(Deborah Svoboda/KQED)

In 2000, superstar lawyers Theodore Olson, a Republican, and David Boies, a Democrat, faced off in the bitter partisan battle known as Bush v. Gore. Later, they joined forces across ideological lines to take up a monumental challenge: the fight for marriage equality. Olson and Boies’ new book “Redeeming the Dream: The Case for Marriage Equality” outlines their journey from 2008 when California voters passed Prop. 8, to 2013 when its defeat in the Supreme Court allowed same-sex marriages to resume. They both join us in the studio.

Guests:
Theodore Olson, partner at Gibson, Dunn & Crutcher who has argued over 60 high-profile cases in front of the Supreme Court and co-author of "Redeeming the Dream"
David Boies, lawyer and chairman of Boies, Schiller & Flexner LLP and co-author of "Redeeming the Dream"

  • Skip Conrad

    What is the process for removing section 7.5 from the California Constitution?

    • Another Mike

      Either the legislature can propose a referendum, or citizens can petition for an initiative.

      • Skip Conrad

        That’s my point. The California Constitution still states only a heterosexual marriage is recognized in the state. A court can’t change the Constitution.

      • Skip Conrad

        …and if citizens petition for an initiative / referendum – what if it looses?

        • Another Mike

          A loss will have no legal effect; a win removes Prop 8 from California’s constitution.

  • Beth Grant DeRoos

    Do either Mr Boies or Mr Olson see a possibility of the Court ever approving polygamy which is also a personal choice whose roots go back to Biblical times which many believe should be legally approved

    Also remind people that we live in a Constitutional Republic, not a theocracy.

    • thucy

      It’s always weird when a woman argues for polygamy – an institution which is considered by most civilized people in the world to have been historically anathematic to women’s rights. Is it just a one-off, or is your sentiment in favor of polygamy, and your assertion that it possesses some extra-special validity because it “goes back to biblical times” representative of the other God-fearing folk in Calaveras County?

  • ES Trader

    Do you think that the way Prop 8 was worded on the ballot confused voters? I initially though “Yes” meant in favor of marriage.

  • thucy

    Two of my favorite women have each been able to marry their respective same-sex partners this summer, and it makes me really happy to see them so happy.
    At the same time, it concerns me that so many in the Democratic Party misused the issue of gay marriage as a kind of fig leaf for ignoring far more grave denials of basic human and civil rights.
    The mass incarceration of black males for non-violent drug offenses (which are rarely prosecuted in the white community) seems to me a blight on our notion of ourselves as a just state. In the words of journalist David Simon, their mass incarceration has been “a holocaust in slow motion.”
    What Simon means in comparing it to the Holocaust is that it is essentially ethnic cleansing.
    Why is it so much easier to fight for gay marriage than to dare to say that our country is essentially an apartheid state?
    When will Boies and Olson, soi-disant human rights champions that they are, address the more serious human rights violations in this country?

  • Chris OConnell

    I think it is a bit naive for David Boies to say 95% of people will agree once you make the case for civil rights. People who believe in the Bible and the Koran as the word of God will not be swayed by the argument. That is a pretty large amount of people. I believe every shred of opposition to gay marriage derives from religious beliefs.

    • Beth Grant DeRoos

      Unless those conservative Bible folk are reminded of Mark 12:17 ‘And Jesus answering said unto them, Render to Caesar the things that are Caesar’s (government), and to God the things that are God’s (what a religious institution requires).

    • Skip Conrad

      I oppose gay marriage – not based on religious beliefs.

      • Chris OConnell

        There is no explaining some people.

  • Another Mike

    The problem with bringing suit is that Prop 8 is still in California’s constitution. Support for same sex marriage had been increasing in California, and likely Prop 8 would have been overturned at the ballot box by now.

    • jurgispilis

      If that’s the case, bring it on! Activists are afraid to bring another Prop 8 before the Californai voters. Afraid gay marriage would lose.

  • Ben Rawner

    You guys are true American patriots in every sense of the word. My question did you ever think you were going to lose?

  • Debbie Neff McKee

    I watched ‘The Case Against 8’ and the next night watched the special about the northern students registering black voters in Mississippi in 1964 and saw so many similarities between the two sides in opposition to extending the rights one side possessed to those they saw as undeserving (homophobia/racial prejudice)…hatred and
    prejudice were ultimately not allowed to rule the day…thank you Ted and David…thank you all of those who risked their lives in Mississippi!

    Constitutional rights should NEVER be put on the ballot!

    • thucy

      Debbie,
      There certainly are similarities. And yet, do you think it’s possible that the gravity of the two situations were very distinct?
      That is, in a secular democracy, the right to vote and the right not to be lynched is primal and sacred. These were literally life-or-death situations, and the urgency of gay marriage was far less clear, and far less dangerous.
      In a secular democracy, perhaps marriage should remain the province of the church, and the state should only provide civil unions to all, gay or straight.

      • Debbie Neff McKee

        I was struck by the similarity in the vitriol and hatred of the bigots and homophobes towards the black and gay citizens.

        • thucy

          Indeed, there are similarities, Debbie, and yet there were hundreds of lynchings of blacks in the South. The fight for civil rights was literally a life-or-death issue.
          Moreover, black men CONTINUE to be ethnically cleansed via the grossly unequal prosecution of the drug war. This is not happening to the LGBT community.

    • Skip Conrad

      Where in the constitution does it state such a right?

    • thucy

      “hatred and prejudice were ultimately not allowed to rule the day…”

      Debbie,
      If that is the case, why is journalist and writer David Simon calling the mass incarceration of black males “a holocaust in slow motion”?
      If that is the case, why was Michelle Alexander’s “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” on The New York Times best-seller list for so long?
      Are you in denial, Debbie? Or do you just not know? Please know. Please pay attention. Please do not praise this country for justice it hasn’t achieved.

      • Debbie Neff McKee

        You are taking this too far and I choose not to continue this discussion.

    • ES Trader

      disregard the idiotic replies to your rational comments, some have nothing better to do than annoy

    • Another Mike

      Gays went to the same schools as straights, ate in the same diners, rode in the same part of the bus, used the same restrooms and water coolers, had the same right to vote, etc. They did have to disguise and suppress their love life and their life partners, meaning many had to live a lifelong lie.

  • Kurt thialfad

    What would have been the outcome had Jerry Brown and Kamala Harris chosen to defend the California Constitution and the will of the people of California?

  • jurgispilis

    Is a drivers license a right? Is a contractor’s license a right? Why is a state marriage license a right?

    • $2870056

      Look up “privilege” and “right” in any law dictionary or any English language dictionary.

      • jurgispilis

        A privilege a right or benefit that is given to some people and not to others. Not everyone can marry, so it’s a privilege, not a right.

        • $2870056

          Hope you pass the physical, written and “driver’s” tests for your marriage license. Tell them you have a “right” to renew the “privilege” regardless, if you’ve obeyed all the rules and regulations, or produced children.

          Lots of reasons the state would give to some for “revocation.”

  • Skip Conrad

    If you open up the marriage laws, shouldn’t you also open up the divorce laws? Will there be more incidences of marriage fraud?

  • Another Mike

    Per the Supreme Court, Judge Walker’s opinion is the only one that matters.

  • Beth Grant DeRoos

    Why is Government even involved in marriage?

    • Another Mike

      Marriage is a legal relationship which spells out the rights and responsibilities of each partner. It is not a contract in the usual sense, because it is not worked out via a negotiating process between the two parties.

  • wbeeman

    Thanks to Olsen and Boies my partner of 30 years and I were able to marry in California two weeks ago. It has solved many uncertainties in our lives. One of us lives for much of the year in Minnesota. As a result of the Prop 8 and DOMA decisions in the Supreme Court, the Minnesota legislature also legalized same-sex marriage in Minnesota. This made it possible for our marriage to be legal in both states. Thank you both for your part in this decision, as well as the legal team that was responsible for the DOMA decision. Please also acknowledge the DOMA team as part of this great movement.

  • Chemist150

    The original spirit of the US Constitution was to limit government and ensure the rights of the people. Anyone who supports using any Constitution to deny rights to people violates the spirit of the Constitution. Frankly, it’s un-American.

    • jurgispilis

      But, on the other hand, the State can put restrictions on marriage – age limits, not siblings or cousins, can’t be currently married, pass blood test, etc. Why not get the State out of the marriage business. Treat all citizens as individuals. Only step in to protect minor children.

      • Chemist150

        Individual laws are separate from Constitution leaving every law subject to a Constitutional challenge. That’s the point.

    • Another Mike

      The original spirit of the US Constitution was to limit the power of the federal government against the states and against the citizens. The US has no general police power while the states do. And the states can regulate what people are allowed to do, for the welfare of all.

  • Mark Yates

    I really don’t see how we can say that the state has no legitimate interest in preserving traditional views of marriage with respect to same sex marriages on the one hand, but that it does have a legitimate interest in refusing to recognize other non-traditional forms, like plural marriages, on the other hand. I suppose we can always find studies about exploitation of women in polygamous marriages (although I question whether that is a good reason in the first place), but that assumes all plural marriages involve one man and multiple women. What about multiple men and one woman, or all the other possible combinations? Are there any studies about that? On what basis would the state refuse to recognize those non-traditional forms of marriage?

    • thucy

      “but that assumes all plural marriages involve one man and multiple women. What about multiple men and one woman, or all the other possible combinations? Are there any studies about that?”

      Are you serious? What is the proportion of ploygamous marriages wherein there is one female spouse and multiple male spouses?

      • Skip Conrad

        Elizabeth Taylor is a good example.

        • thucy

          Perhaps I simply do not read The Enquirer enough at the grocery check-out stand, but… in what manner were any of Liz Taylor’s marriages polygamous?

          • Another Mike

            Serial monogamy.

          • ES Trader

            Try to recognize sarcasm, relax

          • Skip Conrad

            Well, obviously there is overlap, while one spouse is arriving, and the other is departing. There is also relapse, where a liasion is established with a former spouse. I don’t know what kind of activity occurred in Liz’s bedroom, but I imagine it was adventureous.

      • Mark Yates

        It doesn’t matter what percentage. Are you saying we can deny rights to people if only a few want them? I strongly support state recognition of same sex marriage but it’s better to accomplish it through the political process. If we have a constitutional rule it has to apply equally to everybody and that easily could include plural marriages.

    • $2870056

      “How many?” is a settled issue. You want to find out – go to court and plead your case. “Are there any studies…” You can read – lots of material in legal and lay writing all over the web.

      You have to be willing to do your own work.

    • jurgispilis

      In their early history, the Mormans provided a notable role with plural marriage. In mid to later 1800’s America during early industrialization, there were massive deaths in mines. factories, etc. Consequently, there were many, many widowed women with children. The Mormans provided some ‘legal’ status for many of these women, by allowing them to associate with a man who was already married. I believe plural marriage can be appropriate under certain conditions. It’s kind of hard to deny it, when gay marriage is permitted.

    • ES Trader

      As far as I know one won’t be arrested for having multiple relationships so why is it necessary to marry? What will be the legal implications regarding property, inheritance, health insurance, and even IRS ?

  • $2870056

    Thank you Mr. Olsen and Mr. Boies (and Judge Walker!)

    After a 33 year “engagement,” we married at City Hall in San Francisco in 2008. Next year, about the same time as a final US Supreme Court decision, we will celebrate our 40th anniversary.

    – two old dudes who live to see the day

  • disqus_63X8zNMKNl

    It’s amazing to me to hear Ted Olsen argue in favor of gay marriage. I went to college at University of the Pacific with Mr Olsen; his girlfriend and later first wife was a sorority sister of mine. Ted was strongly conservative, his girlfriend strongly liberal, and their political fights were legend at our small university. (Olsen was later part of the G.W.Bush administration.) I never thought I’d hear him support the right of gays to marry. I’d be curious to know if his other political views have changed as well. But as Mr Olsen was renowned even at age 18 for his brilliance–it was obvious he was going far as he went on to Boalt law school–amazing as it seems, all of us who favor equal civil rights for all, including marriage, we can all be grateful that a man as brilliant and influential as Ted Olsen has taken up the cause.

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