By Josh Richman
Friday, August 6th, 2010 at 12:41 pm in same-sex marriage.
David Boies – the famed litigator who helped convince a federal judge to rule this week that California’s constitutional ban on same-sex marriage as enacted by Proposition 8 of 2008 violates the U.S. Constitution – had a lot of interesting things to say at the Commonwealth Club of California last night, far more than we had room for in the paper.
Follow me after the jump for a more complete readout…
Boies said we’re a nation based on a culture of equality – at first only for a fraction of the populace, but expanded gradually over time to benefit more and more in areas of race and gender. “We have a long, long way to go in this country in many areas where discrimination continues.”
Yet LGBT rights remain the only official, state-enforced area of discrimination, he said. “The great thing about what happened yesterday is I think we took an enormous step, … an important first step in eliminating this last bastion of official, state-sponsored discrimination in this country.”
It’s fine to move toward equality at the ballot box or by legislative act, he said, but ultimately a question of individual rights can’t be decided by a majority; fundamental rights must never be put to a vote. Majority rule must be consistent with protection of everyone’s individual, fundamental rights, he said.
And when Mexico, Argentina, South Africa and Spain are ahead of the United States in recognizing and protecting such rights, he said, something is definitely wrong.
Boies recalled litigating civil rights cases in Mississippi early in his career. The best Southern judges, whether conservative Democrats or Republicans, were prepared to follow the dictates of the law even at extreme cost to their reputations or their safety. “It’s through that process that we have made enormous progress, and it’s through that process we had the decision we had yesterday.”
Boies said he and the rest of his legal team set out to prove marriage is a fundamental right; that depriving gay and lesbian citizens of that right seriously harmed them and their children; and that letting them marry couldn’t harm anyone else or undermine the institution of marriage. “We proved every one of those things,” he said, adding U.S. District Judge Vaughn Walker’s ruling “lays to rest in a thorough, thoughtful, careful way every one of the arguments” set out by Proposition 8’s proponents.
Even witnesses called by the proponents acknowledged during cross-examination that depriving gay and lesbian citizens of the right to marry seriously harmed them and their children, he said, “and yesterday the court found that as fact.”
Testimony under oath is “a powerful crucible for truth,” he said, yet he’s sure opponents of same-sex marriage will now attack Walker’s objectivity and conclusions.
“Activist judges are judges who do things that you don’t like,” he said, drawing laughter from the audience as he recalled his litigation of the U.S. Supreme Court case that decided the 2000 presidential election. “I remember thinking five of the justices on Bush v. Gore were activist judges.”
He urged the audience to confront anyone who attacks Walker and ask them what specifically about the decision they disagree with, what facts they find false; it’s time to move this debate out of the realm of emotion and bias and into the realm of logic and fact.
Boies said many cases he has litigated had good arguments on both sides, but “there is not, I suggest to you, something to balance here.” People are being harmed every day by this discrimination and nobody is benefiting except people who want to keep others classified as not equal, he said.
People with firmly held religious beliefs against homosexuality and same-sex marriage are entirely entitled to hold those beliefs under the First Amendment’s free exercise clause, he said, but the same amendment’s establishment clause precludes them from imposing their views on others.
Boies recalled cross-examining David Blankenhorn, one of the proponents’ witnesses, and asking him whether he believed in the American culture and ideal of equality; Blankenhorn replied that he did. Boies said he then asked if it’s inconsistent with that ideal to say gays and lesbians can’t marry, “and interestingly, he agreed with that.” And Boies said he then asked Blankenhorn whether we’d all be more American on the day after we legalize gay marriage than we were on the day before, “and much to the surprise of people on both sides, he said we would.”
“When you’re up on the witness stand, there’s no place to hide,” Boies said Thursday. “We’re all diminished when we have that kind of discrimination in our country.”
Boies paused and choked up as he finished his opening remarks, saying Wednesday’s victory belonged not to the lawyers in this case but rather to the people who’ve fought for gay and lesbian rights for so long at such high cost to themselves.
Stanford Law Professor Pamela Karlan moderated and aggregated questions sent up from the audience. First she asked Boies what his worst-case scenario had been, and what inspired him and his colleagues to proceed anyway.
Boies replied the worst-case scenario would be not only to lose but to lose with an opinion filled with anti-gay, anti-lesbian rhetoric that would not only close this legal avenue but could be used against other civil-rights efforts. But “we were convinced the country and the courts have moved beyond that,” he said. “We believe that this was a case that the time was right to bring, we believed we could win this case.”
They were inspired to proceed by the opportunity to make a complete trial record, which itself could influence public opinion. “This is a decision that teaches, it is a decision that explains, it is a decision that anyone who reads it, I think ,will be affected in their views.”
There aren’t many things on which he and co-counsel Ted Olson – his nemesis in the Bush v. Gore litigation, and a former U.S. Solicitor General – agree outside of this issue, Boies said, so their cooperation was symbolic in and of itself. “This is not a conservative or liberal issue, this is not a Democratic or Republican issue; this is a civil-rights issue, this is a Constitutional issue.”
Karlan asked what the other side had been thinking, and why they didn’t mount a stronger case.
Boies recalled that near the trial’s end, a spokesperson (who wasn’t a lawyer) for the proponents had accused him of trying to elevate science over religion – an accusation he basically accepted. “They had good lawyers, they had able, energetic lawyers that did the best they could to put on a case,” he said. “The problem was, there wasn’t a case to present.”
The proponents had named about six to eight expert witnesses they intended to call, and Boies’ team took video depositions from them all; some of those witnesses’ assertions ended up being so unfounded in fact that Boies’ team chose to show the video depositions at trial.
Karlan asked what Boies’ favorite moments had been at trial; he replied there had been three.
One, he said, was Olson’s strong, 30-minute rebuttal argument, composed on the fly following the proponents’ closing argument but strong enough to stir onlookers in an overflow courtroom into cheers.
The second, he said, was cross-examining Blankenhorn, who has spoken about and debated this issue all over the nation. “He’s an articulate, effective person in those forums, but as I said, the witness box is a lonely place” where it’s “hard to hide assertions that aren’t backed up with facts,” Boies said.
The third, he said, was questioning Dr. William Tam, one of the measure’s proponents. Boies said Tam’s testimony illustrated how the proponents had concentrated during the Proposition 8 campaign on people’s fear, particularly that of having students in public school taught that same-sex marriage is legal and acceptable, but at trial they concentrated on casting marriage as a framework for procreation and same-sex marriage as a danger to heterosexual marriage – neither of which was convincing. Boies said he reminded Tam of California’s history of discrimination against Asian-Americans, and Tam replied he wouldn’t want to be deprived of his own rights but that this wouldn’t change his mind about other people’s – a moment that “showed the extent to which certain views are beyond reason.”
Karlan asked whether Boies was surprised by Walkers’ ruling.
“I’m not sure I was surprised but I was certainly impressed,” Boies replied, noting armies of lawyers had litigated the case while the judge wrote the opinion with a few clerks’ aid. “He really mastered the record in a way that was awesome.”
Karlan noted Walker’s higher courts must give deference to Walker’s findings of fact, although they’ll be able to review his legal conclusions from scratch. She then asked Boies what’s next.
Boies said Walker will decide next week whether to stay his ruling pending appeal; he’s not sure what the judge will do, although the judge clearly held that the same-sex marriage ban is a serious deprivation of constitutional rights and there’s a strong judicial tendency not to stay such rulings. If Walker doesn’t issue a stay, the measure’s proponents can seek one from the 9th U.S. Circuit Court of Appeals.
Boies said if a stay is granted, he believes the 9th Circuit will expedite a ruling for the plaintiffs’ sake; if a stay isn’t granted, the appellate court will expedite a ruling for the proponents’ sake. So either way, the appellate court will want to take this up quickly, and that could mean bypassing the usual three-judge panel in favor of an “en banc,” 11-judge panel.
After that, he said, it’s on to the U.S. Supreme Court. Boies said it’s conceivable that the case could be argued to the 9th Circuit before this year’s end, get a ruling in the first half of 2011, and have it before the Supreme Court late next year.
In a case such as this, where a court has held a state law unconstitutional with a decision so broad as to have potential national effect, the U.S. Supreme Court will almost certainly want to do its own review, Boies said. However, if the 9th Circuit makes a narrower ruling on the case – something particular to California, where 18,000 same-sex couples already are legally married but their peers can’t do the same, so that identically situated people are treated differently under the law – perhaps the nation’s highest court wouldn’t take it up.
Karlan noted the State of California didn’t try to defend Proposition 8’s constitutionality, and in fact filed papers agreeing with the plaintiffs. Boies said there’s some “real doubt” as to whether the measure’s proponents, who were intervening defendants in the trial court, have standing to pursue an appeal.
Karlan asked what Boies believed of the roles that Associate Justice Anthony Kennedy, the presumptive swing vote on this issue; Chief Justice John Roberts; and newly confirmed and about-to-be-sworn Associate Justice Elena Kagan will play in this case.
“We are not taking any justice for granted on this issue, and we’re not giving up on any justice,” he replied. “This is a complicated issue, it’s an issue on which people have had conflicting views over the years, it’s an issue on which I hope and expect the court, when it gets this case, is going to look at the record we made.”
“If they do that, I think we ought to win every one of those justices,” he asserted. “I’m not saying we’re going to, but we’re not giving up on anybody.”
He said he thinks it’s significant that he’ll be arguing to judges of his own generation, who’ve witnessed decades of institutionalized discrimination against gays and lesbians. “What you have to do is you have to ask judges to put those cultural influences aside … but judges are taught to do that, and the best judges do.”