State Bar of Texas Blog
Boies & Olson: Gay marriage latest fight in civil rights movement
The fight for same-sex marriage is part of a continuum of the civil rights movement and one that has only one valid legal outcome, attorneys David Boies and Ted Olson said Tuesday in Austin during the LBJ Presidential Library Civil Rights Summit, which marks the 50th anniversary of the Civil Rights Act of 1964.
The two high-profile attorneys, who successfully represented the plaintiffs challenging California’s gay marriage ban in 2013, opened the three-day summit with an hourlong discussion that touched on their work on the landmark Supreme Court case, their views on the public’s shifting attitudes toward gay rights, and their relationship as a legal “odd couple” who put aside partisanship to work together. (The attorneys hold different political philosophies and argued opposing sides of Bush v. Gore in 2000.)
“I thought it was extremely important that we present this not as a left-or-right issue but as a constitutional issue,” said Olson, who is currently working with Boies in challenging Virginia’s gay marriage ban.
The attorneys acknowledged that some people hold religious objections to same-sex marriage. But as a legal matter, there should be no question about what is right, Boies said.
“As a matter of legal principle, there simply are not two arguments,” said Boies, arguing that the Fourteenth Amendment’s due process and equal protection clauses, along with U.S. Supreme Court precedent, establish a right to same-sex marriage.
The session, moderated by Daily Beast editor-in-chief John Avlon, did not include an opponent of same-sex marriage.
Momentum is strong in the wake of the court’s June 2013 decisions in United States v. Windsor, striking down part of the federal Defense of Marriage Act that refused to recognize same-sex marriages, and Hollingsworth v. Perry, invalidating California’s same-sex marriage ban, the attorneys said.
Since then, federal district court judges across the country, including in Texas, have cited the Supreme Court rulings in striking down same-sex marriage bans in their states, although the rulings in Texas and elsewhere are being appealed. (In announcing he would appeal the Texas ruling, Attorney General Greg Abbott said the U.S. Supreme Court has repeatedly ruled that states have the power to define and regulate marriage and that the Texas Constitution defines marriage as between a man and a woman.)
The district court rulings, along with rapidly changing public views in favor of gay rights, make it clear that the U.S. is on course to legalize same-sex marriage, Boies and Olson said.
“The Supreme Court has said we do not tolerate putting classes of our citizens into boxes and groups in which we deny them rights to equal dignity,” Olson said. “And that’s what we have done with our gay and lesbian citizens.”