Gay Marriage: What Does the Supreme Court Decision Mean?
Underwritten by Ernst & Young
Gay Marriage: What Does the Supreme Court Decision Mean?
Aspen Ideas Festival transcripts are created on a rush deadline by a contractor for the Aspen Institute, and the accuracy may vary. This text may be updated or revised in the future. Please be aware that the authoritative record of Aspen Institute programming is the video or audio.
THE ASPEN INSTITUTE
ASPEN IDEAS FESTIVAL 2013
MARRIAGE EQUALITY IN AMERICA AFTER THE SUPREME COURT
Belly Up, 450 S Galena St.,
Monday, July 1, 2013
LIST OF PARTICIPANTS
Current Host of Morning Edition on National
Chairman of the law firm Boies, Schiller & Flexner
* * * * *
MARRIAGE EQUALITY IN AMERICA AFTER THE SUPREME COURT
MR. INSKEEP: Ladies and gentlemen, welcome to our
discussion with David Boies about the recent Supreme Court decisions
involving marriage equality. I imagine that no one in this room had the
privilege of having a conversation with Thurgood Marshall or a member of
his team soon after the Brown versus Board of Education decision came
down. But we are in a similar position today. David Boies and his
colleagues are -- Ted Olson as well as those who supported him are the
Thurgood Marshall of the marriage equality movement and I think he
deserves a round of applause.(Applause)
MR. INSKEEP: There are many others in this room who helped
contribute to the victory and I want to give a special shout-out to Evan
Wolfson of marriage equality who is here --
MR. INSKEEP: -- and provided the intellectual framework for
this from the beginning. Thank you Evan for your work. What a great
conversation we're going to have. We are just going to -- and we have
so many questions to ask David. And the first one is how did you predict
this? About 3 years ago I interviewed you at Belly Up, you and Ted were
here, we had a great conversation.
MR. BOIES: Right.
MR. INSKEEP: And I asked you if you would go to the
Supreme Court and I think you predicted exactly what would happen.
Remind the audience what you said back then.
MR. BOIES: Well, I was asked whether if it would go to the
Supreme Court and if it did whether we would win and if we did win,
what would we win on, what grounds. And I said I didn't know whether
it would go to the Supreme Court. I was -- always had some dubiety as to
whether Supreme Court was prepared to take this case at this time. But I
said if it did go to the Supreme Court, I was confident that we were going
to win, and I thought we would win on standing grounds because it was
the easiest way for the court to decide it. They didn't have to reach the
broader constitutional questions.
We didn't know at that time that there was going to be a
companion DOMA case that allowed them to reach some of these same
constitutional questions without deciding marriage equality for all 50 states
immediately. And I think that the decision to some extent performs the role
that the all deliberate speed language in Brown against Board of
Education. The court held that segregation was wrong, indefensible under
the Constitution. But it didn't order the immediate cessation.It talked about using all deliberate speed to remedy the
situation which took over a decade obviously. Now, the purpose of that I
think was to allow the country to adapt to it, and particularly to allow
states that were quite committed to segregation to adapt to it. And I think
that to some extent taking this first step which clearly signals where the
court is, I don't think there's any doubt in anybody's mind -- whether you
are for or against marriage equality, I don't think there's any doubt in
anybody's mind what the decision will be when the court actually reaches
But proceeding this way gives places that are committed to
marriage inequality some time to adapt to it. So I thought at the time that
that was the most likely places that we would win and it turned out that
MR. INSKEEP: Do you think the justices had that precedent in
mind when they dismissed the case on standing ground?
MR. BOIES: I'm not sure. I don't know if they thought about it
in those terms. I think they probably did think about it because that was
indicated in their questions during the oral argument, I think they did think
about whether the country was ready for this. I think everybody
recognized how fast the country had moved in the last 4 or 5 years, really
in an unprecedented way for an issue of this volatility and importance. So
I think that they were focused on that, but I'm not sure how much they
thought about it explicitly, and how much they just sort of reacted to the
situation that this was a way that they could avoid reinstating Proposition
8, which I never thought they would do, and at the same time take one
step at a time, which from a constitutional jurisprudential standpoint is not
a bad way generally to do it.
I would have preferred to have it all done on Wednesday, but I
think that this was a tremendous step and one that because not only of the
California decision, but because of the DOMA decision with it, and the
language and principles of the DOMA decision I think makes quite clear
that the court when confronted with a case where it has to decide on
equal protection and due process grounds will decide for marriage equality.
MR. INSKEEP: The all deliberate speed formula of course was
criticized by some --
MR. BOIES: Yes.
MR. INSKEEP: -- who thought it was too pragmatic and
allowed for a lot of injustice to continue. You say you wish the court had
gone further. Is there a case that they should have and that fundamental
principles of equality and justice required a broader ruling?
MR. BOIES: I think there is. I think there is a good case to be
made that they were confronted with an issue of basic constitutional
guarantees. The Supreme Court has held 14 times in the last 100 years
that marriage is a fundamental right, and that states cannot burden that
fundamental right. They did so in Loving against Virginia in 1967 where
they held that the state of Virginia could not, consistent to the Constitution,
ban interracial marriages. They did in a contemporaneous time period
when they held that Wisconsin could not bar people from getting married
because they had abused their first marriage, they haven't paid child
support, they've abused their spouse.
And there was sort of a principle that says if you've failed the
first time, you don't get a second chance. And that was -- had a certain
rationale, you can't say that that doesn't meet a rationale basis test. But
the Supreme Court said although we can understand the policy of
Wisconsin, marriage is such a fundamental right, it's so deeply connected
to our conception of pursuit of happiness, to liberty, to the right of
association, that a state even for a valid, sensible reason, and even where
it doesn't raise any question about protected groups, people who don't
pay child support are not a protected class, and I think that even in that
case the Supreme Court said marriage is such a fundamental right that you
cannot, consistent with the Constitution, prevent it.
And there are a number of other cases like that. So given the
importance of marriage and given the fact that there are 37 states still that
do not have marriage equality, I think there is a very strong argument that the court should have reached that issue. On the other hand, the court
generally, not always, but generally tries to avoid reaching constitutional
questions when they don't have to. And here they had a very sound basis
on standing. I'm not particularly personally sympathetic to recent Supreme
Court cases on standing. I think that they are used too often to prevent
people from coming into court who really deserve to come into court and
to have grievances addressed. But if you read the Supreme Court
standing cases, they really had no choice but to kick this out on standing,
and if there was no standing, then they could not reach the marriage.
I mean, that's the constitutional jurisprudential argument. There
was no standing. That's basically true under the current Supreme Court
law. If there's no standing, you can't reach the merits. That's also clearly
true. So they had a reason in the basis for avoiding the broad question.
MR. INSKEEP: Now, standing of course is technical, but it's
very important for our audience to understand what went on here. Why
was it that the court held that there was no standing in the Perry case, but
there was standing in the Defense of Marriage Act case?
MR. BOIES: Well, a standing requires that somebody --
actually both parties have something at stake, that they have something
concrete at stake in the legation. The Supreme Court has held really since
the beginning that there has to be a genuine case and controversy. So
you've got to have two people that are actually opposed and who each
are representing concrete interests. Now in DOMA, there were people
with concrete interests. The United States government was going to have
to pay back $365,000 approximately. Ms. Windsor wanted the
$365,000. She had people on both sides and a concrete amount at
stake. So I think the standing in that case was easy. In our case, the court
held that the proponents of the proposition have no more standing than
any other citizen to try to come in and defend.
The people withstanding would have been the attorney
general, the governor, state officials, or if you could find them, people
who are actually going to suffer harm as a result of the court's decision.
And in this case, standing is really linked in many ways to the merits
because when we setout in our litigation, we said we were going to prove two things. We were going to prove one legal proposition, which
was that marriage is a fundamental right. But we were going to then
prove two factual propositions.
One was that depriving gay and lesbian citizens of the right to
marry seriously harmed them and seriously harmed the children that they
were raising. And second, we said we were going to prove that
depriving gay and lesbian citizens of the right to marry doesn't help
anybody, it doesn't advance any legitimate societal interests. And we
proved that at trial. And the Supreme Court was confronted with that.
And when you got up to the United States Supreme Court and the attorney
general and the governor had not appealed, so the only people
appealing were these proponents. But the proponents didn't have any
concrete entry. They weren't going to suffer, they might be unhappy. I
mean, they might not like gay and lesbian people, or they may not like gay
and lesbian people being able to marry. But that kind of emotional
political response has never been something that justified case or
controversy jurisdiction. And because they could not establish that
permitting marriage equality benefits anybody, they couldn't have
So the standing -- the standing is technical. But it's something
that's important to understand the significance of it in this particular context
because what it really says is that this is something that helps people,
doesn't hurt anybody. And the government can't do things that hurt
citizens without a strong legitimate governmental interest.
MR. INSKEEP: So the trial was extraordinarily dramatic. Tell
me about the moments in the trial that established that crucial proposition
that denying marriage to gays and lesbian would not help anyone and
would obviously hurt them. There was a very dramatic moment on the
stand with David Blankenhorn --
MR. BOIES: Yes.
MR. INSKEEP: -- who had been a fierce opponent of gay
marriage, and after your cross-examination actually changed his mind.
Tell us about that.MR. BOIES: Yes. David Blankenhorn was probably the
country's leading opponent of marriage equality. And he had an institute,
he had written books, he gave lectures, and he was their lead expert at
trial. They had a number of other experts that they had listed to be taking
their depositions. They hadn't held up very well from their standpoint and
they dropped them. But Blankenhorn was their key witness and a serious,
serious witness, a serious, you know, scholar, a serious writer, a serious
And on cross-examination, I setout to try to establish the two
factual principles we wanted to do. And I began by taking him through
all of the benefits of marriage, how it gives a couple greater security, a
greater sense of recognition, a greater tie to the community, a greater
sense of commitment. And then at the end of that, I said, isn't that going to
be true for gay and lesbian couples as well as heterosexual couples? And
he really had no answer to that, and he had to agree.
And I then asked him what were all the benefits of marriage to
the children who were being raised by married couples? You know, why
was being married -- why is being part of a married household better for
children than being raised by single parents? And he again explained in
some detail all the benefits that came to children from having their parents
marry. And I said, well, that must true for gay and lesbian -- the children of
gay and lesbian couples as well. And he agreed with that. And so we
had established the first principle, which is that depriving gay and lesbian
citizens of the right to marry seriously harmed them and harmed their
I then turned to the other one, the other question, which is "who
benefits?" And that was a lot harder with a lot of back and forth on that.
But in the final analysis, he agreed and conceded that he didn't have any
evidence that there was any harm that came to anybody from allowing
gay and lesbians to marry. And if you think about it, I mean that's so
obviously true that it probably should not have taken me as long as it did
to establish it in the cross-examination. In the beginning of the case when I
would sometimes speak to largely heterosexual audiences, and many of
which were in the beginning somewhat hostile to this litigation, you know, I would ask them, I would say, if you're married, would you raise your
hand. People would raise their hand. I would say, now, those of you
who are going to get divorced if gays and lesbians are able to marry, put
your hand down.
MR. BOIES: And then I would say, now, what I'd like to know
is which of you out there who are married, I'd like you to raise your hand if
when you were thinking about getting married you would have decided
not to marry your husband or wife if your gay or lesbian neighbor down
the street was able to get married? And nobody raised their hand. And
the fact is obvious. People don't get married because somebody else is or
is not going to get married. The truth of that was pretty obvious to me, and
eventually today with Blankenhorn. And about 18 months, 18 months, 2
years after the trial, Mr. Blankenhorn wrote an op-ed piece in New York
Times in which he recanted and he said he recognized he'd been wrong
and that his position was hurting lot of people without any need and
without any benefit.
MR. INSKEEP: Do you think he gets huge credit for that?
MR. BOIES: I do. I think he deserves enormous respect and
credit for being prepared to think about those issues and come back to it.
MR. INSKEEP: What you are doing is smoking out the real
reason for the law. So I gather the people who voted for Prop 8 in good
conscience did so because of moral disapproval of gays and lesbians?
MR. BOIES: I think moral disapproval or maybe religious
tenets. Remember the fight for Proposition 8 was largely financed and
staffed by various religious organizations that have as a tenet of their faith
that marriage should not be extended to gay and lesbian couples. And
they're obviously entitled to those beliefs, and they're entitled to a church,
the practices of those beliefs.
First Amendment of the Constitution guarantees the right of free
exercise of religion. On the other hand, the First Amendment also provides that there should be no establishment for religion, which the court has
consistently held, that means that the government cannot step in and put
their thumb on the scale and say, we are going to favor these religious
principles over alternative religious principles. They cannot make a
religion-based or moral-based decision in terms of discriminating against
citizens. That's one of the things that Justice Kennedy was so eloquent on
in the Windsor opinion, but in his prior opinions, in Lawrence against
Texas, which was 10 years earlier, and in the Romer against Colorado
case that was intervened. He's always been very eloquent on that ground
that in our country moral disapproval, religious tenets are not a basis for
the government to be discriminating at some of the citizens.
MR. INSKEEP: So given the fact that Justice Kennedy laid
down that constitutional principle, the proponents of Prop 8 were forced
to come up with other reasons that didn't involve moral disapproval and
religious disapproval to justify the law. And that lead to this sort of comic
reason that came up in the discussion with Justice Kagan yesterday --
MR. BOIES: Yes.
MR. INSKEEP: -- that had to do with responsible procreation.
MR. BOIES: Yes.
MR. INSKEEP: And I gave my best shot at the free marriage
version of that. But you've heard it a bunch more times. See if you can
describe the responsible procreation argument in three sentences or less.
MR. BOIES: Well, I mean, I can describe it in three sentences
or less because I think there are only about three sentences.
MR. BOIES: The sentences are that marriage promotes a
responsible procreation. And actually probably only two sentences. And
that's basically -- and there's a second sentence that they needed to prove,
but they never say because they can't prove it, but the second sentence is
that in somehow allowing gay and lesbian couples to marry will reduce responsible procreation, that is, you know, those of you who are
heterosexuals, obviously if you're thinking about having a child you first
want to stop and think well, are the gay and lesbian couples out there that
are married, because if they are, we don't want to have a child.
MR. BOIES: Or if we do want to have a child we want to be
sure that it's out of wedlock.
MR. BOIES: So it was not a very persuasive argument I think to
anybody. I mean even some of the justices on the Supreme Court who I
think were inclined to try to find a way to oppose marriage equality
couldn't accept that kind of argument.
MR. INSKEEP: I mean was it a made up reason or was it just
the only thing they had left?
MR. BOIES: Both.
MR. INSKEEP: Did you nail someone on the stand for it? Did
you sort of cross anyone?
MR. BOIES: No, because interestingly they didn't really put
people on the stand to try to defend this. And one of the interesting things
about their case is that we had a 3-week trial and each side had an
opportunity to put on whatever evidence they had. And they just didn't put
on any evidence about this. This was a sort of made up argument. Really
at the end, after every -- all of the other arguments had been sort of
disposed of from an evidentiary standpoint. But if you think about it, it
would have been pretty hard for somebody to understand and defend that
proposition under cross-examination.
MR. INSKEEP: Chuck Cooper tried to defend it at the Supreme
Court, but Elena Kagan didn't really let him get very far.MR. BOIES: He did not, and Chuck's a great lawyer and he
really did a really responsible job here in the case, but he was handed a
really tough hand to play.
MR. INSKEEP: Well, in addition to smoking out this sort of
flimsy retrospective reason --
MR. BOIES: Yeah.
MR. INSKEEP: -- one of your core achievements at the trial was
to put on the stand couples who wanted to get married and there were
some incredibly moving moments there. Why don't you tell us about that?
MR. BOIES: Well, the very first -- the first two witnesses that I
put on the stand were Jeff (phonetic) and Paul, two of our four plaintiffs.
And what I asked them basically was why they want to get married? And
the next two witnesses after that were Kris and Sandy, our other two
plaintiffs. And Ted Olson asked them essentially the same question. And
the answers were so eloquent and so moving that there was not a single
person in that courtroom that was not affected by it.
Ted had often said that the best argument he could give would
be simply to play the tape of those four plaintiffs because that is the
argument that really tells people how important this issue is, how
damaging and unfair this discrimination is, and how important it is to
establish constitutional rights for these people. And these four people that
had the courage to come in and be plaintiffs at a time when a lot of
people were opposed to this lawsuit, a lot of people even in the gay and
lesbian community, a lot of people who had spent a long time pursuing
gay and lesbian rights were opposed to this lawsuit because they thought
it went too far too fast, and for these four people to come in and be
prepared to fight this for the last 4-1/2 years, to take the kind of criticism
they got, both from the opponents of marriage equality, but also from some
people that are really basically aligned with us, it took enormous amount
of courage. And they are really -- they all got married last Friday. The
Ninth Circuit eliminated the stay 23 days early and they got married, both
of them.And I think that they deserve that happiness and everybody in
California who wants to get married deserve that opportunity. And these
four people brought it to them, both by their courage and by their
eloquence in terms of expressing to the court how important this issue is.
MR. INSKEEP: And of course you can't do justice to their
eloquence, but what did they say? What arguments did they make to the
MR. BOIES: I can't, I really can't do justice to it and I certainly
can't do justice to it and not get too emotional.
MR. INSKEEP: What about their criticism? You know, people
said it's too soon, even supporters said don't do it.
MR. BOIES: Yeah.
MR. INSKEEP: And the polls were different than they are now
too and things changed tremendously in the past 4 years. Now they have
majority support, then it was less than 50 percent. What made you and
Ted decide to go ahead despite the caution from the supporters of
MR. BOIES: I think there were three, maybe four reasons. It
was not that we took that opposition lightly. I mean, these were people
who -- unlike Ted and myself, who really had not played any significant
role in the advancement of gay and lesbian rights prior to this lawsuit.
These were people who had spent years, decades, maybe their entire life
fighting and making enormous progress in this area. So we took those
views very seriously. On the other hand I think there were several reasons
why we decided it was the right thing to do. First we had clients who very
much wanted to get married. And it's very hard to say to a client this is not
your time. Yes, it's unjust, yes, it's unconstitutional, but we can't take the
risk now of trying to vindicate your rights. You've got to give your rights up
and maybe another generation will have them.
And I think that the idea that it's too soon to seek justice is an
idea that is very hard for a lawyer to explain to a client. And I think that we all thought that these people deserved representation and they were
people whose constitutional rights were being trampled on and we just
couldn't find the ability to say to them we're not going to represent you,
take your turn.
Second thing was that somebody was going to bring this
lawsuit. The people who said this is too early to bring the lawsuit didn't
control the docket. There were already people who were talking about
bringing this lawsuit, some lawsuits had already been brought, not gone
very far. And both Ted and I thought that if we were going to bring this
lawsuit it was important to bring it and win it. And it was important to
bring it with the resources that you needed to win it and to bring it with the
experience that Ted and I had in litigating important cases.
And each of us through the resources of our firms, and there are
considerable firms behind this, and we did things in terms of both
preparing for cross-examination, taking deposition, doing research,
bringing in world-class experts from around the world to testify. And it
would have been very hard for any of the other potential -- the counsel in
any other potential cases to do. And so we thought that even if we had
been prepared to wait, waiting really was not an option because this
case was going to be brought by somebody and it was going to be
brought by somebody who thought it ought to be brought by people who
had the experience and the capability and the resources to do it right.
The third thing was that we thought -- and I think we were
proven right to some extent -- we thought that our bringing the lawsuit
would help change the culture. I mean, this is an issue that I really don't
think there are two sides to this question. I mean, one of the reasons I'm a
pretty good lawyer is I can figure out both sides of almost every case I'm
involved in, and by understanding the people's position on the other side,
I'm in a much better position to confront it.
And so I pride myself on being able to figure out what the
good arguments are on the other side. There aren't any good arguments
on the other side of this case. I mean, the other side doesn't have a
judicial frame, or it doesn't have a factual frame, it's got a bumper sticker
that says marriage is between a man and a woman. I mean, that's the question, that's not the answer. So I thought if we could get people to
focus on this issue, think about this issue, we could change people's minds.
And I thought that Ted and I would have a unique ability to do that
because of our kind of odd-couple status. I mean, at first nobody
expected us to be able to agree on anything and I think it is probably true
that we don't agree on a whole lot in the political framework, probably
more than people think, but still there are lots of areas that we disagree
But this was an area that we both agreed on. And the media,
the public was interested in this kind of odd-couple combination. So they
would listen and they would write about the case, maybe more so than
they would have otherwise. And the more people talked about it, as the
more people wrote about it, the more people understood that this was an
issue that there weren't two sides to. And I think that helped change the
culture. I think the record we made at trial helped change the culture. I
think anybody who looked at that trial and looked at that trial record and
saw the wealth of evidence that we put in and the total absence of
evidence that the other side had to support its position, I think couldn't
help, but be effective. And then there was sort of a fourth reason, and that
is that we thought we'd win.
MR. INSKEEP: Did you ever worry that you wouldn't? After
all, you had a terrible setback.
MR. BOIES: Sure. Sure.
MR. INSKEEP: Imagine losing this case and being
remembered in history as the people who went too fast.
MR. BOIES: Well, I don't think that's -- I don't think that would
have been -- I wouldn't have been unhappy to be remembered by -- as
somebody who pushed for justice too early.
(Applause)MR. BOIES: I lost Bush v. Gore and I'm still proud of that. Oh,
yeah. Nobody is perfect.
MR. INSKEEP: You say that there are, you know, two sides of
the case, but 4 years ago even the President of the United States, President
Obama, like lots of people who thought of themselves as good liberals
were against marriage equality. We now know from the sociological
evidence that people like President Obama changed their mind often
because they were persuaded by a -- either knowing a gay friend, or by a
woman, often their wives or daughters. And that's what happened to
President Obama with his daughters and to President Clinton who
recanted his support to DOMA --
MR. BOIES: Yes.
MR. INSKEEP: -- because of Chelsea Clinton. I think -- do you
think that your litigation and the fact that you were testing these arguments
helped contribute to people changing their minds as well?
MR. BOIES: I think it did. I think the most important thing that
has caused people to change their minds are that generations much
younger than mine have grown up knowing a lot of people who they
knew were gay or lesbian. We all grew up knowing people who were
gay and lesbian, but we didn't knew they were gay and lesbian for the
most part because in a era of criminalization and vicious discrimination,
including physical threats and harassment, people wouldn't admit their
sexual orientation or most of them would not. As a result, people didn't
grow up knowing people who were different.
And when you don't know somebody, it doesn't make any
difference whether it's race, religion, national origin, sexual orientation, if
you don't know people that are different than you, it's easy to discriminate
against them. It's easy to somehow get the sense that they're not like you.
But when you know them you can't have that sense, you can't have that
feeling. And my children, my grandchildren have grown up knowing lots
of people with a different sexual orientation than they have and they know they're just the same. And knowing that makes it just impossible to
discriminate against them.
And I think that when you look at the demographics and you
see that 80 percent of everybody 30 and under, and it doesn't make any
difference, north, south, east, west, 80 percent of people 30 and under
support marriage equality. And that's because they've grown up in a
different world. They've grown up in a world that sees people for what
they are as opposed for the kind of stereotypes that most of the people in
my generation grew up with.
MR. INSKEEP: So as early as 4 years ago it was respectable
for liberals like President Obama to say, well, maintaining the traditional
definition of marriage is fine. Now, everyone knows that it's a form of
animus and bigotry to do that. Is that judges reading the polls or is it some
more fundamental shift in constitutional values that take place when
suddenly everyone knows what wasn't obvious 4 years ago?
MR. BOIES: I think it's much more than people just reading the
polls, and I think Justice Kennedy put it well in Lawrence and he repeats it
in similar words in the Windsor case, in which he says, you know, we can
be blind to the harm that we are causing, we can be blind to the
discrimination that we are engaging in. And as time goes on, we can see
the nature of our discrimination. We can see the harm that it causes. We
can see the damage it does and we can see the lack of justification for it.
And I think that what has happened is that people have now
come to know that gay and lesbian citizens are just citizens. They are our
brothers, our sisters, our doctors, our lawyers, our teachers, our aunts or
uncles, parents. And like anybody else they deserve the same rights that
everybody else has. And our whole history, you know, as a country has
been to expand the arch of equality. In the beginning when we talked
about "We, the people of United States," you know, on the National
Constitutional Center, "We, the people," and in the Declaration of
Independence we talked about all people being equal with certain
inalienable rights, we were talking about basically white male property
owners.And what has happened is the "We" in "We, the people," has
constantly expanded to include people of diverse gender, of diverse race,
and diverse sexual orientation. And that process has not been a process
of America sort of waking up and saying we're in favor of equality. I
really believe equality is part of our culture. It's baked into our American
soul. But what it comes from is recognizing that treating people who are
different than you this way is not equal, is not right. And it's the recognition
that whether you own property or not, whether you're white or not,
whether you're male or not, whether you are a particular sexual
orientation or not, is not what defines you. What defines you is your
humanity. And the Constitution, one of the great parts of the Constitution is
that doesn't make any of those distinctions. You don't find any of those
distinctions in the Constitution at least after the Fourteenth Amendment.
MR. INSKEEP: The expansion of "We, the people" for AfricanAmericans and for women and for gays and lesbians took place not only
because of judicial victories, but because of marches in the streets, civil
MR. BOIES: Yes.
MR. INSKEEP: -- activism and the efforts of people like Evan
MR. BOIES: Yes.
MR. INSKEEP: -- and his colleagues. Did you draw on their
decade-long efforts in --
MR. BOIES: Oh, absolutely.
MR. INSKEEP: -- winning this victory?
MR. BOIES: Absolutely, and you're, you know, a 100 percent
right. I mean, Ted and I, you know, are like the people who, you know,
get the Olympic torch to carry into the stadium after everybody else has
carried it for thousands of miles in much more rigorous conditions. Our
real task is not to drop it. And that's an important task.(Laughter)
MR. BOIES: But it's not anything like what the people who
struggled, you know, in Stonewall and all the other times to begin getting
people to recognize them, you know, as equal human beings. And the
people like Gavin Newsom, you know, who pushed this forward, you
know, at a time when it was not nearly as easy as it is today deserve an
enormous amount of credit.
MR. INSKEEP: You mentioned Justice Kennedy's opinion on
Windsor. It struck me as incredibly heartfelt. This was not a legalistic
MR. BOIES: No.
MR. INSKEEP: -- when he talked about laws that demean the
dignity of --
MR. BOIES: Yes.
MR. INSKEEP: -- fellow citizens and how understandings
change and people have come to understand in time that discrimination is
unacceptable, he seemed to be speaking from the heart.
MR. BOIES: Yes.
MR. INSKEEP: What did you think?
MR. BOIES: No, I think that's right. I think this is -- Justice
Kennedy is a person of great compassion. And he -- as I say in Lawrence,
another (inaudible) decision that he authored, you know, establishing the
unconstitutionalization -- unconstitutionality of the criminalization of
homosexual conduct was also very, very eloquently and heartfeltly wrote.
He really talked about the pain, the dignity, the liberty interest, the interest
of people in having that level of equality and the right to pursue happiness in their own ways. And I think he is a legal scholar. He understands the
constitutional principles, but as a human being I think he feels the damage
and the danger of this discrimination.
MR. INSKEEP: You know, it's a sign of how much you did
help to change the culture that as Justice Kagan noted yesterday, even
Justice Scalia's dissent --
MR. BOIES: Yes.
MR. INSKEEP: -- did not talk of moral disapproval or didn't
have the same tone that his dissent in 2003 had where he talked about
the immorality of --
MR. BOIES: Yes.
MR. INSKEEP: -- homosexuals. He said, he focused on the
rational reasons of preserving administrative regularity and so on. But do
you think that was a sign of how things have changed?
MR. BOIES: I do, I absolutely do. I think that if you compare
Justice Scalia's dissent in Lawrence, with his dissent in Windsor, the first
one has elements of exactly what you described. The second one is a
much more legalistic argument. I think they're both wrong. But I think it is
very important that we have now moved, even the opponents of marriage
equality have moved beyond attacks on gays and lesbians to debate it in
terms of constitutional doctrine. I think that's a very important step.
MR. INSKEEP: Yes. Justice Scalia did ask Ted also an
important question at the oral argument. He said since -- what was the
date at which it became unconstitutional to ban gay marriage and Ted
gave an extremely short response. He said when did it become
unconstitutional to ban interracial marriage? But what did you make of
that exchange? He was really asking something serious, how a court is
supposed to know exactly when the changes occurred.
MR. BOIES: And the change occurs when the court says it
occurs. I mean there's a sense in which bans on interracial marriage became unconstitutional in 1967, when the Supreme Court decided
Loving against Virginia. Now, that doesn't quite fit neatly into the idea that
the Constitution is one unchanging document and the court is simply trying
to find the intent of the original framers. But it's the reality of what the court
has done and this is true for liberals and conservatives alike, is they bring
to an interpretation of the Constitution their own background, their own
views, and the views of the society of which they are a part. That's
inevitable. Judges always do that, and it makes no sense to pretend
otherwise. And I think pretending otherwise can lead you down some
very dangerous paths because it gets you, it's an invitation to ignore the
realities of the society in which you live.
MR. INSKEEP: But of course Justice Scalia counters, well, the
judges are supposed to enforce the law and not make it and by reflecting
society they're doing what legislators are supposed to do, not what judges
MR. BOIES: Well, I'm not sure he would have said that in
connection with his joining in the opinion that overruled the Voting Rights
Act the day before where they clearly made law inconsistent with prior
Supreme Court precedents. So I think that all judges honestly recognize
that they make law. I think if they didn't make law, they wouldn't have a
need for legislative facts. So I think that it's not a question of whether you
make law, it's whether you make law within the interstices of either
legislation or constitutional principles and whether you are faithful to the
intent of those legislative or constitutional principles.
MR. INSKEEP: What will this precedent say about the court's
willingness to keep pace with future social change? So the court waited
13 years between Brown versus Board of Education and Loving versus
Virginia to strike down interracial marriage. And that was because Justice
Felix Frankfurter thought that it would be bad for the court's institutional
legitimacy, there'd be a backlash, and it would be harder to enforce the
desegregation rules. As a result for 13 years people who loved each
other who were black and white couldn't get married. You've now set a
different precedent, the court shouldn't wait. Do you think that will be
important when the court confronts future claims of expansion of rights?MR. BOIES: Well, I think it will. I think for example when the
court decided Loving against Virginia, there were 16 states that barred
interracial marriage. Two-thirds of the country opposed interracial
marriage at that point in time. And yet there was no backlash. Once you
establish the right to equality, once you establish that you have a right to
marry and it's just a question of are you going to exclude certain people
from that right, I don't think you're going to find a backlash. When you
sometimes find a backlash is when you are establishing a new right. And I
think that -- and you sometimes find a backlash when you are terribly
fearful of the results, how the results are going to harm you.
I mean, in the south a lot of people in the 1950s believed that
having integration -- integrated schools was going to seriously threaten
and harm their children. That was wrong, it was misguided, but they
sincerely believed it. That's the kind of thing that you can have a backlash
on. I mean, nobody thinks that allowing gay and lesbian citizens' right to
marry is going to harm them. They may disapprove of it, but they don't
think it's going to harm them. Backlashes come from establishing new
rights, or come from threatening harm, where you are simply extending an
existing right to another group of people and it's not going to harm
anybody, I don't think you will see backlashes.
MR. INSKEEP: Interesting. And here the only alleged harm is
the one that you sort of demolished at the trial. The claim was it would
harm children and you established first that gay couples can already
adopt and also that in fact it would help children. And Justice Kennedy
picked on that.
MR. BOIES: Yes.
MR. INSKEEP: And that was a very moving moment where he
sort of picked up on the cross-examination.
MR. BOIES: Yes, I know. I thought when he asked one of the
lawyers on the other side what about the children that are being raised by
gay and lesbian couples, don't they have rights? Who is speaking for
them? And I think he goes back to that in his opinion as well. And I think
that that really emphasized for him the damage that this discrimination was doing to people who were entirely innocent, just children who were --
happened to be being raised by gay and lesbian couples who loved them
just as much as anybody else.
That's the real crux of what's going on here. And it's why I think
we made such progress is because more and more people understand
that this is not an issue of people being different. It's about people being
the same. You may be of a different race, you may have different coloredeyes, you may be of a different religion, you may be of a different national
origin, you may be a different sexual orientation. But you fall in love, you
raise children, you love those children. Those children love you, they
depend on you, and those commonalities, those things that make us all
alike are so much more important that will make us different.
MR. INSKEEP: Well, I -- we're going to take questions. But first
I think that deserves --
MR. INSKEEP: Beautiful. I'm going to take questions in a
moment. My last question before I invite the audience to ask some is to
ask you to predict the future. You were really good at it 3 years ago. So
now marriage equality advocates are armed with this Windsor decision
which says that moral disapproval is not a permissible basis.
MR. BOIES: Right.
MR. INSKEEP: There has to be some other grounds for denying
marriage equality. How long will it take, how is it going to play out in the
lower courts, and when, if ever, do you expect the Supreme Court to
recognize the national right to marriage equality?
MR. BOIES: I believe the Supreme Court will recognize a
national right to marriage equality the first time that issue is presented to it
and it accepts that issue, that is I think that it's easy to predict how this issue
will ultimately be decided when it's decided. What's hard to predict is
when it will be decided because even if we bring cases and they get
decided by courts of appeals, the Supreme Court is discretionary review. They don't have to take the case. And in fact two or three of the judges of
the Supreme Court at the time of the oral argument sort of suggested that
they wished they had not taken this particular case when they did.
So I think that it's harder to predict exactly when you have a
national decision because you don't know when that issue is going to be
squarely and unavoidably presented for decision to the Supreme Court. I
think what you will see is you will see progress on two or three fronts.
You're going to see progress on the legislative front. You're going to see
more and more states, just as it's happened over the last 4 years, adopt
marriage equality either legislatively or by referendum. You're not going to
get 50 states that way. You didn't get 50 states for the interracial
marriage that way, but I think you'll get a lot of states.
And then there will be the holdouts and in those cases we're
going to have to do what we've always had to do in civil rights cases
which is to apply a national law to states or regions that are resisting it
and the only way to do that is through the courts. And so there will be
additional court cases and those cases will then begin to wind their way
through the system. And there will be trials and there will be appeals and
then there will be appellate court decisions.
And then the question will be is the Supreme Court going to
exercise its discretion to review those decisions or are they going to wait?
And a lot of question is like the question 3 years ago which was will the
Supreme Court take this case? I can't predict that. But what I can predict
is that when the case is before the Supreme Court, we're going to win and
we're going to win this time on the merits.
MR. INSKEEP: Good. Well, I'll hold you to that when we
MR. INSKEEP: Ladies and gentlemen, we have some time for
your questions. It's Jane Harman. If there's a mic, that would be great.
MS. HARMAN: Thank you very much. Of the thousands of votes I made during 17 years in Congress, the one I'm proudest of was
being one of 67 people to oppose DOMA.
MS. HARMAN: And I want set up this question to you, David,
this way. In 1994 was my first reelection to Congress. And on election
night I was down 250 votes and my opponent declared victory and flew
off to Washington. But there were thousands of uncounted absentee
ballots and obviously I needed a legal representation to make certain that
all those absentee ballots were counted properly. Who flew out to
California, but David Boies, sat there as all these remaining ballots were
counted over a 2-week period, and I won by 811 votes.
MS. HARMAN: And my question to you is, David, you put
your paying clients aside, used the resources of your firm to do pro bono
work like the work in my case and the work in this amazing set of Supreme
Court cases. Could you explain why you do that? And do you think that
more lawyers would have many more fulfilled lives and our society would
benefit if they would do this?
MR. BOIES: I do. I mean, I think that almost everybody who
goes to law school, goes to law school because they believe in the justice
system. That's not the only reason you go to law school. You also go to
law school because you think law is going to be a remunerative
profession, you think it's going to be a profession that you will earn respect
in. It's a profession that will be intellectually interesting.
So there are a lot of reasons you go to law school, but an
important reason for everybody that goes to law school, or almost
everybody, is that you're interested in the justice system. Then you get out
of law school and you've got to raise a family, and you've got to make
mortgage payments, you've got to buy a car, and you've got to save for
your children's education. And you can lose sight of what brought you to
law in the first place.And I think that -- I think people -- I think lawyers would be
happier and they'd have more satisfaction if they were able to remember
why they went to law school and they spent more of time really pursuing
the justice system. And the great thing about our profession, it's not great
necessarily for all clients, but the great thing about the profession for
lawyers is that we charge an awful lot of money for what we do and we
can afford to take time to pursue justice.
In our private practice, we are almost inevitably forced to in
effect ask potential clients how much justice can you afford. In the Magna
Carta, you know, one of the first promises was "to no man will we sell
justice." Well, we sell justice all the time. And we do it because we are
always asking potential clients how much justice can you afford. We do it
indirectly. We say this is going to be very expensive. How much
resources do you have? How important this is to you?
What we're really saying to clients in those cases, you know,
how much justice can you afford? And we need to do less of that and we
particularly need to do less of that for our most vulnerable citizens who
can't afford the kind of representation that Ted or I, you know, routinely
offer our paying clients. And I think that that's better for the profession in
the long run and I think it's better for the lawyer.
I tell you we had -- I don't think that we -- either Ted or I have
ever had a case that we had such enthusiastic support from our
associates. And we worked together as one team. And those of you who
are involved in law firms know how hard it is to get two law firms that are
very egotistically institutions for the large part to work together as a really
seamless team. We did that and we did that maybe in part because of
Ted and my friendship and the like, but we did it mostly because
everybody was so committed to this cause that the cause took first place
over peoples' ego. And when you do that, you come out of that case
with a sense of satisfaction, win or lose.
MR. INSKEEP: Yes, ma'am.
SPEAKER: I'd like to ask a question on behalf of another group
of people seeking justice. If moral discrimination is not a legitimate basis to ban gay marriage, what applicability is there, if any, to this case to
those women seeking justice and seeking rights in reproductive choices?
MR. BOIES: I think -- I mean my personal judgment is it's the
same issue. My personal judgment is that the society doesn't have the right
to tell women what they do with their bodies any more than it has a right
to tell a couple, heterosexual or homosexual, what they do with their lives
and their bodies. Those are individual choices. I think that the issues are
more complicated from a political standpoint because you don't have the
kind of demographic wave coming with respect to those issues. And so I
think those issues are going to be with us longer, but I think it is the still the
case that the fundamental right of liberty and right of freedom of choice
that we all take for granted when we're dealing with our bodies apply to
women as well.
SPEAKER: Your next big fight?
MR. INSKEEP: Yes ma'am.
SPEAKER: First of all, I just want to say this was the most
unforgettable extraordinary conversation. Thank you so, so much.
MR. BOIES: Thank you.
SPEAKER: I will remember it forever, I will remember it forever
that I got to be here for this.
MR. BOIES: Yeah.
SPEAKER: Thank you. So what I am not clear about, and we
were talking about this earlier, is whether these cases actually mean that
now gays and lesbians become a protected class completely in the sense
of employment discrimination and other ways in which in for instance -- in
spheres outside of government benefits for instance there are still significant
inequality. So could you speak to that? Does there need to be another
case that specifically addresses employment discrimination before that becomes law? Help us understand those differences.
MR. BOIES: Yes, that's a really good question. The district
court held that based on prior discrimination that sexual orientation was a
protected class and heightened scrutiny applied to any adverse regulation
or discrimination and that was also accepted by the court of appeals.
And I'd say Supreme Court doesn't reach that issue directly. On the other
hand, the various statements in the opinions about discrimination make out
the factual predicates for heightened scrutiny. I think that you can't look at
the history of our discrimination against gay and lesbian citizens and not
find that they are protected class, and if they are a protected class, they
deserve heightened scrutiny in terms of the judicial review of regulations
that discriminate against them.
When I was in high school, Dwight Eisenhower, who is not
necessarily widely believed to be a particularly bigoted person, issued a
executive order prohibiting the federal government from employing any
gay or lesbian citizen in any capacity. You couldn't be a lawyer, you
couldn't be a court typist, you couldn't be a driver, you couldn't be a
postal worker if the government knew that you were gay. Very few groups
have ever been subjected to that kind of discrimination. Until 10 years
ago it was criminalization. Again very few groups have ever been subject
to that kind of discrimination. So if there's ever a group that I think is
entitled to heightened scrutiny, it is gay and lesbian citizens.
I think that will happen, but I think that in some senses it may not
need to happen because I think the thrust of the Windsor decision,
particularly in the context of Windsor and Romer and Lawrence, really say
that there is no rational basis for discrimination, and if there's a no
rationale basis you don't even need heightened scrutiny.
MR. INSKEEP: David, this has indeed been an extraordinary
conversation. Thank you for that and thank you for your work on behalf of
MR. BOIES: Thank you very much.
* * * * *
Watch and Listen: U.S.A.
How do we “read” a photograph? What is the relationship between art production, culture, and justice? And how can... See more
An opportunity to hear Axios Founder and Executive Editor Mike Allen discuss journalism and politics of the day with... See more
The president of the Texas Civil Rights Project sits down with the Washington Post's Jonathan Capehart to discuss human... See more
Join Damian Woetzel, incoming president of the Juilliard School, for an interactive breakfast interview led by Eric Liu... See more
Colin Kaepernick. Charlottesville. Identity politics. Travel ban. Black Lives Matter. Build That Wall. Trump. A decade... See more