post-election battle. "That was great," he said.
But Boies said that if there had been litigation, he had arranged with the Obama campaign to be available to help Obama's legal team with "whatever they needed."
"Whether they would have needed anything (from Boies) would have depended on the issue," he said. In the Proposition 8 case, the initiative's sponsors have appealed to the Supreme Court to overturn a decision in which the 9th U.S. Circuit Court of Appeals in San Francisco ruled the measure unconstitutional. The high court is expected to announce as soon as Nov. 26 whether it will review the case.
If it declines to hear it, the lower court decision allowing same-sex marriage to resume in California will go into effect.
If the court grants review, it would be expected to hold a hearing this spring and issue a written decision by the end of June.
The ban has remained in place until the appeals are completed. The court takes only a small percentage of the cases appealed to it.
Boies said it is difficult to anticipate what the court will do, but said, "If I have to make a prediction, I would predict the court will hear our case."
And, he said, "If they take it, I think we will win." Boies said his confidence is based on two separate lines of previous decisions by the court. In one set of cases, he said, the court has said marriage is a fundamental right. In the second set, the panel overturned a Texas law criminalizing gay sexual activity and a Colorado ban on legal protections for gays and lesbians.
"You can't weave those two lines of cases together and come up with a basis for overriding the 9th Circuit," Boies said.
"You simply cannot reconcile (the initiative sponsors') position with binding Supreme Court precedent," he maintained.
The Proposition 8 defenders contend that California voters were entitled to choose a traditional definition of marriage and that states should be allowed to define marriage within their borders, acting through legislatures or voter initiatives.
Boies was asked whether the Nov. 6 vote by citizens in three states to legalize same-sex marriage might affect the Supreme Court's decision on whether to hear the Proposition 8 case.
The elections in Maryland, Maine and Washington were the first time that gay marriage was allowed as a result of a popular vote rather than a legislative or court decision. Including those states, same-sex marriage is now legal in nine states and the District of Columbia.
"It's impossible to tell" how that election outcome might influence the court, Boies said, because it could affect the justices' thinking in any of several ways.
On one hand, the court could see an increase in public opinion supporting same-sex marriage as a reason to act, he said.
On the other hand, the court could conclude, "Let's give it more time," and wait to see whether a trend continues in more states, he said.
If the Supreme Court declines to take up the Proposition 8 appeal, the 9th Circuit decision would go into effect, but would apply only to California.
The reason is that the circuit court ruled on a narrow ground, saying because same-sex marriage was legal in California for several months in 2008, it would be unfair to deprive gays and lesbians of an existing right.
By contrast, if the Supreme Court takes up the case, it could, but does not have to, issue a broader ruling on whether there is a constitutional right to same-sex marriage nationwide.
Nov. 26, following the Thanksgiving weekend, could be the date when the court will announce its plans because the justices are due to consider Proposition 8 along with related challenges to the federal Defense of Marriage Act during their private conference on Nov. 20. The court usually announces orders on the Monday after a conference.
But the court is not obligated to decide then whether it will review Proposition 8 and has no deadline for taking action on the appeal, Boies noted. Still, "It would be great to get a Thanksgiving present," he said.