David Boies, from Prop 8 to the NFL

David Boies and Ted Olson have been the lead counsel and the face of the trial challenging the validity of Proposition 8 in California.  Due to their seemingly opposite political leanings, particularly highlighted by being direct opponents in Bush v. Gore in 2000, the pairing of the powerhouse attorneys has been a major headline of that case.

I’ve blogged several times about the Prop 8 case, especially during the initial trial stage while all the juicy facts were coming out.  Currently, the case is on appeal focusing on a procedural issue of standing.  Once that issue is resolved, the court(s) will move on to the substantive issues: whether Prop 8 was unlawfully discriminatory.

The interesting story this week, at least for the scope of this blog, is that Boies was hired to join the team of counsel representing the NFL in the antitrust litigation with the NFL Players Association, Brady vs. National Football League.

Without getting into all the merits and substance of the lockout and antitrust lawsuit, there are two sub-stories that I wanted to address (that will probably go unnoticed by the general media).

(1) Almost every news outlet excluded Boies’ current high-profile battle in the Prop 8 case when listing his credentials.

In the NFL’s press statement announcing the hiring of Boies they listed off some of his main credentials (I’ll add in (1), (2), and (3) so you can read it more easily):

(1) Last November, Boies won a $1.3 billion copyright infringement verdict for Oracle — the largest verdict of its kind in history.

(2) Boies is currently co-leading a landmark civil rights case involving the Constitutional protection of same-sex marriage.

(3) He is the recipient of numerous awards and accolades including Time magazine’s “100 Most Influential People in the World” in 2010 and runner-up for Time‘s “Person of the Year” in 2000 for his work in Bush v. Gore — the year Boies was also named “Lawyer of the Year” by the National Law Journal.

I commend the NFL for listing his current, prolific legal credential working on the Prop 8 case in this announcement.

In contrast, I’m a little peeved that so many news outlets cut it out!  And those that included it did a simple cut-and-paste job with the paragraph from the NFL’s statement.  Admittedly, some of the news outlets had such short blurbs that you’d expect something to get cut, and further, that he is most well-known for the Bush v. Gore case and the context of the Oracle ruling may be more pertinent for interested readers.  But still, sometimes it is these little forms of censoring that annoy me (and are detrimental to progress for the gay community).

A sample of what I’m talking about:

Associated Press (picked up directly by ESPN): They had a very short blurb, only including Bush v. Gore.

New York Times: Their piece was a bit longer – long enough to include both Bush v. Gore and the Oracle victory, but apparently the same-sex marriage credential wasn’t good enough.

Pro Football Weekly: They didn’t mention any of the 3 credentials, so I’ll give them a pass.

National Football Post: They copied the first two credentials verbatim from the NFL release, including the same-sex marriage bit.  But then, in trying to cut down the qualifiers for the 3rd credential, they actually misapplied his “Lawyer of the Year” distinction as something that came from Time Magazine.

Pro Football Talk: We have a winner!  PFT listed all 3 credentials, but did so in their own words.  So, when they had an opportunity to cut out the same-sex marriage credential (and based on how they wrote, they really could have without interrupting the flow of the article), they left it in!

(2) In a way, Boies has “switched sides” in the way Olson is doing for the Prop 8 case.

I want to be careful here, because I, personally, do not agree that Olson “switched sides” by representing the gay plaintiffs in the Prop 8 case.  As he so eloquently wrote in an article titled, “The Conservative Case for Gay Marriage,” for Newsweek, “same-sex unions promote the values conservatives prize.”

However, Olson also recognized that “fellow conservatives have an almost knee-jerk hostility toward gay marriage,” and in that respect, I’m sure many conservatives think he has “switched sides.”

Similarly, one could argue that Boies has done the same.  Traditionally, for labor disputes, the conservatives/republicans side with the employer or management and liberals/democrats side with employees.  (If you need more evidence of this, just look to the current state of labor disputes ushered in by the republican governors in Wisconsin and Ohio.)

I am not sure if Boies will catch any flack for this from the liberal base, but I wanted to at least share the observation.

[EDIT:] I just read Peter King’s Monday Morning Quarterback for this week and he agrees with the “switching sides” analysis:

The plain-spoken and deep-thinking Boies is, in the words of one veteran sports executive, “about as liberal as George McGovern, and who’d have ever thought the NFL would hire someone like that?”

Boies worked for Al Gore in trying to get his close loss to George Bush in the 2000 election overturned. He won a case in California seeking to overturns the state’s ban on gay marriage. He’s a big supporter of Teach for America, which urges some of the smartest college graduates in the country to give their first two post-grad years to teaching in underprivileged school districts. He represented far, far left-wing filmmaker Michael Moore in a Treasury Department investigation into Moore’s travel to Cuba in the health-care-industry-ravaging movie Sicko.’ And he was of a team of lawyers representing Jamie McCourt in her high-profile divorce from Frank McCourt.

David Boies, NFL, NFLPA, Peter King, Prop 8