David Boies & Theodore Olson: "Redeeming the Dream: The Case for Marriage Equality"

MS. KATTY KAY

11:06:54
Thanks for joining us. I'm Katty Kay of the BBC sitting in for Diane Rehm. Before we begin our conversation, we wanted to share some sad news with you. John Rehm, Diane's husband of 54 years, died yesterday. Diane sends thanks to all of you for your good wishes during his long illness. And she hopes to be back with you on the air next week. This week marks the one-year anniversary of the Supreme Court case that ended Proposition 8, a California law restricting marriage to a man and a woman.

MS. KATTY KAY

11:07:23
When the lawsuit was filed against Prop. 8 six years ago, same-sex marriage was legal in three states. It's now the law in 19 states and the District of Columbia. And a string of federal courts have ruled that same-sex marriage bans are unconstitutional. Legal odd-couple, David Boies and Ted Olson, write about their battle to overturn Prop. 8 in a new book called, "Redeeming the Dream: The Case for Marriage Equality." David Boies and Ted Olson join me in the studio this morning. Welcome, both of you.

MR. THEODORE OLSON

11:07:54
Thank you, Katty.

MR. DAVID BOIES

11:07:55
Thank you.

KAY

11:07:56
We will be taking your calls, questions and comments on this issue. 1-800-433-8850 is the phone number. The email address is drshow@wamu.org. You can of course send us a tweet as well. We'd love to get your questions later on in the program. But I am going to start with this rather curious partnership of the two men who are sitting in the studio with me, who have been on the opposite sides of major political decisions in the past. David, how did the two of you get together on this case?

BOIES

11:08:26
We've known each other before Bush v. Gore. But during the Bush v. Gore battle, we began to know each other well and we...

KAY

11:08:34
Even though you were on opposite sides.

BOIES

11:08:35
Even though we were on opposite sides. And we became friends. I think we each admired -- I certainly admired Ted's integrity and the way he handled himself in that case. And after the case was over, we became closer friends and we began to do things together and our families began to do things together. And we looked for some cases to do. We thought we would be a good combination that'd be on the same side as opposed to opposite sides.

BOIES

11:09:03
And when this case came along and Ted was asked by some people in California whether he'd be prepared to challenge Proposition 8 on federal constitutional grounds, he reached out to me and we both decided that this would be a great case to take on -- both for the opportunity to work together, but even more important, because of the importance of the case, which I think we both believe is the defining civil rights case of this decade.

KAY

11:09:31
Okay. I want to get a little bit more to Prop. 8 in just a second. But, Ted Olson, this is sort of breaking news, isn't it, that in this incredibly divided political world that we live in, in which every single poll tells us that Americans are becoming more bitter and more divided, the two of you have actually managed to overcome what was perhaps one of the most partisan moments in American politics in the last two decades and overcome those differences to work together on something.

OLSON

11:09:58
Well, we felt, and we feel very strongly now after having worked together on this case for five years and writing this book together, is that if we focus on the things that we think we can do for this country or for our clients, there are lots of things that we can agree on. We can disagree on certain things, but why spend time talking about that sort of thing? And you're right, things have become very divisive in this country. People are polarized. It was very...

KAY

11:10:29
With genuinely opposing views?

OLSON

11:10:31
Yes, genuinely -- yes, it's genuine. It's pretty heated at times. But people can spend their time on those kind of things and fighting about things and get nothing done. And does that make you feel very good? The anger, bitterness, malice that creeps into the dialog, that doesn't make anybody feel very good. Working with someone that you respect, even if they have different views -- my wife has different views, and we get along very well because we focus on the things that we want to do together. Working with David is a dream.

KAY

11:11:07
Talking of dreams, you called the book, "Redeeming the Dream." David, why?

BOIES

11:11:12
Because the California Supreme Court held in 2008 that the California Constitution required that gay and lesbian citizens be given the right everybody else had to marry the person that they loved. And that fulfilled a dream of equality that gay and lesbian citizens had had. And then that dream was taken away when Proposition 8 was passed, and they were relegated to really second-class citizenship. And Proposition 8 -- the case against Proposition 8 was really an effort to redeem that dream and to bring back the quality of equality and togetherness that had existed.

BOIES

11:11:59
And it also is related to Martin Luther King's dream speech, in which he dreamed of equality. And although he was speaking in terms of racial equality there, I think those sentiments apply across-the-board when you're talking about the efforts to bring this country more true to its original principles.

KAY

11:12:22
Ted, remind us of the background to Proposition 8. What happened in California in the few years leading up to Prop. 8?

OLSON

11:12:30
Well, it was 2004, I think that Mayor Newsome...

BOIES

11:12:33
Yes.

KAY

11:12:33
Yep.

OLSON

11:12:34
...in San Francisco decided that he would allow the clerk in San Francisco to issue marriage licenses. People thronged to city hall to get married. And people all over the world saw these very happy people, loving people coming together to engage in marriage, to have a marriage that -- bringing them together officially and making them part of the community. Well, the courts struck that down. They said Mayor Newsome did not have the authority to do it. But the people that were involved in those efforts then brought a case in court.

OLSON

11:13:08
The California Supreme Court, in May of 2008, held that individuals had a constitutional right in California, under the California Constitution, to be treated equally and to have equal access to fundamental rights such as marriage. So that, in May of 2008, the California Supreme Court said, an individual could marry a person of the same sex. At the same time, seeing that coming, opponents of marriage between individuals of the same sex were gathering signatures and put Proposition 8 on the ballot.

OLSON

11:13:41
And it was on the ballot, at the same ballot where people in California went to participate in electing Obama President of the United States, they voted 52 to 48 to take away the right of individuals in their state to be treated equally, to marry the person that they love. It was a tragedy for people to, at the same time, see a dream come true -- an African-American elected President of the United States, at the same time the dreams of individuals to equality in California were being dashed.

KAY

11:14:13
So, David, between May of 2008 and November of 2008, a movement was organized around Proposition 8. Describe what was happening in California. Who was coming into the state? Who was organizing Proposition 8? Where was the money coming from?

BOIES

11:14:29
You had a tremendous amount of money that was poured in, in favor of Proposition 8 from religious organizations -- the Catholic Church, the Mormon Church, the Southern Baptist Church and a number of other churches, were very, very active in that campaign.

KAY

11:14:44
From all over the country they were coming.

BOIES

11:14:45
From all over the country. Now, you also had some religious organizations that opposed Proposition 8. It was not all on one side. But overwhelmingly the amount of money that came into that campaign from religious organizations came in, in favor of the Proposition 8 ban. You had a variety of advertisements that were prepared by organizations supporting Proposition 8 that really attacked gay people and really tried to send a message that it was not okay to be gay and the children somehow had to be protected from believing that gay people were just normal.

BOIES

11:15:25
And it was a -- it was a very unattractive campaign and I think one that inflamed a lot of people. Something that misled a lot of people. And it was something that ultimately succeeded at the polls 52 to 48 in passing Proposition 8.

OLSON

11:15:43
It took, they spent $40-some million, we proved at the trial of this case, to enact Proposition 8. $40 million.

KAY

11:15:51
I think, Ted, when Proposition 8 passed, a lot of people were surprised that it was in California, because California is seen, not just in the United States but in many countries around the world, as a quintessentially Democratic, liberal state. How did they manage to galvanize the citizens of California, 52 percent of them, to pass Prop. 8? Which sectors of the California community were voting in favor of it?

OLSON

11:16:17
Well, as David pointed out, there was a strong religious backing for the -- to the proponents of Proposition 8. There were misleading advertisements about the dangerous things that were going to happen in schools. Your children would be corrupted. There were some, as David said, very unpleasant things that were said. It was very, very unfortunate, because both David and I grew up in California. We went to school in California. We moved out of California, but we think of ourselves as Californians.

OLSON

11:16:47
And you think of California as a forward-looking place, a progressive place -- the 49ers, the immense population of people from Latin American countries, an immense Asian population. It's a very diverse state. And so I was shocked. And David and I have talked about this, we were both shocked that this happened in California. And the persons -- the gay and lesbian organizations that were opposing it, all thought it would be defeated. And then, all of a sudden, they all sort of woke up on election night and it had passed. It was a very sad day for California, we submit, and for Californians.

KAY

11:17:28
Okay. So, David, the two of you wake up, morning of the election. Everybody's focused on President Obama being elected. But you look at California and you decide that this needs to be challenged in the court.

BOIES

11:17:38
I think that initially what happened was that we woke up and we were shocked that this had happened in our state, because as Ted...

KAY

11:17:47
And because everyone was focused on Obama, it kind of went under the radar, I think, a little bit.

BOIES

11:17:49
It was a little bit under the radar. But the night it passed, when it was clear it was passing, there were demonstrations. There was a sense of shock and disappointment and sadness. And that was not just among the gay and lesbian community, but it was among a wide variety of people in California that believed in the openness and the diversity and the equality of Californians. And a small group of people, the Reiners, in particular, believed that this had to be challenged. And they reached out to Ted and Ted agreed. And then he reached out to me.

KAY

11:18:33
Okay. We're going to talk about more about the case when we come back from this short break. We'll also take your calls, questions and comments. 1-800, remember, 1-800-433-8850. 1-800-433-8850. Please do join my conversation on "Redeeming the Dream: The Case for Marriage Equality," with David Boies and Ted Olson.

KAY

11:20:01
Welcome back. I'm Katty Kay of the BBC sitting in for Diane Rehm. You've joined our conversation on "Redeeming the Dream: The Case for Marriage Equality." David Boies is the chairman of Boies, Schiller and Flexner. He's litigated some of the highest profile cases in recent history including United States versus Microsoft and of course Bush v. Gore. Ted Olson is a partner at Gibson, Dunn and Crutcher. He's a former solicitor general of the United States. Olson has argued over 60 cases before the Supreme Court including of course Bush v. Gore on the other side from David Boies.

KAY

11:20:33
I wanted -- you were telling the story of what happened on election night, what you both woke up feeling. Ted, you were approached to see if you would be interested in joining this legal battle. You are obviously a conservative. You've been a Republican solicitor general. Were members of your own party or your friends, your colleagues surprised that this is an issue that you would want to take on?

OLSON

11:21:00
Yes. I think it's fair to say that some people who are Republicans or conservatives and friends and so forth were surprised. I think that people who knew me were not surprised. I believe that marriage between two loving individuals who want to become a part of a stable community and a stable society and to raise a family and to be part of the American Dream, that is a conservative value.

OLSON

11:21:26
So while I apparently disappointed a number of people, because I heard from them, I thought this was the right thing to do. This was consistent with my own feeling of what this country is all about. Although I did know, because I was perceived as a very conservative person, and on this Bush versus Gore thing and so forth people remember that sort of thing, I reached out to David Boies because David is an outstanding person whose political views are known to be on the other side of the spectrum.

OLSON

11:21:57
And I thought that if the two of us came together and brought our law firms together and the resources of our firm, we could also convey the message that this wasn't a partisan issue. That this -- put Republican Democrat, put those labels aside. Think about the humanity involved in here, the decency, the respect that we should have and are supposed to have in this country for our fellow citizens. Think about it as an American ideal, not a conservative or liberal issue.

KAY

11:22:26
David, as you mentioned, thousands of people had been offered the chance to be married in California and had that taken away from them by Prop. 8. How did you choose the plaintiffs in your federal case?

BOIES

11:22:38
It was important that we choose people who were going to be able to withstand what we knew was going to be a great deal of pressure and abuse. We needed people whose relationships were strong and stable, who would be able to weather the storm. We also wanted to have...

KAY

11:23:00
...because you knew this would have a lot of scrutiny.

BOIES

11:23:01
We knew it would have a lot of scrutiny and we knew people would be scrutinizing their backgrounds. We also needed people who did not have things in their background that were going to be embarrassing to them. But most important, we needed people who were committed and who we knew would not wilt under the kind of abuse that we feared and were right were going to come.

BOIES

11:23:24
I don't know if you saw the HBO documentary that came yesterday, The Case Against 8, but they play in that documentary some of the abusive messages that were left on our plaintiff's answering machines. And to go through that and to have your family and your children live with that we knew was going to be a difficult thing.

BOIES

11:23:46
And so we needed people who we believed were going to be good spokespeople for this case and who were going to have the strength of their convictions and the courage to see it through.

KAY

11:23:58
Were you surprised when you agreed to take on this case as a federal case to come cross some opposition from members of the gay and lesbian community and advocates of gay rights who didn't feel you were doing the right thing?

BOIES

11:24:14
I was initially surprised but as I talked to them and as we heard from them, I understood where they were coming from. There was an article in 2009 in Slate in which a Yale professor said, this is the wrong time to bring this lawsuit. Very little change of success. You're going to set back things. And there were people who had believed that they were proceeding along a very measured incremental approach.

BOIES

11:24:49
And what they saw here was some -- two people coming in, two people without any experience in this kind of litigation and taking on a really bold approach, which was to say we're going to assert a federal constitutional right. No case had ever held that. The only case in which that had been raised, which was 35 years earlier, the Supreme Court had ruled that they did not have a case.

BOIES

11:25:16
So this was something that was perceived by a lot of gay rights organizations as being a bridge too far too soon. And we thought very seriously about that because we had a great deal of respect for those organizations. They, after all, had built the foundation that we were going to rely on.

KAY

11:25:34
They'd been working on this for years.

BOIES

11:25:36
They'd been working out for decades. And working on it in a situation in which it was much more difficult than it was in 2009. But ultimately we concluded that it was right to go ahead, in part because we had plaintive who wanted to get married. And we didn't know how to tell them that they didn't have a right to get married now. In part because we thought we'd win.

KAY

11:25:59
What made you confident, Ted, that you would win?

OLSON

11:26:01
Well, David and I are students of the constitution, students of the Supreme Court. We had read opinions from the Supreme Court. Fourteen times in something over 100 years the United States Supreme Court has said that marriage is a fundamental right, fundamental to your right to the pursuit of happiness, liberty, association and privacy. And the Supreme Court had held that in cases involving people in prison, people who couldn't procreate, in cases involving contraception, abortion and all of those things.

OLSON

11:26:37
We studied what the Supreme Court had said. We sensed that the Supreme Court was ready to uphold the right of citizens. The other part of the history of the Supreme Court is to protect classes of individuals who have characteristics that are immutable. It might be race or it might be illegitimacy or something like that. To put them in a box and treat them differently, the Supreme court abhors that kind of thing. So we looked at these precedents.

OLSON

11:27:05
More importantly, while we thought we were going to win, we knew that someone was going to file this case in California. There's tens of thousands of people in California that wanted to get married. If someone filed this case that didn't have our resources, our commitment and our experience, that might involve a case in the United States Supreme Court that was badly prepared or badly represented. The outcome could be awful then.

OLSON

11:27:30
If we were going to -- if a case was going to go to the Supreme Court we felt that we really had to do it. And no one could say -- when they were saying wait, no one could say wait until when. They had just spent millions of dollars trying to defeat Proposition 8 and had been defeated themselves. When was the next opportunity going to come? When was the Supreme Court going to change? No one could predict that sort of thing.

OLSON

11:27:56
And, as David points out, we had plaintiffs who wanted to be married. They had been -- their hopes had been dashed by what had happened in California. We couldn't say to them, we will not take your case. We will not try to represent you in court. We couldn't say that.

KAY

11:28:11
Okay. I want to get to the trial in a minute because there are a couple of key turning points that you write about in great, you know, courtroom-thriller fashion. You both are, as you've said, students of the constitution but you're also students of the democratic process. And what about the argument that the voters of California had voted for Prop. 8? This had been a democratically endorsed process.

BOIES

11:28:35
Almost every time the Supreme Court has to come in and establish and affirm a constitutional right, it is because the democratic voters or legislatures have established some infringement on minority rights. For example, in 1967 the reason Supreme Court had to declare unconstitutional state bans and interracial marriage is because states had democratically adopted those bans.

BOIES

11:29:04
If a state democratically adopts a ban on freedom of speech or decides they're going to have a state religion, they could do that democratically with a majority, but that wouldn't trump the constitution. The whole point of a written constitution is that there are certain rights that are so fundamental that we want to protect them from minorities no matter how large the majority vote is.

KAY

11:29:27
Okay. Let's get to the courtroom and the trial stage. And you write about a couple of key moments, Ted, where you felt that things were shifting in your favor.

OLSON

11:29:37
Several things happened. The most compelling moment for us wasn't so dramatic as a shift or anything like that. It was an emotional experience when David and I on the first day of trial -- we had a 13-day trial -- David and I on the first day of trial put the four plaintiffs, two lesbian women, two gay men, on the witness stand and asked them simple questions about their life.

OLSON

11:30:03
How it was -- how did it feel to be denied the right to be married? How did it feel for their fellow citizens to put in the constitution that they were not equal, that their relationships did not count? That their relationships, the most treasured relationship, the most fundamental right, was not valid and could not be recognized in California? What did that mean to their life? What did they go through every single day because of that? That was a compelling moment.

OLSON

11:30:31
Another important moment was the other side offered initially eight or ten expert witnesses on the issues that we thought were important and the judge thought was important. We put our case on -- David and other members of our team cross examined before the trial many of those witnesses and turned them around so that they were giving testimony that was helpful to us.

OLSON

11:30:54
And the most dramatic illustration of that was David cross examining their principal witness Mr. Blankenhorn at the time of trial, and Mr. Blankenhorn at the end of a long cross -- the long, patient, beautiful cross examination by David Boies. You should be in a courtroom to watch David Boies cross examine an opposing witness. At the end of that cross examination, Mr. Blankenhorn acknowledged that we in America would be more true to our ideals the day that we recognize the right of gay and lesbian citizens to be married.

KAY

11:31:27
Therefore it was something fundamentally un-American in public.

BOIES

11:31:31
Exactly. Exactly. And I want to emphasize what Ted said about the important of our plaintiffs' testimony. The power of having them explain in simple, direct, unrehearsed terms, how they felt about the person they wanted to marry, why they wanted to be married, the importance of being married to their children, the hierarch their lives could have if their state recognized their equality.

BOIES

11:31:58
You couldn't sit in that courtroom and not be emotionally affected by that. Every single person in that courtroom was emotionally, visibly affected including the counsel for the defendants.

KAY

11:32:08
One of the arguments of supporters of Prop. 8 was basically that it was somehow an effort to preserve heterosexual marriage. That heterosexual marriage would be somehow threatened, damaged, diminished if gay and lesbians could marry as well. There was a moment in the trial where that argument seemed to crumble.

BOIES

11:32:29
Indeed. When the chief lawyer for the other side was asked by the judge, well what is that harm, and he sort of danced around it and obviously didn't have an answer. And the judge got more and more direct and a little cross because he wasn't getting an answer. And finally he said, Mr. Cooper, you've got to answer my question. And Mr. Cooper paused, thought and finally just said, I don't know. And that's so underscored, the fact that they did not have any evidence. And their own experts admitted that. And our experts came in and demonstrated the evidence was the contrary, that there was no harm, there could be no harm.

BOIES

11:33:10
I mean, if you think about it, it's a little absurd. I mean, what happily married couple do you know is going to decide to get a divorce because their gay neighbors are getting married? Or, I mean, if you talk about love struck young people who want to get married, how many of them are going to say, no we're not going to get married because our lesbian classmate, he's going to get married.

OLSON

11:33:29
In fact, I have to say this, that the joy that you see in the faces and in the hearts of gay and lesbian people getting married because they realize maybe more than the rest of us how much marriage means because they've been denied that opportunity. That seeing those faces have changed people's lives and strengthened the institution of marriage.

KAY

11:33:53
I'm Katty Kay of the BBC. You're listening to "The Diane Rehm Show." Let's go to the phones now to Mateas who joins us from Fishers, Ind. Mateas, thank you so much for joining "The Diane Rehm Show."

MATHIAS

11:34:07
Hello.

KAY

11:34:07
Hi.

MATHIAS

11:34:09
My name's actually Mathias. No big deal, but...

KAY

11:34:11
Oh, I'm terribly sorry.

MATHIAS

11:34:13
I wanted to ask if there is a case -- if you had to argue the other side, if there is a case at all that is not religious or Proposition 8?

KAY

11:34:27
That's a tough question probably for the two guests that I have in the room but let -- David, you want to try it?

BOIES

11:34:32
Sure. Actually I don't think it is such a tough question. One of the things that I pride myself on in terms of being a good lawyer is try to figure out what the best argument is on the other side that I can be prepared to meet it. In this particular case there simply wasn't an argument on the other side. The other side had a bumper sticker that said, marriage is between a man and a woman. That's not an answer to the question. That's not a policy. That's not a legal precedent. That's simply a conclusion.

BOIES

11:35:02
And all they had was that assertion because other than the religious belief, there simply wasn't any evidence that -- allowing gay and lesbian citizens to marry the person they love could harm anything. There was no evidence you could harm heterosexual marriage. There was no other conceivable thing that could be a problem with allowing people to form a happy, healthy, stable marital relationship.

OLSON

11:35:32
What they said over and over again, our opponent says, it's always been that way. But you could use that to deny people the right to marry someone of a different race. That's what the Supreme Court faced in 1967. Traditional definition of marriage, it's always been between a man and a woman. Traditional definition of marriage before the Civil War would not allow slaves to get married, would -- denied rights to women in a marital relationship. So the fundamental right is -- cannot be denied because it's always been that way.

KAY

11:36:05
Were you disappointed then when this went to the Supreme Court? The Supreme Court of the United States didn't rule on the merits of your case in particular, but there was a constitutional right then...

OLSON

11:36:18
Well, what happened is...

KAY

11:36:19
...for gays and lesbians to marry.

OLSON

11:36:20
What happened is that after this trial that you referred to, the District Judge in California, chief judge of the federal district court in San Francisco, wrote a 134-page opinion with findings and conclusions of law demolishing all the arguments on the other side and vindicating every argument that we had made.

OLSON

11:36:39
The proponents of Proposition -- at that point, the governor and the attorney general of California decided not to appeal. They agreed that Proposition 8 was unconstitutional.

KAY

11:36:49
And the licenses were reissued?

OLSON

11:36:51
No. The court stated the effect of its decision until it could be finally resolved in court. So there was -- but Proposition 8 had been declared unconstitutional. The governor and the attorney general did not appeal. The proponents of Proposition 8 appealed at that point. We made the argument that they had no right to appeal. They were not officials of the State of California. They had not been harmed by Proposition 8. In fact, the I-don't-know answer that David just referred to a few moments ago was that they didn't know of any harm that heterosexual marriage had suffered.

OLSON

11:37:22
So when it finally got to the Supreme Court, the Supreme Court held indeed that they did not have the right to appeal the district court decision striking down Proposition 8. And as a result of that, Proposition 8 was finally overturned. And two days after that decision, people in California were allowed to get married.

KAY

11:37:44
You're listening to "The Diane Rehm Show." We'll have more on our discussion on "Redeeming the Dream" after this short break.

KAY

11:40:01
Welcome back to "The Diane Rehm Show." I Katty Kay, sitting in for Diane. I'm joined by David Boies and Ted Olson in the studio. They are the authors of the book, "Redeeming the Dream: The Case for Gay Marriage -- The Case for Marriage Equality." It is the story of the overturning of Prop 8. We've had a couple of emails come into us, which I wanted to read to you both.

KAY

11:40:22
Chris writes, "Isn't the Windsor case," referring of course to the United States v. Windsor case that was handed down on the same day as yours, "Isn't the Windsor case a far more important precedent for the legal success of gay marriage across the country? Why do you say the Prop 8 case was a victory, when, in fact, you lost on the federal constitutional issue?" Ted?

OLSON

11:40:42
Well, we did not…

KAY

11:40:43
Give people -- quickly fill people in on the background of the Windsor case.

OLSON

11:40:47
Well, the Windsor case was the challenge to the federal defense of the Marriage Act case, which had been passed by people in Congress, overwhelmingly, who were afraid that gay marriage was coming, same-sex marriage was coming. And it prohibited recognition by the federal government of states that had lawfully permitted marriage between individuals of the same sex.

OLSON

11:41:10
That was struck down the same day. It was argued one day after we argued the Proposition 8 case in the Supreme Court. It was struck down as unconstitutional. It's a very important decision because the Supreme Court pronounced that the federal statute discriminated against gay and lesbian individuals. It branded them as second class. It took away rights of equality from them. It's a very, very important case.

OLSON

11:41:36
By the same token, the case of Proposition 8, because of that sweeping federal district court decision, based upon a day's worth of testimony and evidence and findings of fact and conclusions of the law, is equally important. Subsequent federal court decisions, striking down state laws as unconstitutional, prohibiting marriage between someone of the same sex, have relied on the Windsor case and they've relied on the decision in our case.

OLSON

11:42:02
It's -- the important thing to think about is not what -- is one case more important than the other case or is one set of lawyers more -- contributed more. The important thing is that we're all fighting for the same thing, for equal treatment for our gay and lesbian brothers and sisters.

OLSON

11:42:18
And the elimination of state sanctioned discrimination, which is when it's put in the Constitution, it's a license for the state and for individuals in the state to treat people as second-class citizens. That has got to end. We're all -- those of us who are fighting this battle, in different cases all across the country, are fighting for the same thing.

KAY

11:42:39
Okay. I have a slightly different question, but on the same theme. The country has moved with lightning speed, according to polls, both Republicans and Democrats, particularly young people, in favor of marriage equality. That's really what's led to the shift in the country, isn't it?

BOIES

11:42:58
I think that's right.

KAY

11:42:59
I mean, it was going to happen, inevitably.

BOIES

11:43:03
Well, I think it was going to happen eventually. I think the thing that's really driven it is the fact that a lot of individual gay and lesbian citizens, over the last several decades, including in times when it was not easy or perhaps even safe to do so, have come out and openly acknowledged their sexual orientation. That has compelled the rest of society to see them as they really are and to understand that they are our brothers and sisters, teachers, clients, sometimes children and parents.

BOIES

11:43:36
And that they deserve all the equal rights that everybody else has. So I think that that has been, in some sense, the most important driving force. But I think the timing of that was importantly affected by the legal cases. I mean, for example, without the Perry case we still would not have marriage equality in California. The Windsor case, very important case. The reasoning of the Windsor case is in some senses even more important than the case itself. But it would…

KAY

11:44:14
And some would argue it pushed more states to introduce marriage equality.

BOIES

11:44:16
And it -- and I think it has pushed more judges, but none of those states have yet -- where the federal judge has ruled, they've all been stayed, pending appeal. And without the Proposition 8 case you would not have had marriage equality in California for years. How many years? Nobody knows. I think it's important, also, just to be clear, that there was no loss -- I mean, Chris referred to a loss -- in the constitutional case involving Perry.

BOIES

11:44:48
There was no loss. There was a victory in the district court and that victory was preserved in the Supreme Court that did not express an opinion one way or the other, on the constitutional question.

KAY

11:44:59
Okay. Let's got to Cathy, who joins us from Burnsville, N.C. Cathy, you have an interesting question for our panelists.

CATHY

11:45:06
Oh, thank you. And thank you for taking my call. Yeah, it seems that much of the opposition to same-sex marriage comes from religious groups. And I was wondering about the idea of everyone who wants to join in a committed relationship get a civil union, which then gives federal and state rights. And then if you want to get married, you find a religious organization that will marry you.

OLSON

11:45:34
Well, the problem is that states have licensed and regulated marriage from the beginning of the republic because there are relationships involving children, when marriages break up there are property issues that are involved, there are tax concessions and tax breaks and tax incentives that are given with respect to marriage. It would be pretty impossible to untangle all of that. Marriage has been, from the beginning of the republic, a licensed by the state of a certain type of relationship.

OLSON

11:46:06
And now, you could wipe all that clear and say everybody would have the same thing, and then each religion would have its own imprimatur of whatever that relationship would be, but that's just not going to happen. As the Supreme Court has said over and over again, the states have regulated in the institution of marriage. And once you do regulate it you cannot deny that right to certain people because of who they are.

BOIES

11:46:31
I think the question underscores what's really going on here, which is that it is the fact that the state licenses marriages that makes it a constitutional right. Each religion has the right to define its own dogma. The First Amendment guarantees that. The First Amendment also guarantee, however, separation of church and state so that no religion can impose its dogma on other people. And what happens in the Proposition 8 case, is the state begins to regulate marriage. And when the state regulates marriage it has to do so in an equal way.

KAY

11:47:08
Okay. Cathy's question and your point about dogma get to another issue that a lot of our callers are calling in about. Ken writes to us, "Where does it end? Will your guests fight for polygamy? Also why can't the gay community use a different word, other than marriage, for their union? Instead of changing something that's established, why not do their own thing?" That last part is a little bit what you've just been speaking about, David. Ted, talk to me about the issue. And we have other people who have emailed in saying, "Why should polygamy or polyandry not be permitted as well?"

OLSON

11:47:37
Well, first of all, let me talk about the name. If you were to say you could have the right to travel, to vote, to participate in democracy, but you cannot call yourself a citizen of the United States, everyone would understand that that is a sharply different thing. And our opponents argued that marriage was a special relationship. It's regarded in our society as a special relationship. People don't celebrate their civil unions. There's no parties or anniversaries or that sort of thing.

OLSON

11:48:09
It's a special status in this country. So when the state is saying that status and that recognition is going to only be accorded to some people and denied to others, that's when you have constitutional questions. With respect to polygamy, that's an entirely separate issue. The courts -- the Supreme Court of the United States has talked about that polygamy presents issues about the domination of females. It presents difficult problems with respect to children and what happens when the polygamist relationship bears -- wears out or gets dissolved.

OLSON

11:48:44
There are a number of social reasons why polygamy presents a problem for the state. But as we discussed earlier, whenever anybody said, well, what are the social reasons, the state's interest in prohibiting gay and lesbians from that same institution of marriage, our opponents keep saying, we don't know. Besides, polygamy is a thing -- is a choice by individuals to have a certain relationship or not. Sexual orientation, as we proved during the trial, is something that is determined as a result of your chemistry, biology, genetics and that sort of thing.

OLSON

11:49:17
You don't have a choice about your sexual orientation. And so you're taking people, as individuals, and excluding them from access to a privileged situation in our society. That and polygamy is not the same thing at all.

KAY

11:49:31
I think it's the absence of a harmful impact, either on those who are in the relationship or those who are not in the relationship, but a part of broader society, that seems to be the really defining difference between polygamy and what you've been fighting for.

BOIES

11:49:47
I think that is the practical distinction. I also think that there's a legal distinction, in the sense that what's important under the equal protection clause and due process is that everybody be treated equally. If you prohibit anybody from having more than one spouse, everybody's being treated equally. If you prohibited anybody from being married, everybody would be treated equally. But if you allow some people to be married and some people not to be married, that's when the unequal treatment comes.

KAY

11:50:17
Let's go to John, who joins us from Denton, Texas. John, you've joined "The Diane Rehm Show." Thanks for calling in.

JOHN

11:50:24
Thank you. I love the buzz words that fly around here. We've got diversity, equality and Constitution. I'll focus those three.

BOIES

11:50:37
Yeah, good buzz words.

JOHN

11:50:38
Constitution, there's no -- there's nothing in the Constitution that says anything about marriage that I've read. So it's implied, it's inferred. And what you have (unintelligible) completely expressed. And the state has the right, under the Constitution, if it's something not directly prohibited by the Constitution, the state has a right to make decisions about that. So you have the will of the people completely denied, overridden by social engineering people that use words like diversity and equality to push their agenda.

JOHN

11:51:20
But it has nothing that's any resemblance in reality. It's not the will of the people. And then the other guy was talking about Asians and Latinos. Well, if he knew anything about culture, he'd know that most Asians and Latinos are not pro-homosexual marriage. So respond to that.

KAY

11:51:38
Okay. John, you're a brave man taking on two top lawyers on the program. Ted, I'm going to let you respond to John.

OLSON

11:51:45
Well, the Constitution very definitely does say things about equality. The Declaration of Independence started -- which is the start of this country -- "All men are created equal and endowed by their Creator with certain unalienable rights." That's in the Constitution. It's in the 14th Amendment, the protection of equal laws. The equal protection clause stands for the right of individuals to be governed by equal laws.

OLSON

11:52:14
And the 14th Amendment also guarantees the right to due process, which includes not being denied fundamental rights without due process of law. And the United States Supreme Court has held 14 times that marriage is a fundamental right. It's a matter of our liberty, it's our privacy, it's our association. It's who we define ourselves. It's the most fundamental right of all, the Supreme Court has said.

OLSON

11:52:39
So now, if you accept that, that we must treat people equally, which I hope John, in Texas, does believe in, and if you believe what the Supreme Court has said about fundamental rights, you cannot take that right to marry against prisoners who can't procreate, people who wish to have a divorce, wish to have contraception and all of those things, if you are going to then deny that equality to that fundamental right, to individuals because of who you are, you're manifestly and clearly violating the Constitution.

KAY

11:53:12
I'm Katty Kay. You're listening to "The Diane Rehm Show." David, when you hear criticism like we've just heard from John, in Texas, and it reflects to some extent an anxiety about a changing culture…

BOIES

11:53:24
Yes.

KAY

11:53:25
…about things happening legally that people feel uncomfortable with, a sense that the world around you is not what you think it's going to be or should be, how do you try to change people's minds?

BOIES

11:53:43
I think that's a very important question because I think it's important not only to vindicate people's legal rights, but I think it's very important that people in society accept equality. And we've gone through this every time there's been any movement towards equality. As Ted says, equality is in our Constitution. It's in our Declaration of Independence. But it's something that we, in the early days of the republic, didn't really practice. When the Constitution says, "We, the people of the United States," it really means, we, white male property owners.

BOIES

11:54:21
And every time we've tried to expand the "we," from the original limited set, it's upset people. It's upset people when we expanded it racially. 1967, when the Supreme Court held that the Constitution forbid states from banning interracial marriages -- 16 states had bans on interracial marriage.

KAY

11:54:47
And you had religious groups opposed to the lifting of that ban. You had religious groups, of course, lobbying very hard to have the ban lifted. But you did have religious groups who said that there was something immoral…

BOIES

11:54:57
Absolutely.

KAY

11:54:58
…about a black person and a white person marrying.

BOIES

11:55:00
Absolutely. They said the Bible says God created these different races and if God had intended them to intermarry he would have not separate them. You had all sorts of arguments that were made on religious grounds. And it upset people, it upset a lot of men when women were given equal rights. And so we've had this…

KAY

11:55:19
They're just scared, David.

BOIES

11:55:21
They're scared. Well, people are scared. They're scared of change. And particularly if you're a white male and you see more and more of your privileges being given to other people, sometimes that can make you insecure and feel uncomfortable. And I think we have to address that. We have to recognize that. And we have to try to explain to people that there isn't a threat. That the whole country and everybody is made better off from equality.

BOIES

11:55:46
I mean, men are better off because women have rights. Whites are better off because African Americans have equal rights. Straight people are better off because gay and lesbian citizens have equal rights.

KAY

11:55:57
Okay. I want to finish by reading one email from Scott, because it looks forward. "Could the guests outline the possible time table for the next marriage ruling by the Supreme Court? My husband and I live in Florida, where it's unlikely that the state ban will be repealed or struck down sooner than a nationwide ruling." Ted, we have just a minute left on the program. What is the direction we're moving in?

OLSON

11:56:17
Several -- 12 federal judges have declared state laws prohibiting marriage between persons of the same sex unconstitutional. Several of those have been argued in appellate courts. David and I are part of the team challenging Virginia's law, which prohibits marriage between persons of the same sex. That was argued in the United States Court of Appeals for the 4th Circuit. I think that one of those cases will probably get on the Court's docket this coming year.

OLSON

11:56:45
The year that -- for the Supreme Court that starts in October and might possibly lead to a decision by this time next year. We could be back again a year from now. David and I hope that the Virginia case will be the one, but who knows.

KAY

11:57:00
The book is "Redeeming the Dream: The Case for Marriage Equality," is the story of Prop 8. David Boies, Ted Olson, thank you so much for joining me in the studio.

OLSON

11:57:09
Thank you, Katty.

BOIES

11:57:09
Thank you very much. Thank you.

KAY

11:57:09
Thank you all so much for listening. I'm Katty Kay. We'll be back with you tomorrow.
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