Making a Supreme Court Case for Gay Marriage

Attorney David Boies knows what it's like to argue a historic case before the U.S. Supreme Court, and he knows what it's like to lose. A decade ago, he squared off against Republican stalwart Theodore Olson before the Justices in Bush v. Gore, the case that narrowly decided the 2000 presidential election in Bush's favor and quickly earned a place in the minds of some legal scholars as one of the high court's most nakedly partisan decisions of all time. Now, thanks to last week's ruling in favor of gay marriage before a federal judge in California, Boies and Olson are working together on a case many feel is as important — and no less political — than Bush v. Gore, and one that is on a collision course with a court that has grown only more conservative over the intervening 10 years.

If the Supreme Court decides to hear their case, Boies and Olson must persuade at least five of its Justices that the decision laid down last week in San Francisco presents the basis for a decision both sides say would be a landmark ruling on one of the fundamental rights in American jurisprudence: the right to marriage. As he awaited the California decision earlier this year, Boies told TIME that no matter what the law says, Justices bring their own perspectives to play as they confront cases that deal with vital questions of public life. "There isn't any doubt," Boies said, "that Justices' private views play a role in how these cases are decided."

But both he and Olson say that even if the odds appear long, a strong case and powerful arguments can change the minds of even a Supreme Court Justice. "All we, as lawyers, can do, is to present the strongest factual record and most thoroughly researched legal arguments and analysis in the most persuasive manner possible," Olson told TIME on Sunday. "In this case, we have an overwhelming factual record — to adopt the phrase used by the trial judge — and extraordinarily powerful legal arguments."

Much has been made of that factual record, and indeed U.S. District Judge Vaughn Walker spent scores of pages laying out a long list of findings that, he wrote, had been established as fact during the contentious, weeks-long trial. Among the findings was proof that rules of marriage had been fluid across history, that gender roles once held as absolute are no longer as important in understanding or defining marriage, and that gays and lesbians had been historically discriminated against to the point that laws aimed specifically at them merit additional judicial scrutiny.

Olson says he and Boies will use those findings of fact to anchor their legal arguments as they defend the case in the Ninth Circuit Court of Appeals and, if the Justices take it, before the Supreme Court perhaps as soon as the 2011 term. "We have exhaustive and comprehensive highly favorable findings of fact and conclusions of law by an experienced and respected jurist who carefully examined the evidence presented by our nine experts and eight lay witnesses, and the best arguments and evidence that skilled lawyers on the other side could present," he says. "We feel that we have a powerful and compelling record to lay before the appellate courts. We can't do more than that."

But will it be enough?

Critics of the California decision, including the Rev. Albert Mohler, president of the Southern Baptist Theological Seminary, dismissed the evidence Walker wrote into his opinion as having been selectively admitted — and contrary to thousands of years of human experience, he told TIME. Even legal experts who saw in Walker's verdict a decisive and powerful ruling in favor of gay marriage cautioned that no matter how persuasive, findings of fact alone won't ensure a positive decision by another court.

Professor Marc Spindelman of the Ohio State University law school extols Walker's decision as a two-pronged "constitutional knockout," but nevertheless tells TIME that a victory at the trial level hardly determines its ultimate outcome. "On appeal, not all facts are equal," he says. "Fundamentally, [the ruling] turns on questions of law. What does the Constitution mean? What is the right to marry? How broad or narrow is it? The facts produced at trial — and the facts that were not produced at trial — can help answer these and other legal questions. But they don't decide which legal questions will finally govern the disposition of the case."

And as Boies' experience shows, sometimes even rulings on questions of law can be influenced by what amounts to an innate sense of how a case should be decided. When the Justices issued their speedy decision to halt the vote-counting in Florida in 2000, Boies was among those advising Al Gore to accept the ruling immediately and give up. "It may be wrong that they shot us, but we are still dead," he later recalled telling his colleagues. But accepting the outcome did not lessen his conviction that the decision was unprincipled and driven by bias. "The majority abandoned virtually every rule the Court ordinarily follows in deciding cases," he wrote in his 2004 memoir, Courting Justice: From NY Yankees v. Major League Baseball to Bush v. Gore.

It appears unlikely that Boies' chances have improved any from a decade ago. Two members of the Bush v. Gore majority have been replaced, but each with a Justice who is as conservative or more so than his predecessor. President Obama's two recent appointments to the court promise to bring a more liberal mind-set, but not in a way that has prevented it from edging rightward.

Still, there is the Kennedy factor. Justice Anthony Kennedy has a conservative record, and helped seal Gore's fate in 2000. But in 2003 he wrote an opinion in Lawrence v. Texas that, in overturning a previous decision known as Bowers v. Hardwick, struck down state laws that made gay sex a crime. In doing so, he pointed to the changing notions about homosexuality across the country and the globe, and finally concluded that moral judgments alone cannot be the basis for law. A furious Antonin Scalia read his dissent from the bench that day, calling the court's ruling a "massive disruption of the current social order." "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices," Scalia fumed. "Every single one of these laws is called into question by today's decision; the court makes no effort to cabin the scope of its decision to exclude them from its holding."

Judge Walker's ruling on Proposition 8, which cited both Justices' opinions, seemed custom-tailored to engage Kennedy and Scalia's thinking left over from Lawrence. You couldn't ask for a clearer clash of worldviews on the part of two conservative members of the Supreme Court. Sometime in 2011 or 2012, when the Supreme Court would most likely hear the case, two gambling attorneys, along with the rest of the nation, will discover what happens when the logic behind Lawrence is put to the test.