But Boies doesn’t believe that pushing ahead with this case threatens the long-term acceptance of equal marriage rights for gays and lesbians. “People are so suspicious of the federal courts right now that they really don’t see it as protecting rights,” Boies admits. “But even if we were to lose in this case—which I know neither Ted nor I is planning to do—you still have the same opportunities to proceed under state law that you had before.”
Another hurdle on the horizon comes from the widely held belief that this case will make its way to the Supreme Court in 2011 or 2012. The potential timing of such a final showdown could directly impact the next presidential campaign. In 2004, the specter of same-sex marriage was potently used as a political tool by conservatives who placed bans on the ballot in 11 states, all of which passed and had the effect of driving up social-conservative voter turnout. While President Obama has stated his opposition to same-sex marriage—favoring civil unions, instead, to date—a pre-November 2012 Supreme Court decision might have deep political reverberations while reigniting this front on the culture wars.
It’s a possibility Boies deftly dismisses, saying “I think that the power of this issue to be used as a political football has been significantly diminished over the last four to six years. If you look at the polls, more and more people—particularly young people—believe that it’s just plain wrong to discriminate based on sexual orientation.”
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