by Bill Moyers
David Boies was no surprise. Long a champion of progressive causes, he had been the Justice Department’s special counsel in its successful antitrust suit against Microsoft. But Ted Olson? An icon of the right, an influential legal advisor in the Reagan administration, he had triumphed in 2000 when the conservative majority on the Supreme Court decided the contested election for George W. Bush, who later asked Olson to be his solicitor general. Now he was breaking with his own crowd to champion a cause they abhorred.
On Election Day in 2008, as Barack Obama was collecting California’s fifty-five electoral votes on his way to the White House, voters in that state, by a margin of 52 to 48 percent, approved Proposition 8, which ordered the state constitution to define marriage as the union between one man and one woman, effectively prohibiting gay and lesbian marriage. A year later the California Supreme Court upheld the amendment’s constitutionality. Olson and Boies then filed a legal challenge on behalf of two same-sex couples—two men, two women—who had been denied the right to marry.
Thanks to activists who reenacted the hearings online, I could follow the
TED OLSON
arguments as if they were a courtroom drama on TV, and I found them so fascinating I asked Olson and Boies to join me on the Journal even before the federal judge had handed down a ruling. That ruling came down on August 4, 2010, when U.S. District Judge Vaughn Walker agreed with Boies and Olson and overturned Proposition 8. Pending appeal, his decision remains on hold, and it seems clear that Boies and Olson will eventually be back before the Supreme Court of the United States—an ideological odd couple, allies instead of foes.
—Bill Moyers
Many people in this partisan and polarized country have been hoping to see conservatives and liberals unite on at least one principle that they could agree upon. But just about everyone I have talked to was surprised to see the two of you show up in the same court arguing for gay marriage. What do you have in common on this?
BOIES: I think one of the things we have in common on this issue is respect for the rule of law, respect for civil rights, respect for the Constitution. This is not a liberal or conservative issue. It’s not a Republican or Democratic issue. Conservatives and liberals alike need the Constitution. Conservatives and liberals alike want to keep the government out of regulating our personal conduct, want to keep the government out of the bedroom.
Both conservatives and liberals have an interest in seeing the rule of law applied to everybody. So although sometimes people say that they’re surprised to see the two of us together, I don’t really think they ought to be, because I think this is something that both conservatives and liberals ought to unite behind.
But everyone knows conservatives in this country have been clear that they are opposed to gay marriage. And the strong base of the Republican Party, the religious right, is adamant about this. Your own friend, your good friend, former judge Robert Bork, has called same-sex marriage a judicial sin. He said he can’t even bear to talk to you about this case. Now, if he should say, “Come over and let’s have a drink and talk about it,” what would you do to justify the position you have taken?
OLSON: I think the more people hear what David and I have to say, the more people will understand. That’s one of the wonderful things about the fact that we have come together, because people will ask the question that you’ve just asked: “Why are you doing this? What is your explanation?” It gives us a chance to explain the damage that’s being done by discrimination, and the great burden that would be lifted if we finally stop.
But might not Judge Bork counter that you’ve joined with this liberal elitist here to find in the Constitution another “new” right that really isn’t there?
OLSON: We’re not advocating any recognition of a new right. The constitutional right to marry has been recognized by the Supreme Court over and over again. We’re talking about whether two individuals should be treated equally, under the equal protection clause of the Constitution, the same thing that the Supreme Court did in 1967, when it recognized the constitutional rights of people of different races to marry.
In 1967, seventeen states prohibited persons of a different race from marrying one another. The Supreme Court didn’t create a new right—the right was the right to marry. The Supreme Court unanimously said discrimination on the basis of race in that instance was unconstitutional.
The voters in California spoke very clearly, 52 to 48 percent. The referendum said, “Only marriage between a man and a woman is valid or recognized in California.” And you’re telling the majority of those voters they’re wrong?
BOIES: If you didn’t tell the majority of the voters that, under the Constitution, they were wrong sometimes, you wouldn’t need a constitution. The whole point of the Bill of Rights and the Fourteenth Amendment is to say, “This is a democracy. But it’s also a democracy in which we protect minority rights.” The whole point of a constitution is to say there are certain things that a majority cannot do, whether it’s 52 percent or 62 percent or 72 percent or 82 percent of the people.
They can’t say, for example, that blacks and whites can’t go to school together—even though most of the people might have thought that. They can’t say that women aren’t allowed to vote, or aren’t allowed to work, or earn equal rights or equal wages—even though a majority of people might vote that way in some places.
There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for. What Ted said is very important. Nobody’s asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court.
What your opponents are saying is that you’re extending that fundamental right to same-sex partners, and there’s nothing in the Constitution that refers to sexual orientation of any kind.
BOIES: What the Constitution says is that every citizen gets equal protection of the law. It doesn’t just say heterosexuals.
So this is the Fourteenth Amendment you’re invoking.
BOIES: The Fourteenth Amendment. And remember, the Fourteenth Amendment was passed just after we got rid of slavery, which prohibited slaves from getting married. And one of the things that happened when slavery was abolished was that large numbers of African Americans rushed to get married, because they viewed this as one of the most important human relationships. And they viewed the recognition, the sanctioning of that relationship, as critical to their ability to live together as a family.
The same thing is happening with gays and lesbians in our society today. We’re saying to these people, “You are somehow less than human. We’re not going to give you all of humanity’s rights.” Because remember, if we recognize them as human, if we recognize them as full citizens, the Constitution guarantees that they have equal protection of the laws. They have the same rights as any heterosexual.
You’re both comfortable invalidating seven million votes in California?
OLSON: Well, this happens when the voters decide to violate someone’s constitutional rights. We have a constitution and we have an independent judiciary for the very protection of minorities. Majorities don’t need to seek protection from the courts. The original Constitution didn’t have the Bill of Rights attached to it. And the framers of our Constitution had a big debate and people said, “Well, we’re not going to ratify that constitution unless you attach a Bill of Rights, which protects individual liberty, individual freedom, the right to speak, the right to assemble,” and those sorts of things.
Over our history, voters get passionate about certain things, and they may not like certain minorities. Minorities are disfavored. Blacks have been denied the right to vote. California prohibited the Chinese from having any kind of business in California or getting married. Those kind of votes are not acceptable if they violate fundamental constitutional rights.
You’re going up not only against the voters of California, the majority, y
ou’re going up against the Congress of the United States. In the 1990s, Congress passed the Defense of Marriage Act, which actually defined marriage as “a legal union between one man and one woman,” and even declared that states need not recognize the same-sex marriages of another state. President Bill Clinton signed this.
BOIES: But remember, that happens every time the Supreme Court declares a law unconstitutional. In a case that Ted argued, the Supreme Court just declared certain restrictions on the ability of corporations to participate in political contests unconstitutional [Citizens United v. FEC]. They were overruling the will of the democratically elected Congress of the United States. The power to hold laws unconstitutional was given to an independent judiciary for the specific purpose of protecting minority rights against majority abuses.
OLSON: Fifty years ago the Congress and the President of the United States made it illegal for someone who is gay or lesbian to have a job working for the federal government. Many states made it a crime for a homosexual to be in a bar and have a drink. We all remember the ’50s, when civil rights were taken away from people because they were suspected of being a member of a “subversive” organization.
And we frequently go to the courts and, Bill, it often happens that the measures that are passed almost unanimously in Congress, because Congress gets carried away, are overturned by the Supreme Court. And you go back to members of Congress and you say, “What happened there?” And they’ll say, “Well, we knew it was unconstitutional. We expected the courts to take care of that. We wanted to get reelected. The courts are the ones that come back and help us.”
At what point does the Supreme Court take on public opinion? Roughly forty states have laws banning gay marriage. Isn’t it risky to ask the court to invalidate that much public opinion before the public is really ready for it?
BOIES: When the Supreme Court held that it was unconstitutional to prevent interracial marriages, 64 percent or more of the population of the United States, about two-thirds of the population, believed interracial marriages were wrong. That’s a much higher percentage than opposes gay and lesbian marriage in this country today.
If you look at where this country’s going, if you look at the polls, the vast majority of people are moving in this direction already. Certainly all the young people.
As you both know, some leading gay groups were opposed to what you have done. They argued that the country was not politically ready for this kind of judicial decision. And they said they need more time to win over the public opinion, state by state, that if you go to the Supreme Court and lose, you will actually set back the cause of equality in marriage for years. Why did you go against the wishes of so many in the gay community who didn’t want you to do this?
OLSON: When people said, “Maybe you should be waiting. Maybe you should wait until there’s more popular support,” our answer to that was, “Well, when is that going to happen? How long do you want people to wait? How long do you want people to be deprived of their constitutional rights in California?”
You’ve clearly read Martin Luther King Jr.’s “Letter from a Birmingham Jail.”
OLSON: People told Martin Luther King, “Don’t do it. The people aren’t ready.” And Martin Luther King responded, “I can’t wait. I’m not going to make people wait.” And when people told Martin Luther King, “You may lose,” he said that battles for civil rights are won ultimately by people fighting for civil rights.
And one more thing. The Supreme Court had made the decision in Loving v. Virginia in 1967, striking down the laws of seventeen states that prohibited interracial marriage. Now it’s, what, forty years later? The public sometimes follows the opinions of the Supreme Court, reads the opinion and says, “My gosh, thank goodness for the Supreme Court. We realize how wrong that was.”
In 1973, when the court ruled in favor of women’s reproductive rights, many people weren’t ready for it. There was a huge backlash. And today women’s reproductive rights are threatened because the political movement that grew up after Roe v. Wade has become so powerful.
BOIES: Well, I don’t think they’re any more threatened now than they would have been if you hadn’t had Roe v. Wade. You have to sometimes fight these battles over and over again. But that’s no reason not to fight them and try to win them when you can.
What did you tell the gay activists who came to you?
BOIES: For one thing, the gay activists who came and talked to me were not nearly as impassioned as you suggest. They recognized that there were two sides to the question. They were concerned. And I think a lot of those concerns have been alleviated as they’ve seen the record that we’ve built. I think a lot of the people who were dubious about this case have now come to Ted and have come to me and said, “We’re glad you brought this case.”
There are still some people who are very worried about what the Supreme Court will do. And I sympathize with that. These are people who have dedicated their lives to promoting gay and lesbian rights. And they are people you need to listen to. But one of the things that I’ve always said to them is this case is going to be brought. You can’t keep people from litigating.
And if it’s going to be brought, you want it brought by people who know how to try cases, who know how to argue cases on appeal, who are going to have the resources and the commitment to try it right. I think anybody who saw the case that we made in California last month can see that we’ve built a record there; you cannot look at it and come away believing that Proposition 8 is constitutional. And that record took a lot of work.
We brought in experts from all over the world, the leading experts, leading scientific experts in psychology and sociology and history and political science and anthropology. We canvassed all the scientific studies. We made a presentation that would have been very difficult for a lot of lawyers to have made. So if you’re going to have this case go up to the Supreme Court, we think it ought to go up with the absolute best record.
Tell me about the two couples that you are representing.
BOIES: We put them on the stand, all four of them, right at the beginning of the trial. And you could not listen to these people and not be moved by their stories. You could not listen to these people and not be moved by their love for each other, by their desire to be married, by the harm, the pain that they were being caused by not being able to do what we take for granted, which is to marry the person we love.
OLSON: The lesbian couple is raising four boys. They’ve been together for many, many years. The gay male couple has been together in a loving relationship for a long period of time. They put a real face on the discrimination. And they talked about how much it mattered to them that their loving relationship and their role in the community and their ability to go to work and pick up their children at school and all of those things are threatened and demeaned because people won’t recognize that they are in the same kind of relationship as their next-door neighbor.
We’re hurting them enormously and hurting ourselves by treating a class of our citizens as different and less worthy of respect. It is not American. It’s not a part of our culture. It’s damaging to America to take a class of our citizens, who are every bit as much contributors to our society, and say, “Your relationship is not recognized. It’s a second-class citizenship.” If you believe in the sanctity of marriage, if you believe in family values, why in the world would you want to exclude a whole class of citizens from that?
You’ve always had respect for your adversary in the courtroom. And this opponent was one of your friends, Charles Cooper. You served with him in the Reagan Justice Department. What was the most effective argument he made against you?
OLSON: I have great respect for him. He’s a very fine lawyer. He had a very fine group of lawyers and they were doing their best, but I didn’t find any of their arguments effective. I have said from the beginning of this case, I’ve yet to hear an argument that persuades me or even comes close to persuading me that we should treat our gay and lesbian colleagu
es differently and deny them equality.
But what was a very eye-opening event, during one of the early proceedings, the judge asked my opponent, “What harm to the institution of heterosexual marriage would occur if gays and lesbians were allowed to marry?”
This went back and forth and back and forth. The judge kept wanting an answer. And my opponent, finally, had to answer it truthfully. He paused and said, “I don’t know. I don’t know.” That to me sums up the other side. Allowing the two couples or others like them to engage in a relationship with their partner where they can be treated as equal members of society doesn’t hurt your marriage or my marriage or David’s marriage or any other heterosexual marriage. People are not going to say, “I don’t want to get married anymore if those same-sex people can get married.” That’s not going to happen.
Yet your opponents kept coming back to the argument that the central reason for Proposition 8 is its role “in regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation.”
OLSON: We have never in this country required the ability or desire to procreate as a condition for getting married. People who are seventy, eighty, ninety years old may get married. People who have no interest in having children can get married.
The Supreme Court has said that the right to get married is a fundamental individual right. And our opponents say, “Well, the state has an interest in procreation and that’s why we allow people to get married.” No one’s stopping heterosexual people from getting married and having all the children they want. It is simply allowing people who have abiding affection for one another to live a civil life. The same way you are.