David Boies talks to John Seigenthaler

John Seigenthaler: Why did you get involved in the issue of gay marriage?

David Boies: I think it's the defining civil rights issue of our time. This is the one area in which not only do we discriminate against people — and there's a lot of discrimination that still goes on on a social basis — but this is an area where our government discriminates against its own citizens. And as the last essential official bastion of discrimination, governmental discrimination, I think both Ted Olson and I thought it was particularly important that we try to bring an end to that.

They called you the odd couple.

Yes. 

How did this come about?

Well, although Ted and I are quite opposed in a lot of respects, in terms of our politics — and we were obviously against each other in Bush v. Gore — we are good friends. We both always have, I think, respected each other.

We looked for a case to work on together. This was just the perfect case. Because not only was it an opportunity to work on something that was important, but it was an opportunity to work together to try to bring this country farther along on the path to equality.

What's it like to be in a high-profile case like this, especially gay marriage?

Well, if I hadn't been a lawyer, I would have been a high school American history teacher like my father was. So, in one respect, it's a privilege just to be at the scene and see history being made. But, in addition, I think one of the great things about being a lawyer is that you have a chance to fight for justice.

I think on this case, on the gay marriage and the marriage equality issue, both of us believe that this was a critical issue for our justice system, that this was a critical step for this country to take in order to assure that everybody, regardless of race, religion, national [origin], sexual orientation or any other distinguishing characteristic, was an equal citizen in front of the law.

Why did you call your book Redeeming the Dream?

The dream was the dream of equality. That dream was realized in California in 2008, when the California Supreme Court held that all citizens of California were entitled to marriage equality. Then that dream was taken away in Proposition 8. This was, in a sense, a redeeming of that dream. It was also redeeming the dream of equality that Martin Luther King [Jr.] so famously spoke about.

You think there's a direct line between the civil rights movement and the movement for gay rights?

I think there's a direct line. It's not necessarily a straight line. But I think there's a direct line for the struggle of equality that this country has gone through over the last 150 years. It's involved race. It's involved gender, sexual orientation. It's involved religion. It's involved national origin. We have moved increasingly in this country towards the dream of equality. Our founders had great principles. The idea that all people were created equal, that they had certain unalienable rights of life, liberty and the pursuit of happiness. It was a revolutionary idea. It was a great principle. The problem was that in those days, it really didn't apply. They didn't really apply it. When our Constitution says, "We the people of the United States," it really means "we, white male property owners."

Expanding the concept of who the "we" is in "we, the people" has been a process this country's gone through. 

Has this effort moved faster through the courts than you thought it would?

I don't think it's moved faster through the courts than I thought it would. But I think that it has moved in this country faster than any of us expected.

Is public opinion driving the courts’ move?

I think that the courts affect public opinion. I think sometimes public opinion affects the courts. But I think there are two different trains that are going down the track right now. One is the legal train, and the other is the train of the court of public opinion. Fortunately, [I] think both of those trains are going in the same direction. They're both picking up speed.

What's the important legal issue here?

The important legal issue is, does the state have the right to discriminate against certain of its citizens based on sexual orientation, where that discrimination serves no legitimate public purpose? That is one of the things we set out to prove at the trial, was that discriminating against people based on sexual orientation in terms of who could marry seriously harmed them and seriously harmed the children that they were raising.

Perhaps not surprisingly, even the defendant's experts agreed with that. Because it's absolutely clear that when you deprive somebody of a right as fundamental as marriage, you fundamentally hurt them. You hurt them emotionally. You hurt them reputationally. You hurt their place in the community. You hurt them economically. The same kind of damage is done to the children that they're raising.

The second thing that we set out to prove was that depriving people of marriage equality couldn't help anybody. It didn't help heterosexual marriage. There wasn't any legitimate public purpose. It was simply a product of discrimination. It was a product of a belief that people were different based on sexual orientation. And because that didn't serve any legitimate governmental interest, there was simply no governmental basis, no justification, for discrimination based on who could get married and who couldn't get married.

The Loving v. Virginia case — how did that impact what you were doing?

Loving is the case in which the Supreme Court held in 1967 that Virginia's laws that banned interracial marriage were unconstitutional. In that case, the court talks about how fundamental a right marriage is, and how marriage cannot be held back from certain people based on governmental discrimination. That case was racial discrimination. It's interesting that it took the Supreme Court 13 years after Brown against Board of Education to get around to holding that bans on interracial marriage were just as discriminatory as bans on children going to the same schools. I think that says something about the importance of sexual relations and sex and marriage and all the related issues to us in this society. So it was critical, we thought, in the area of sexual orientation, just as it was critical in the area of racial equality, to establish that everybody had the right to marry the person that they loved.

You've watched these laws pop up in states across the country — these are laws that essentially say on religious grounds that business owners don't have to serve same-sex couples, don't have to allow them into their businesses. Do you think that's a direct result of what's going on in the courts regarding gay marriage?

Well, I don't think it's a direct result of it. I think what it is, is it reflects the same kind of discrimination that we're attacking in the courts in terms of marriage equality — just as in the '60s you had businesses saying, "We don't want to serve African-Americans." You have always had establishments that didn't want to serve certain groups of people that people had discriminatory intent about — whether it was based on race or religion or gender or sexual orientation.

I think you see that now. I think that will end as well. Just as it took a while to integrate the lunch counters of the South in terms of racial equality, it may take a while to be sure that all businesses are integrated in terms of sexual orientation. But that is something that's coming in this country.

Do you think about the other side and where they come from on this issue?

Sure. Absolutely.

Where do you think it comes from?

Well, I think it comes from different places. I think with respect to some people, they have a genuine and sincere religious belief that heterosexual marriage is the only marriage that God intended. That's a religious belief that they're entitled to have. Our First Amendment to the Constitution guarantees them the right to have that belief and the right to practice that belief in their church. But the same First Amendment to the Constitution also guarantees that they do not have the right to impose those religious beliefs on anybody else. So they can decide how they will live their lives, but they cannot decide …

For example, an individual can believe in their hearts and in their religion that whites are superior to African-Americans, but they do not have a right to run their business that way. Because when you engage in commerce, when you open up a business, you take on certain rights and responsibilities. One of those responsibilities is not to discriminate against customers.

This is going to come back before the [Supreme] Court?

It probably will. Since the decision last June you have had numerous federal courts around the country, in Ohio and Oklahoma and Texas and Virginia and Utah — all of the country — faced with a question as to whether or not discrimination based on sexual orientation into who can marry is constitutional.

Every one of the judges who has decided that case has decided that the federal Constitution forbids discrimination based on sexual orientation in terms of who can marry. This is not a Republican or a Democratic issue, a conservative or liberal issue. This is an issue of interpreting the Constitution. Judges are consistently now interpreting the Constitution to require marriage equality.

When you say it like that, I almost wonder why this didn't happen 10 years ago.

That is exactly what my children and grandchildren are asking me. What they're asking is, "What's the issue? Why did it take so long? Why does anybody believe that people ought to be discriminated against based on sexual orientation? Why does anybody believe that you ought not to be able to marry the person that you love?"

It's only the people who have grown up in eras in which they didn't know people of different sexual orientations, because the kind of discrimination that existed required people to hide their sexual orientation so much. Those are the hearts and minds that we have to win. The young people who have grown up in a different era, the battle's over with respect to them.

Until the gay marriage case, was Bush v. Gore the biggest case of your life?

There have been a number of big cases. But I think that probably Bush v. Gore prior to the marriage equality case was the case that was the most important to the country.

How did you get involved in that case?

I was called after the election by Vice President [Al] Gore's team and asked to come down to Tallahassee for, they said, "a couple of days" while we sorted this out. I didn't really get to sleep for the next 30 days as we went from court to court. We went to the United States Supreme Court twice. We went to the Florida Supreme Court three or four times, all within a space of 30 days.

Did you anticipate that it would take that much time and that many courts and would go all the way to the Supreme Court?

I don't think anybody at that time anticipated it would take that long, go to that many courts, and certainly not to the Supreme Court. I think most people thought that this was a case that would be decided in Florida, by the Florida Supreme Court, under Florida law.

That's the way elections had always been decided before. We'd only had one time in our history where you'd had participation by Supreme Court justices, and that wasn't even as a court. That was as part of a panel that included three people from the Supreme Court, three people from the House of Representatives and three people from the United States Senate. Although they were justices, they weren't acting in a judicial capacity. You'd never had the Supreme Court as a federal judicial body deciding who became president of the United States.

What was at stake in that case?

Well, a lot of things.

Other than the leader of the free world.

I mean, the leader of the free world was at stake. That was a pretty important decision, and maybe a more important decision than we realized at the time. I think that in addition to what was at stake was the way our democracy works. Whether you're going to have judicial intervention to stop vote count. 

Remember what happened here was that under Florida law, people are entitled to a recount in a close election. And what happened here was the Supreme Court, five to four, stopped that recount. It even stopped the recount even before they'd had argument. They then had an argument and confirmed it.

But they stopped the recount even before they'd had argument on the case.  And one of the things that the majority judges said was, "We want to stop the recount because if the recount shows that Vice President Gore is the winner, then that will undermine the legitimacy of George Bush's presidency” — which obviously was true. But I think some people would argue that that decision, in a long-run sense, also undermined the legitimacy of the electoral process.

I know lawyers don't like to lose cases. But can you please describe to us what it is like to lose a case like that?

I had a birthday celebration not too long afterwards. One of the toasts remarked that every lawyer loses cases but I had the distinction of losing the whole country. 

You feel that burden?

I think you always wonder whether there was something else you could've done. I think one of the things that has helped is some of the books and articles that have been written that interviewed judicial clerks and the like make clear that this was something that the court had decided even before the argument. 

The argument didn't make any difference?

You always hope an argument will make a difference. You always hope that you can break through. You always wonder whether there was something that you could've said that could have broken through that perception — gotten them to change their mind, gotten one judge to change their mind.  But I haven't been able to think of [what] that would've been that we didn't say.

What advice do you have for young lawyers coming up in the business?

Get lucky. I mean, you look back on a career such as I've had, and the opportunity to handle these cases is something that you could not have predicted and you could not have controlled. A lawyer has to take advantage of the opportunities he's given.

One thing I'll say on my behalf is that I've worked hard and I've taken advantage of these opportunities. But you don't get these opportunities by particularly hard work. You get a good part by luck.

The very first high-profile case I did was a very, very large antitrust case that I tried in California. I was the fourth choice for that case. The other three turned it down. If any one of those three had taken it, I wouldn't have had that opportunity.

A lot's been made about your dyslexia. How do you think that's affected your work?

In an ironic way, I think it's actually helped me. Because the skills that I developed to adapt to the fact that it's hard to read are skills that I think have helped me as a lawyer. For example, I was in high school debate. In high school debates, you have these notecards. Because of my dyslexia, it was very, very difficult for me to actually use notecards. Because it took me so long to locate it and look down. There'd be so much pause and dead time, it totally destroyed the effectiveness of the argument.

I had to learn to talk extemporaneously without notes. That's been an enormous advantage in talking to juries and, to some extent, to judges. Because it allows you to be much more conversational, allows you to be much more relaxed, much more natural. I think it's a more effective way of communicating.

That is a consequence of dyslexia. Now, I would not wish dyslexia on anybody. But what it demonstrates is that dyslexia is not a disability. It's a difference. You can adapt to that difference. You can have success with that difference, and sometimes succeed even more because of the difference than you could have without it.

This interview has been condensed and edited.