AIF Blog

Gay Marriage and the Court of Public Opinion

Sep 05, 2015
CATEGORY: Society, U.S.A.
It’s been the law of the land since June, but gay marriage still has its hurdles, most recently the events surrounding a Kentucky county clerk’s refusal to issue marriage licenses to same-sex couples.
During the 2015 Aspen Ideas Festival, the legal dream team that helped make same-sex marriage a reality gave their insiders’ account of its dramatic and fascinating journey, which for them started with the passage of California’s Proposition 8 in 2008 and ended in the US Supreme Court's ruling (just days before the Aspen session) that removed the final legal barriers to same-sex couples being able to wed. Throughout their discussion, David Boies and Ted Olson spoke of the importance of the court of public opinion.
Explaining why they decided to take on a federal constitutional challenge to Proposition 8, which had reversed the right of same-sex couples in California to marry, Olson said, “We felt it was important to do everything we could to persuade the American people that this was the right outcome, so if we won in court our clients would feel the reception and acceptance of the American people.”
Boies and Olson, who are on opposite ends of the political spectrum (they became friends while arguing opposing sides of Bush v. Gore in 2000), took to the media with articles and TV appearances, building the liberal and conservative cases for gay marriage, and “did everything we could to reach out to as many people as we could,” said Olson.
Although most people told them it was too soon for the country to embrace federally recognized gay marriage, their efforts appear to have paid off as the court of public opinion changed dramatically along the way. According to Olson, when they picked up the California case, there was a 17-point differential between Americans who opposed gay marriage and those who favored it. Six years later, when the Supreme Court decision came down, polls showed a dramatic reversal: 57 percent of Americans in favor and 37 percent opposed. Up to 80 percent of people under 30 don’t think same-sex marriage should be an issue.
Boies and Olson built their case with extensive research and an army of expert witnesses. They set out to demonstrate that depriving gay and lesbian couples the right to marry seriously harmed them and their children, and that there was no societal benefit to heterosexual marriage by preventing gays and lesbians from marrying. 
Their opponents didn’t have it easy, Boies said.
“This was the first case I’ve ever had where I couldn’t figure out the argument for the other side,” said Boies, who recounted how the opposing side’s lawyer, Chuck Cooper, could not back up his team’s argument that marriage equality would harm “traditional” marriage. Even the opposition’s leading expert (out of just two witnesses who ultimately appeared) testified that recognizing same-sex marriage would be true to American ideals, said Olson. 
Playing this issue out in the courts was the right way to do it, said Boies and Olson, who prevailed in overturning Proposition 8 and, along with the momentum generated from the Supreme Court striking down the Defense of Marriage Act on the same day in 2013, then took on cases in other states in an effort to get a nationwide ruling. It wasn’t enough, they said, that 36 states had legalized gay marriage (by the time the case reached the Supreme Court), because you couldn’t necessarily count on the remaining states following suit and making all citizens equal, and because a legislative right could be just as easily taken away as given. Yet it did show that the tide of public opinion had turned dramatically in just a few years.
“The great thing about a trial is you get people's attention; reporters come in, they've got to write about what you're putting on,” said Boies. “And you bring to the American people ideas in a way that's very hard to do in other context.”
He continued, “I think one of the reasons you saw this enormous outpouring of emotion from people gay and straight across the country was because they recognized we were doing something as a country that validated people. It spoke about relationships that lifted people up. And you do that by recognizing that the way we do this is through the Supreme Court, that everybody is equal.” 
Boies and Olson also addressed the issue of individuals claiming they were not bound by the US Supreme Court’s decision. This type of thing has happened throughout history, Olson noted, giving examples ranging from an Alabama governor’s opposition to federally ordered racial desegregation in 1957 to the 2016 GOP presidential candidates’ denouncements of the marriage equality ruling after it happened.
“I think it’s terribly unfortunate to hear those words from someone running for president,” said Olson, a Republican. “These sorts of things are, I think, diminishing the people who do them. The Supreme Court has said there is a constitutional right not to be discriminated against with respect to the fundamental right to marry and the equal protection clause. That is and will be the law for the entire United States. And I think that the sooner Republicans respect and recognize the rights of individuals and to remember if they say we are the party of Lincoln, we better behave like the party of Lincoln.”
In this video clip, moderator Neal Katyal, who was in the courtroom on June 26, describes how the Supreme Court’s decision came down and the accompanying reaction. 
To watch the entire session, click here.
By Catherine Lutz, Guest Blogger