Bill Moyers Journal

by Bill Moyers

  One of the opposing lawyers credited the two of you with putting on a spectacular show, but he said your evidence was irrelevant: “The best thing for a child is to have both a mother and a father. A same-sex couple couldn’t offer the same benefits as a mother and a father,” he said. “That’s the case.”

  BOIES: As to whether a heterosexual couple raises better children than a same-sex couple, all the evidence is to the contrary. The scientific evidence, and this has been studied over and over again, shows that what’s important is to have a loving, stable, two-parent family. And that can be a heterosexual couple. It can be a gay couple. It can be a lesbian couple.

  OLSON: The world’s leading expert about the welfare of children, from Cambridge, testified that children do as well in a same-sex environment, where both of their parents are the same sex, as with opposite-sex parents. And it’s important to recognize that California recognizes the right of same-sex couples to live together, to have children, to adopt children, or conceive children in various ways that are available these days. There are 37,000 children in California with same-sex couples. And the evidence shows that those children are doing fine, just fine. Compare an opposite-sex couple in which there’s an abusive father with a same-sex loving couple. The quality of a parent is not based upon gender or sexual orientation. It is in the quality of one’s heart.

  When the court first ruled that gay marriage was permissible in California, 18,000 gay and lesbian couples got married. Then Proposition 8 comes along and declares gay marriage unconstitutional. What happens to those 18,000 who married in that interim?

  BOIES: They’re still valid. And one of the things that makes the equal protection argument so strong for California is that California has this absurd classification system right now. If you are a gay or lesbian couple who got married, one of those 18,000, your marriage is valid. In addition, if you were a gay or lesbian couple that got married in another state where it was valid and moved to California during that period, that marriage is also recognized. But if you’re one of the other gay and lesbian couples who didn’t get married, you can’t get married now. And if you happen to be one of the people who did get married in that window and you get divorced, you can’t get remarried. Because of Proposition 8.

  OLSON: So you have various different classes of persons. People who can’t get married. People who can get married. People who are married. People who are married but can’t get remarried. People who got married in another state who may remain married. So, California’s got what we call a crazyquilt system of laws that treat people differently in different categories.

  I’m sure you know you’re up against some very powerful religious sentiment on this. The Southern Baptist Convention, with millions of members, the largest Protestant denomination in America, describes homosexuality as an abomination. The Catholic Church calls homosexual activity gravely immoral.

  Archbishop Joseph Kurtz of the U.S. Conference of Catholic Bishops says, “The difference between man and woman allows them to make the fundamentally unique commitment of marriage, ordered to love and the creation and nurturing of new life. Because of the unique nature and responsibilities of this relationship, it deserves the protection and promotion of the state.”

  OLSON: We respect people’s individual religious convictions. They’re entitled to those convictions under that same Constitution that protects the free exercise of religion. But this point of view is based upon the idea that intimate sexual conduct between persons of the same sex is evil, it’s a sin, it’s wrong, it’s unnatural. Well, the Supreme Court of the United States just a few years ago struck down laws that violated the fundamental rights of individuals to have intimate sexual relationships with one another.

  This was Lawrence v. Texas. The Court said that sodomy is not unconstitutional.

  BOIES: That’s right.

  So is the religious doctrine wrong?

  BOIES: You can’t say the religious doctrine is wrong. Religious doctrine is a doctrine of belief. And I don’t think either Ted or I or anybody would say that the archbishop or the Southern Baptists don’t have the right to believe whatever they believe. And our Constitution, the First Amendment, guarantees them that right of freedom of conscience and freedom of religious beliefs.

  But that same First Amendment, in the antiestablishment clause of that amendment, says that they cannot impose those religious beliefs on other people. No one is saying that the Southern Baptist Church or the Catholic Church or any other church ought to marry people who they don’t want to marry. However, what we are saying is that no religious group, no matter how numerous, should be able to pass a law that says the state will only sanction marriages that we religiously approve. That’s the separation between church and state that our Constitution has always guaranteed.

  Couldn’t you have avoided all of this if you had just said, “Well, gay people, lesbians, have the same legal rights in civil unions.” And you wouldn’t have stirred up this crowd.

  OLSON: Well, yes, they’d get stirred up anyway. But if the American people would just listen to what the plaintiffs and the other experts said in this case, they would understand so much more about the damage that’s done by people who say, “You can live together. You may have children. We sort of think it’s okay for your relationship to exist, but you can’t call yourselves married. And your relationship doesn’t count. And you don’t count.” You know, that is demeaning. And if the American people see that, they’ll see the difference.

  BOIES: One of the reasons we put the individual plaintiffs on the stand was for the judge and, hopefully, for the appellate court to see the human face of this discrimination. To see the cost, the pain that this kind of discrimination causes. Americans believe in liberty. We believe in equality. It’s baked into our soul. The only way that we have engaged in the kind of discrimination that we have, historically, is by somehow overlooking the humanity of the people that we discriminate against. We did that with African Americans. We did that with Asians. We did that with American Indians. We did that with women. We’re doing it with gays and lesbians today. We somehow put out of our mind the fact that we’re discriminating against another human being by characterizing them as somehow not like us. Not equal to us. Not fully human. Not a full citizen. And that’s what is so pernicious about this campaign.

  This is the first time that state laws banning gay marriage have been challenged in a federal court. No matter who wins, no matter how the judge in San Francisco comes down, it’s likely this will be appealed all the way to the Supreme Court, right?

  BOIES: Yes.

  OLSON: Yes.

  If you go to the Supreme Court, Ted, you’re going to run smack up against some of your best friends. You mentioned that 2003 case, when the court outlawed Texas laws against sodomy. As you know, Justice Scalia issued a strong, some say virulent, dissent. And he said that this decision effectively decrees the end of all morals legislation and would lead to sanctioning same-sex marriages.

  He went on to accuse his colleagues on the court of aligning themselves with the “homosexual agenda.” Let me read you this. This is from Justice Scalia. “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” If you get to the Court, how are you going to deal with your friend Justice Scalia?

  OLSON: Well, let me say that I have enormous respect for all of the members of the United States Supreme Court and I’ve had wonderful relationships in one way or another with all of them. My friends are not on one side or the other. Second, Justice Scalia writes beautifully. And he has passionate, powerful views. But he lost. And he went on to say in that very opinion, “If we decide this case that way, what’s to prevent same-sex marriage from being held to be a constitutional right?” Well, he’s right.
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  And once you make that decision in that case, and you put it together with the marriage cases, that’s the end of it, as far as that’s concerned. We hope to persuade everyone on that Court. And part of what you just read was that some people don’t want a homosexual to be a teacher in a school. Well, today, I don’t think hardly anyone would agree that you could make a law that said a person whose sexual orientation is homosexual can’t teach in a public school.

  There was a ballot proposition in California in the ’70s—you might remember this—that would have restricted the rights of homosexuals to be teachers in schools. And it was going to pass. It was a major amendment to the California law. And Ronald Reagan came out and said that’s unwise. That will hurt people. That will cause people, teachers, good teachers, to be persecuted. And it went down to defeat.

  You know that some of your friends and longtime colleagues, including Charles Cooper, are saying that Ted Olson has turned to the very kind of judicial activism that he’s always lamented and opposed. Do you understand that they’re saying that?

  OLSON: I know they’re saying this. Some of them to my face. And my answer is, it isn’t judicial activism for the Supreme Court to recognize an associational right, a liberty right, and a privacy right for two people who love one another to be married. I don’t think it’s judicial activism to treat our citizens equally, and to require that equality under the law be accorded to all of our citizens. There are a lot of people in this country who have a sexual orientation that is different than ours, and if we treat them differently, we’re hurting them, no one can question that. We’re hurting them. We’re saying that they’re different. If you’re going to be a citizen, take the time to read the transcript of this trial and what the experts had to say and what the plaintiffs had to say. And then come to me and tell me that I’m wrong.

  BOIES: I think that conservatives, just like liberals, rely on the Supreme Court to protect the rule of law, to protect our liberties, to look at a law and decide whether or not it fits within the Constitution. And I think when you’re thinking about judicial activism the point that’s really important here is that this is not a new right. Nobody is saying, “Go find in the Constitution the right to get married.” Everybody, a unanimous Supreme Court, says there’s a fundamental right to get married.

  The question is whether you can discriminate against certain people based on their sexual orientation. And the issue of prohibiting discrimination has never, in my view, been looked on as a test of judicial activism. That’s not liberal, that’s not conservative. That’s not Republican or Democrat. That’s simply an American constitutional civil right.

  WENDELL POTTER

  One of the most dramatic moments in the fight for health care reform came early in the summer of 2009 when a bespectacled onetime journalist with a slight southern accent, so faint only kindred Tennessee ears might have detected it, looked up at a row of senatorial faces and began:

  My name is Wendell Potter, and for twenty years I worked as a senior executive at health insurance companies, and I saw how they confuse their customers and dump the sick—all so they can satisfy their Wall Street investors.

  In those two sentences Wendell Potter, most recently a senior vice president of CIGNA, the country’s fourth-largest health insurance company, had broken the industry’s code of silence on the lethal consequences of corporate spin in the pursuit of profits over patient care.

  And he was just getting started. He went on to describe how the industry spent billions of dollars to spread disinformation, buy influence, skirt regulations, and mislead consumers. He knew the tactics firsthand; as a consummate insider earning a six-figure income, he sat on policy committees, crafted executive messages, and cajoled the press. Just two years earlier he had defended CIGNA during a public relations nightmare as protestors forced the company to reverse its decision not to pay for a liver transplant for seventeen-year-old Nataline Sarkisyan, who died two hours after CIGNA relented.

  Who can say exactly when enough’s enough? When a person reaches the tipping point and blows the whistle on his own circle, his own colleagues and work? Potter still can’t say, although he carries with him to this day pictures he took while visiting a rural health “fair” in Wise, Virginia, where hundreds of people stood in the mist and rain waiting to be treated in stalls built for livestock. He quit CIGNA in 2008 and one year later went public, warning the Senate Commerce Committee that the industry was mounting “duplicitous and well-financed PR and lobbying campaigns,” a charm offensive to shape the health care debate “in a way that benefits Wall Street far more than average Americans.”

  The mainstream press carried little of his testimony. I missed it myself. Then John Stauber called. The founder of the public interest organization Center for Media and Democracy, a pioneer in exposing corporate disinformation, he urged me to take a serious look at Potter. “Are you sure he’s for real?” I asked. “Grill him yourself,” Stauber answered. So I did, with my editorial team: five uninterrupted hours in private, followed by a week of forensic research into his answers and background. We were convinced. Still, when we began the interview, I decided to test him again....

  —Bill Moyers

  You left CIGNA after working there fifteen years.

  I did.

  Were you pushed out?

  I was not. It was my decision to leave, and my decision to leave when I did.

  Were you passed over for a promotion?

  Absolutely not. No.

  Had you been well paid and rewarded by the company?

  Very well paid. And over the years I had many job opportunities, many bonuses, salary increases. And in fact, there was no further place for me to go in the company. I was head of corporate communications, and that was the ultimate PR job.

  Did you like your boss and the people you worked with?

  I did, and still do. I still respect them.

  And they gave you a terrific party when you left?

  They sure did, yes.

  Why are you speaking out now?

  I didn’t intend to, until it became really clear to me that the industry is resorting to the same tactics they’ve used over the years, and particularly back in the early ’90s, when they were leading the effort to kill the Clinton plan.

  During the fifteen years you were there, did you go to them and say, “I think we’re on the wrong side. I think we’re fighting the wrong people here”?

  I didn’t, because for most of the time I was there, I felt that what we were doing was the right thing, and that I was playing on an honorable team. I just didn’t really get it all that much until toward the end of my tenure at CIGNA.

  What did you see?

  I began to question what I was doing as the industry shifted from selling primarily managed care plans to what they refer to as consumer-driven plans. Those are really plans with very high deductibles, meaning that they’re shifting a lot of the cost of health care from employers and insurers—insurance companies—to individuals. As a result, a lot of people can’t even afford to make their co-payments when they go get care. But the turning point for me was a trip back home to Tennessee. That’s when I began to see exactly what is happening to so many Americans.

  When was this?

  July of 2007.

  You were still working for CIGNA?

  I was. I went home to visit relatives. And I picked up the local newspaper and I saw that a health care expedition was being held a few miles up the road, in Wise, Virginia. And I was intrigued. I borrowed my dad’s car and drove fifty miles up the road to the Wise County Fairground. I had my camera and took some pictures. It was a very cloudy, misty day; it rained some. As I walked through the fairground gates, I didn’t know what to expect. I assumed it would be health booths set up for people to get their blood pressure checked, things like that.

  But what I saw were doctors providing health care in animal stalls, or in tents they had erected. There was no privacy. In some of my pictures people are being
treated on gurneys on rain-soaked pavement. And there were long lines of people, standing and sitting, waiting to get care. People had driven from South Carolina, Georgia, Kentucky, Tennessee—all over the region—because they had heard about this by word of mouth. I thought, these could have been people I’d grown up with, people down the road from me, people I had known.

  How did you react?

  It was absolutely stunning. It was like being hit by lightning. It was almost like, what country am I in? It just didn’t seem possible that I was in the United States.

  Skeptics are going to say, “How can Wendell Potter sit here and say he was only now finding out that there were a lot of Americans who didn’t have adequate insurance and needed health care? He’d been working in the industry for over fifteen years!”

  And that was my problem. I had been in the industry and I’d risen up in the ranks. And I had a great job. And I had a terrific office in a high-rise building in Philadelphia. I was insulated. I saw the data. I knew that 47 million people were uninsured, but I didn’t put faces with that number.

  Just a few weeks later though, I was back at corporate headquarters in Philadelphia, and flying to meetings on the company jet. And I thought, what a great way to travel. You’re sitting in a luxurious corporate jet, leather seats, very spacious. You’re served lunch by a flight attendant who brings it on a gold-rimmed plate. And she handed me gold-plated silverware to eat it with. And then I remembered the people I had seen in Wise County.

  But for years you had seen premiums rising. People purged from the rolls, people who couldn’t afford the health care that CIGNA and other companies were offering. And this is the first time you came face-to-face with it?