Olson and Boies: from Bush v. Gore to Prop 8

Monday, March 19, 2012

David Boies, chairman of Boies, Schiller and Flexner, defended Al Gore in 2000. He and Ted Olson, former solicitor general of the United States, discuss why, after arguing opposite sides in Bush v. Gore, they joined forces in defense of gay marriage and where the Prop 8 case is headed.

EVENT: See David Boies and Ted Olson in a discussion moderated by Bill Keller tomorrow night at the 92nd St. Y.

Comments [23]

Brian from Larchmont, NY

In Bush v. Gore, I think a most critical problem was the Butterfly ballot that basically resulted in the state taking citizens' votes not as the citizens wanted them recorded but incorrectly. In no commercial transaction would such a transaction be valid. Admittedly, in elections voters do not receive a confirmation of their votes, but the principle that their vote should be properly recorded I contend must be acknowledged to be paramount. The hundreds or thousands of Palm Beach votes that were cast mistakenly for Pat Buchanan was a fraud upon the voters not just of Palm Beach but of all citizens in this country. States owe an obligation to all citizens - even citizens outside their state, b/c of the state's involvement in the Federal system - to have a valid election process. David Boies and associates, I believe, should have obtained affidavits from all the voters of Palm Beach that they possibly could have because I believe such affidavits would have shown that more than enough people whose votes were recorded for Buchanan really wanted Gore and that such numbers would have both galvanized Gore supporters and open-minded people across the country and also resulted in a different Supreme Court Decision because no one that believes in democracy can believe that citizens votes that were miscast BECAUSE of a problematic ballot - should not have their correct intention and vote recorded. The taking of a person's vote without confirmation ought to be an unacceptable state action, just as it is unacceptable in any commercial transaction to take something of another without confirmation of the transaction. David Boies, who I widely regard as a terrific attorney, made a serious mistake in not having the virtual disenfranchisement of the Palm Beach voters via the Butterfly Ballot a central argument of his case. I welcome all opposing views and questions.

Mar. 19 2012 11:54 AM

Let's keep our eyes on the prize. David Boies and Ted Olson are to be commended for keeping the focus where it
should be, and using their credibility, integrity and legal acumen to support marriage between same-sex partners
(how smart of them to make the distinction between "same-sex marriage" and "marriage between same-sex
partners," so the issue can be framed - as it should be - from a human-rights perspective).

Mar. 19 2012 11:54 AM

@Becky -

How is it different? An individual chooses neither their race or their fundamental sexuality. The society they live in controls how they are treated because of their race and their sexuality. Two people receiving the full benefits of married life does not affect me or my world view in even a small way. Why is it important to you that homosexual unions not be called marriage?

Mar. 19 2012 11:53 AM
Jan from Manhattan

How do Mssrs. Olsen and Boies intend to counter the arguments of the so-called strict constructionists on the Court that the purpose of the 14th Amendment was to seek to eliminate the vestiges of lingering racial discrimination, to which Mr. Olsen referred, but more, an argument with which many on the Court, if not a majority, agree? Justice Scalia gave an interview about a year ago in which he essentially declared that all laws which gave women greater rights that were based on the Equal Protection Clause of the 14th Amendment were wrongly decided and should be reversed. As an attorney I know the strict-construction versus as Ted Olsen much less David Boies would so well argue meaning of the words, not the original purported specific intent should govern interpretation, but that is not how much of the Court is now populated.

I tried to call in with this question but alas was too late.

I teach a course entitled "Women and the Law" and would love to have a transcript of this discussion, because it was great, because I think it wonderful that Mr. Olsen and Mr. Boies, despite Bush v. Gore and other philosophical or political differences, have come together and are fighting this on equal protection grounds, and think my students would so benefit from reading the transcript of this great interview.

Jan Kleeman

Mar. 19 2012 11:48 AM
Sheldon from Brooklyn

Becky - I don't get your "How many Jews" premise.

Mar. 19 2012 11:46 AM

Which is more likely? The majority recognizing that marriage is a human right and therefore your choice of partner does not get subjected to majority rule or that the civil matrimony contract prevails and, therefore, civil unions for everybody.

Mar. 19 2012 11:37 AM
The Truth from Becky

and before anyone ignorantly compares this thing to Black civil rights issues, it is NOT the same fight. Being Black is not the same as two people of the same sex trying to get "married" and have sex without the ability to pro-create.

Mar. 19 2012 11:37 AM
real nyer

While there is (thankfully) a generational transition to more acceptance of same sex marriage, there is another huge, less hopeful divide with fundamentalist religious people saying the Bible forbids homosexuality and thus same sex marriage. Even (some) African-Americans don't see any parallel to racial civil rights. How do you counter these views, or is it useless?

Mar. 19 2012 11:34 AM
The Truth from Becky

Brian what is the percentage of jews that voted for prop 8 please?

Mar. 19 2012 11:34 AM
Amy from Manhattan

I'm not sure of the numbers, but I remember reading soon after the 2nd vote on same-sex marriage in California that the proposition against it had passed by much less the 2nd time than it did the 1st time (something like 4% vs. 20%). If that's true, maybe it won't be long till support for same-sex marriage increases to the point where a proposition allowing it can pass.

Mar. 19 2012 11:33 AM
Sheldon from Brooklyn

Tom - the term "marriage" - due to an accident of history and language, seeped into the civil books, so the State recognition of such, is now a civil matter - Religious organizations have a right to discriminate - the Govt does not.

Mar. 19 2012 11:28 AM

It was the Democrats stupid strategy of counting only the undervotes. Gore wins if a strong standard is used STATEWIDE to re-count undervotes AND overvotes. They wasted 20+ days on the wrong target...

The deadline would have passed with the re-count still undone...The Florida legislature would award the electoral college votes to Bush. We'd still be Iraq...but the American people would have known the steps that the GOP was willing to go to in order to steal an election. This MAY have given Kerry a better shot in 2004...maybe not.

Mar. 19 2012 11:28 AM
bob from flushing

Florida aside, there's no disputing that Gore won the popular vote. The electoral voting system should be abolished.

Mar. 19 2012 11:26 AM
John A.

I just wonder what happened to marriage as a celebration of natural childbirth. Erosion from both het- and hom- communities.

Mar. 19 2012 11:22 AM
A K from Highland Park, NJ

Marriage is already overloaded in importance. Expanding "marriage" to gays without dealing with the underlying issues is creating a social construction of no coherence. If two adults live together to bring up their orphaned friend's or relative's kids, these should be considered a "family" whether or not the adults involved have a romantic or sexual relationship. If an elderly brother and sister live together in their old age, shouldn't they get special consideration? I have heard same-sex marriage advocates explicitly exclude cases like this, and I think that really undermines the legitimacy of the effort, and amplifies the "culture war" aspect of the dispute.

Mar. 19 2012 11:21 AM
Seth from UES

I'm part of a group of bi-national couples suing for the right to marry my foreign national partner. Most gay people don't know what DOMA is, partly because of this state-to-state marriage movement. Can they speak about the Obama administrations stance on DOMA?

Mar. 19 2012 11:21 AM
Tom from Toronto

A very large number of the populace still support (unapologetically) the definition of Marriage as between "a man and a woman", and we are neither neanderthals or homophobes. This is one of our oldest and most sacred traditions. Civil unions for homosexuals is fine, but please leave society the traditional and ancient definition of marriage. We mess with this at our peril.

Mar. 19 2012 11:18 AM
Sheldon from Brookyn

JG - I agree with you, that's why I don't understand your past opposition to "gay marriage"

Mar. 19 2012 11:15 AM
jen l from manhattan

Just to set the record straight: Mr. Olsen said he did not think the issue of marriage had been before the American public for very long. I would like to remind everyone that the GWB reelection victory was largely attributed to the then-recent spate of gay marriages that were seen to mobilize the conservative base. It was only about ten years ago the mayor of New Paltz began marrying gay couples and helped set off this reform.

I am happy to see that Republicans and conservatives are becoming more reasonable about the issue, but there is no need to rewrite history.

Mar. 19 2012 11:14 AM
jgarbuz from Queens

AGAIN, "marriage" should not be the business of the government, period! Governments should not marry people. Governments should only register CIVIL UNIONS or register religious marriages. But a state bureaucrat is not a priest, imam or rabbi. A gov't official should not be "marrying" people at all.

If the government simply passed a law that replaced its power to marry with a simple ability to register people who choose to live together in a recognized civil union, that would solve the problem. Marriage is not a government business.

Mar. 19 2012 11:11 AM
Sheldon from Brooklyn

Regardless of what one thinks about "gay marriage" or marriage equality, equal representation under the law should NEVER be left up to referendum or popular vote. That's why Prop 8 was so revolting.

Mar. 19 2012 11:10 AM

Justice Kennedy is the ballgame. What makes you guys think you can get his vote?

Mar. 19 2012 11:09 AM
Edward from NJ

The talking point for marriage equality opponents is that Ted Olson is just a "hired-gun" who doesn't necessarily believe in the cause. Can we get a sound bite from Olson that debunks this notion?

Mar. 19 2012 11:04 AM

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