MARRIAGE EQUALITY IN AMERICA AFTER THE SUPREME COURT RULING. STEVE INSKEEP Current Host of Morning Edition on National Public Radio

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1 THE ASPEN INSTITUTE ASPEN IDEAS FESTIVAL 2013 MARRIAGE EQUALITY IN AMERICA AFTER THE SUPREME COURT RULING Belly Up, 450 S Galena St., Aspen, Colorado Monday, July 1, 2013 LIST OF PARTICIPANTS STEVE INSKEEP Current Host of Morning Edition on National Public Radio DAVID BOIES Chairman of the law firm Boies, Schiller & Flexner * * * * * MARRIAGE EQUALITY IN AMERICA AFTER THE SUPREME COURT RULING 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.

2 (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 -- (Applause) 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.

3 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 the merits. 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 was right. 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

4 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

5 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

6 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 standing. 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.

7 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 author. 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 children. 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,

8 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. (Laughter) 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

9 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. (Laughter) 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

10 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. (Laughter) MR. BOIES: Or if we do want to have a child we want to be sure that it's out of wedlock. (Laughter) 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.

11 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.

12 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 court? 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 marriage equality? 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

13 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

14 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 on. 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. (Laughter) 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)

15 MR. BOIES: I lost Bush v. Gore and I'm still proud of that. Oh, yeah. Nobody is perfect. (Laughter) 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

16 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.

17 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 African- Americans and for women and for gays and lesbians took place not only because of judicial victories, but because of marches in the streets, civil rights -- MR. BOIES: Yes. Wolfson -- 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.

18 (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. (Applause) MR. INSKEEP: You mentioned Justice Kennedy's opinion on Windsor. It struck me as incredibly heartfelt. This was not a legalistic opinion -- 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

19 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

20 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 do. 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?

21 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

22 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 -- (Applause) 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.

23 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 meet again. (Applause) 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

24 votes I made during 17 years in Congress, the one I'm proudest of was being one of 67 people to oppose DOMA. (Applause) 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. (Applause) 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.

25 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

26 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. (Applause) 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

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