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February 26, 2010

BILL MOYERS: Welcome to the JOURNAL.

You may not believe this, but the two marquee lawyers who fought each other all the way to the Supreme Court to decide whether Al Gore or George W. Bush would become president are at it again. But this time they're fighting as allies to defend marriage equality.

It's true. Ted Olson, a conservative, and David Boies, a liberal, are in the middle of a case that, win or lose, they expect, will wind up at the Supreme Court, just like Bush v. Gore. The former adversaries have united in support of core American values: diversity, equality and tolerance. They're key players in one of the most important civil rights trials of the last decade. It's a pivotal legal action that could change our society, but which has escaped the attention of much of the country.

Here's the story so far: in May 2008, California joined Massachusetts to become the second state in the union to sanction gay marriage. But opponents immediately launched a movement and succeeded in getting on the ballot a voter initiative called Proposition 8, to overturn that decision. While the nation focused on the presidential race between Barack Obama and John McCain, millions of dollars poured into California to campaign for or against Proposition 8. On Election Day, by a 52-48 margin, voters rejected same sex marriage and ordered the state constitution amended to define marriage as the union between one man and one woman. A year later 2009, the amendment's constitutionality was upheld by the California Supreme Court. But David Boies and Ted Olson filed a legal challenge in federal court on behalf of two same sex couples - two men, two women - each of whom had been denied the right to marry.

Here is just some of what they're up against - a media campaign that portrays same sex marriage as a moral crisis of biblical proportions.

WOMAN: There's a storm gathering.

MAN: The clouds are dark, and the winds are strong.

WOMAN #2: And I am afraid.

MAN #2: Some who advocate for same sex marriage have taken the issue far beyond same sex couples.

MAN# 3: They want to bring the issue into my life.

WOMAN #3: My freedom will be taken away.

WOMAN #4: I'm a California doctor who must choose between my faith and my job.

MAN #4: I'm part of a New Jersey Church group punished by the government because we can't support same-sex marriage.

WOMAN # 5: I'm a Massachusetts parent helplessly watching public schools teach my son that gay marriage is okay.

WOMAN #6: But some who advocate for same sex marriage have not been content with same sex couples living as they wish.

WOMAN #7: Those advocates want to change the way I live.

WOMAN #8: I will have no choice

MAN # 5: The storm is coming.

BILL MOYERS: The trial began in January but unless you were inside the courtroom in San Francisco's federal district courthouse, there was no other way to watch the proceedings, so two filmmakers in Los Angeles came up with an ingenious alternative. Using the trial transcripts and other reporting, plus a cast of professional actors, they turned the case into a TV courtroom drama. Every day of the proceedings has been reenacted on their website,

AN ACTOR PORTRAYING MR. BOIES: Your honor, we call as our second witness, Mr. Paul Katami.

BILL MOYERS: Here in this excerpt, the actor portraying plaintiff Paul Katami tells the court that he and Jeff Zarillo, his partner of nine years, just want to enjoy the same status as other married people.

AN ACTOR PORTRAYING PAUL KATAMI: I shouldn't have to feel ashamed. Being gay doesn't make me any less American. It doesn't change my patriotism. It doesn't change the fact that I pay taxes, and I own a home, and I want to start a family. But, in that moment, being gay means I'm unequal. I'm less than. I am undesirable. I have been relegated to a corner. I don't think of myself as someone who needs to be put in a corner and told that, "You're different. It's not for you." Well, it is for me.

BILL MOYERS: Kristin Perry has been with Sandra Stier for ten years. They're raising four sons from previous relationships. In the recreation of the trial, the actress playing Perry was questioned by counsel.

AN ACTOR PORTRAYING MR. OLSON: What does the institution of marriage mean to you? I mean, why do you want that?

AN ACTRESS PORTRAYING KRISTIN PERRY: Well, I have never really let myself want it until now. Growing up a lesbian, you don't let yourself want it, because everyone tells you you're never going to have it. So in some ways it's hard for me to grasp what it would even mean. I do see other people who are married and I think that that's what it looks like, that you are honored and respected by your family. Your children know what your relationship is. And when you leave your home and you go to work, or you go out in the world, people know what your relationship means.

BILL MOYERS: Go to our site at and we'll link you to It's fascinating. Testimony is completed but the trial goes on. Final arguments will take place in the coming weeks. Then the judge will make his ruling, perhaps sometime this spring. Whichever side loses will no doubt appeal all the way to the Supreme Court.

With me now are the real-life attorneys for the plaintiffs in this landmark case. David Boies is one of the nation's preeminent trial lawyers. He's founder and chairman of the law firm Boies, Schiller & Flexner. In addition to Bush v. Gore, he's perhaps best known as the Justice Department's special trial counsel in its successful antitrust suit against Microsoft.

Ted Olson is a partner in the Washington office of the law firm Gibson, Dunn & Crutcher. He was president George W. Bush's solicitor general, and acted as the government's principal advocate in the Supreme Court. During the Reagan administration, he served as Assistant Attorney General. Welcome to both of you.

TED OLSON: Thank you, Bill.

DAVID BOIES: Thank you, Bill.

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?

DAVID 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. I think this is not a liberal or conservative issue. It's not a Republican or Democratic issue. I think 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.

I think that conservatives and liberals alike have an interest in seeing the rule of law applied to everybody. So, I think that this is, although sometimes people say that they're surprised to see the two of us together, I don't really think they ought to be surprised. Because I think this is something that both conservatives and liberals ought to unite behind.

BILL MOYERS: But you have surprised many people. As 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. And your own friend, your good friend former Judge Robert Bork. He has called same sex marriage a judicial sin. And 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 let's talk about it," what would you do to justify the position you have taken that he calls defending a "judicial sin."

TED OLSON: I would like to talk to Judge Bork about this, a man who I have great respect for, and whose opinions I would listen to. And, I think the more that people understand that gay and lesbian individuals wish to have the same loving relationship that other individuals do. And that Proposition 8 in California says their relationship isn't recognized by the state. The harm that that does to those loving individuals, who are our fellow citizens -- they are our doctors, our lawyers, our neighbors, our friends, our coworkers -- we are doing great harm by discriminating against people.

And I think the more people hear what we have to say, what David and I have to say, the more people will understand that. 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. And other people will ask, "Why are you doing this? What is your explanation?" And 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.

BILL MOYERS: 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?

TED OLSON: We're not advocating any recognition of a new right. The right to marry is in the Constitution. The Supreme Court's recognized that over and over again. We're talking about whether two individuals who will be -- should be treated equally, under the equal protection clause of the Constitution. The same thing that the Supreme Court did in 1967, which recognized the Constitutional rights of people of different races to marry.

At that point, in 1967, 17 states prohibited persons from a different race of marrying one another. The Supreme Court, at that point, unanimously didn't create a new right, the right was the right to marry; the Supreme Court said the discrimination on the basis of race in that instance was unconstitutional.

BILL MOYERS: But the voters in California spoke very clearly, 52 to 48. 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?

DAVID BOIES: If you didn't tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn't need a constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, "This is democracy. But it's also 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 82 percent of the people may think that. They can't say that women aren't allowed to vote, or are not allowed to work in the workplace, or not allowed 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. And remember, 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. And what the Supreme Court has said is that even a democratic-elected legislature in Wisconsin cannot decide by majority rule that marriage scofflaws. People who don't pay their child support, who abuse their children, abuse their wives, cannot get remarried again.

They said marriage is so fundamental that you can't take it away, even for people who have abused an initial marriage. Missouri, the legislature, democratic-elected legislature voted majority rule, overwhelmingly, that imprisoned felons could not get married. Supreme Court says, "No, even though they can't live together, they can't be together, marriage is such a fundamental human right that you can't take that away."

BILL MOYERS: But what your opponents are saying now 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. That's the argument-

DAVID BOIES: But what the Constitution says is that every citizen gets equal protection of the laws. It doesn't just say heterosexuals.

BILL MOYERS: So, this is the 14th Amendment you're invoking-

DAVID BOIES: The 14th Amendment.

BILL MOYERS: -in this case.

DAVID BOIES: The 14th Amendment. And remember, the 14th 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 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.

And 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.

BILL MOYERS: So, you're both comfortable invalidating seven million votes in California?

TED OLSON: Well, this happens when the voters decide to violate someone's constitutional rights. David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don't need 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, the voters have decided, because they 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 Chinese, a Chinese person from having any kind of business in California, or getting married. Those kind of votes are not acceptable if they violate fundamental constitutional rights.

BILL MOYERS: But you're going up not only against the voters of California, the majority, but you'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 quote, "a legal union between one man and one woman." And even declared that states need not recognize the marriages, the same sex marriages of another state. The President signed this. President Bill Clinton signed this. And you want to overturn not only the voters of California, but the Congress and the President of the United States.

DAVID BOIES: But remember, that happens every time the Supreme Court declares a law unconstitutional. The Supreme Court in a case that Ted argued just declared certain restrictions on the ability of corporations to participate in political contests unconstitutional. They were overruling the democratic-elected will of the Congress of the United States. That happens every single time the Supreme Court holds a law unconstitutional. And it was the power to hold laws unconstitutional that was given to an independent judiciary for the specific purpose of protecting minority rights against majority abuses.

TED OLSON: The Congress and the President of the United States 50 years ago made it illegal for someone who is a 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 an organization that -- those sorts of things happened.

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."

BILL MOYERS: Well, I'm leading up to a point that seems crucial to me in the whole history of the Supreme Court, which is at what time does it take on public opinion?

I mean, for example, roughly 40 states have laws banning gay marriage. In other words, you would be disenfranchising the voters of, not just California, and not just the Congress, if you go this route. And isn't it risky to ask the court to invalidate that much public opinion before the public is really ready for it?

DAVID BOIES: And 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 of the United States, believed interracial marriages were wrong. That's a much higher percentage than opposes gay and lesbian marriage in this country today.

Every time the Supreme Court overrules as unconstitutional an act of Congress, they are overruling a decision that applies to every state in the union. And they do it because the Constitution commands that that happens.

When you're dealing with matters of human rights and civil rights, our Constitution and our history is that you don't deprive people of those rights simply based on majority rule. I would also say that 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.

BILL MOYERS: Towards supporting same sex marriage.

DAVID BOIES: Gay and lesbian-

BILL MOYERS: But here's-

TED OLSON: Supporting equality.

BILL MOYERS: Equality, all right.

TED OLSON: Equality for people.

BILL MOYERS: But 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.

And if you go to the Supreme Court and lose, you will actually set back the cause of equality in marriage for years. So, my question is, why did you go against the wishes of so many in the gay community who didn't want you to do this?

TED OLSON: Well, and there are several answers to that. In the first place, someone was going to challenge Proposition 8 in California. Some lawyer, representing two people, was going to bring this challenge. We felt that if a challenge was going to be brought, it should be brought with a well-financed, capable effort, by people who knew what they were doing in the courts.

Secondly, 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?"

BILL MOYERS: You've clearly read Martin Luther King's letter from a Birmingham jail.

TED OLSON: I was going to say the very next thing. 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, "The battles for civil rights are won ultimately by people fighting for civil rights."

And one more thing. When the Supreme Court had made the decision in Loving versus Virginia in 1967, striking down the laws of 17 states that prohibited interracial marriage, now it's only what? 40 years later? 40 years later we think that's inconceivable that Virginia or some other state could prohibit interracial marriage. It's inconceivable. 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."

BILL MOYERS: Did you notice that just the other day, the new Governor of Virginia quietly signed an order removing the protection of gay workers, gay state workers, from discrimination. Did you see that?

TED OLSON: I saw it. And I voted for that Governor. And I think that was a wrong decision. And I suspect a court's going to strike it down. And someone's going to say, "Well, how can you strike down a measure enacted by the Governor who was just elected by all the people." And the courts will say, "Well, we have to do it. That's why we are courts."

BILL MOYERS: In 1973 when the court ruled in favor of women's reproduction rights, the country, many people weren't ready for it. There was a huge backlash. And today women's reproductive rights are threatened because that political movement that occurred, grew up after Roe versus Wade has become so powerful, women are now threatened in their choice."

DAVID BOIES: Well, I don't think they're any more threatened now than they would have been if you hadn't had Roe against Wade. I mean, I think that what you can say is that you have to sometimes continue to fight these battles over and over again. But that's no reason not to fight them and try to win them when you can.

BILL MOYERS: So, what did you tell the gay activists who came to you?

DAVID BOIES: For one thing, the gay activists that came to me and talked to me were not nearly as impassioned as you suggest. I mean, 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's still some people that are very worried about what the Supreme Court will do. And I sympathize with that. I think these are people who have dedicated their lives to promoting gay and lesbian rights. And they are people who you need to listen to. But I think one of the things that I've always said to them is what Ted just said here. Which is, this case is going to be brought. You can't keep people from litigating.

And if it's going to be brought, don't 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? And I think anybody that saw the case that we put in, in California last month, can see that we've built a record there that you cannot look at that record 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. And we think we've made a very good record in that respect.

BILL MOYERS: Tell me about the two couples that you are representing.

DAVID BOIES: Right, just great.

BILL MOYERS: These are the real people behind these legal abstractions, right?

DAVID BOIES: These are the real people.

BILL MOYERS: Tell me about them.

DAVID BOIES: And 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.

TED OLSON: The lesbian couple are raising four boys. They're outstanding young men. They've been together for many, many years. The gay male couple have 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.

They have to explain every day. One of our plaintiffs said, "I have to come out every day. I have to explain who this partner, my partner, it's not a partner. They call it a domestic partnership in California. It's not a business deal. It's a loving relationship between two people who care about one another, who are committed to one another." In the first place, they're being denied the happiness that you and I have, and David has.

And in the second place, we're hurting them enormously and hurting ourselves by treating a class of our citizens as different and as less worthy of respect. It is not American. It's not what is a part of our culture. It's damaging to America to take a class of our citizens who are every bit as contributors to our society. They're taxpayers. They're caring, loving, law-abiding people. And to say, "We don't recognize." You read the language of Proposition 8. "Your relationship is not recognized. It's a second-class citizenship."

BILL MOYERS: There was a moment when you had your clients on the stand that you introduced a video that was used by the opponents of gay marriage, the supporters of Proposition 8. Let me show you that and see and talk about it.

CHILD: Mom, guess what I learned in school today.

MOM: What, Sweetie?

CHILD: I learned how a prince married a prince and I can marry a princess.

PROFESSOR RICHARD PETERSON: Think it can't happen? It's already happened. When Massachusetts legalized gay marriage schools began teaching second graders that boys can marry boys. The courts ruled parents had no right to object.

WOMAN: Under California law, public schools instruct kids about marriage. Teaching children about gay marriage will happen here unless we pass Proposition 8. Yes on 8.

DAVID BOIES: That was a scare tactic. That was something they knew they couldn't fight on the merits of the case, as to whether gays and lesbians should have the same right to marry. So they tried to put it in a context of saying, "You've got to worry about what your kids are going to be taught in school." And that had, first, nothing to do with Proposition 8.

The second thing is "Protect our children." Protect our children from what? Now that was a relatively mild ad. And you've got to take it in the context of some of the other ads that were being put out, okay? That talked about protecting children because homosexuals were sexual deviants that were going to pray on children. They were going to have underage sex. They were going to be carriers of disease.

These were ads put out by official proponents of Proposition 8. So, when you see the tag line, "Protect our children." Ask yourselves, "Protect your children from what?" The third thing that you have to keep in mind about this ad is that the underlying message is that boys shouldn't marry boys, men shouldn't marry men. Women shouldn't marry women. What we're saying is there ought to be a class of people that is excluded from marriage. And that's something that we think is fundamentally wrong as a matter of constitutional policy, but makes no sense if you believe in marriage.

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?

BILL MOYERS: You've always had a respect for your adversary in the courtroom. And this adversary was one of your friends. Charles Cooper, right?


DAVID BOIES: That's right.

BILL MOYERS: You served with him in the Reagan Justice Department. What was the most effective argument he made against you?

TED OLSON: Well, let me say something. I have great respect for him. He's a very fine lawyer. And he had a very fine group of lawyers and they were doing their best. You asked me the most effective thing that happened on the other side? I will, 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 colleagues differently and deny them equality.

But what really happened, which was a very eye-opening event, during the course of the trial, during one of the earlier proceedings. The judge in our case 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. "What damage would be done to the institution of marriage if we allowed this to happen?" And my opponent said, finally, he had to answer it truthfully. He paused and he said, "I don't know. I don't know." That to me sums up the other side. They say the traditional definition of marriage, but nothing by allowing the two couples that were before the court or others like them to engage in a relationship with their partner where they can be treated as an equal member of society hurts 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." There is no evidence to support a basis for this prohibition.

BILL MOYERS: And yet your opponents kept coming back to the argument that the central reason for Proposition 8, and I'm quoting here, is it's role, quote "in regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation."

TED OLSON: We have never in this country required an ability or a desire to procreate as a condition to getting married. People who are at 70, 80, 90 years old may get married. People who have no interest in having children can get married.

And what that argument does is tip it on its head. 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." That marriage is for the benefit of the state. Freedom of relationship is for the benefit of the state." We don't believe that in this country. We believe that we created a government which we gave certain authority to the government. The government doesn't give us liberty, we give the government power to a certain degree to restrict our liberty, but subject to the Bill of Rights.

So, our fundamental differences there, no one's stopping the procreational function of people that wish -- heterosexual people to get married and have all the children that they want. No one's stopping that. It is simply allowing people that have abiding affection for one another to live a civil life as your next-door neighbor. The same way you are.

DAVID BOIES: The most important thing is that there's no connection between gay and lesbian marriage and procreation. It doesn't limit procreation. It doesn't discourage heterosexual marriage. In fact, it allows gays and lesbians to raise their children. They're talking about the children of heterosexuals, okay? Those people aren't being harmed. They're ignoring the children of the gay and lesbian couples, who even the defendants in this case admitted were being harmed by Proposition 8.

BILL MOYERS: One of the opposing lawyers, and I can see why he would say this, credited the two of you with putting on a spectacular show. But he said your evidence was irrelevant. Quote "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." That, he said, is the case.

DAVID BOIES: There is no evidence, no evidence. They couldn't point to any. And all the evidence is to the contrary. As to whether heterosexual couple raises better children than a same sex couple. The evidence, the scientific evidence has been studied over and over again is 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.

TED OLSON: The leading expert in the world about welfare of children from Cambridge-

DAVID BOIES: Right, yeah.

TED OLSON: -testified that children do as well in a same sex environment, where both of their parents are the same sex, just as well as opposite sex parents. And it's important to recognize California recognizes the right of same sex couples to live together, to have children, to adopt children, or conceive of children in various ways that are available these days. There's 37,000 children or something.

DAVID BOIES: In California. In California.

TED OLSON: In California with same sex couples. And the evidence shows that those children are doing fine, just fine. Compare an opposite sex couple with an abusive father. With a same-sex loving couple. Quality of parenting is not based upon gender or sexual orientation. It is in the quality of ones heart.

BILL MOYERS: 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 got married in that interim?

DAVID 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. There are gay and lesbian, valid marriages in California. 18,000 of them.

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.

BILL MOYERS: In this window. If you didn't take the-

DAVID BOIES: If you if you didn't get married in that window, you don't get married. 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.

BILL MOYERS: Because of?

DAVID BOIES: Because of Proposition 8.

BILL MOYERS: Proposition 8. So, if any one of the 18,000 couples decided, which is quite normal in our society today, they don't want to stay married. They couldn't marry again?

DAVID BOIES: That's right.

TED OLSON: And they couldn't marry the same person again.

DAVID BOIES: They couldn't even get remarried.

TED OLSON: So, you have got various different classes of persons. People 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, but can be married. So, California's got what we call a crazy quilt system of laws that treat different people in different categories.

BILL MOYERS: I don't know anything about either of your religious backgrounds or faiths. But 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, and I'm quoting, "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."

TED OLSON: We respect people's individual, their 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 conduct, sexual conduct, intimate sexual conduct between persons of the same sex is evil, it's a sin, it's wrong, it's unnatural. The Supreme Court of the United States just a few years ago struck down laws that prohibited that conduct as violating the fundamental rights of individuals to have intimate relation -- intimate sexual relationships with one another. So-

BILL MOYERS: This was Lawrence versus Texas when they-

TED OLSON: Lawrence-

BILL MOYERS: When they said that - sodomy is not unconstitutional.

DAVID BOIES: That's right.

TED OLSON: Yeah, right. And struck down earlier decisions and many laws go back to the point you made before. The laws of many, many states that prohibited intimate sexual conduct between persons of the same sex. Now people are saying that because people exercise that constitutional right, that the Supreme Court has already upheld, because they do that, they can't get married.

Well, people can get married and have that fundamental right to get married. And they have the fundamental right to engage in same sex behavior. We recognize that in this country now. To deny people the right to that marriage, because of that constitutional behavior is wrong.

BILL MOYERS: So, is the religious doctrine wrong?


DAVID 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 anti-establishment clause part 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 of. That's the separation between church and state that our Constitution has always guaranteed.

BILL MOYERS: You introduced in the trial some video of supporters of Proposition 8, clergy and others, saying that that same-sex marriage is wrong. Let me show you some of that video.

PASTOR DUDLEY RUTHERFORD: Second of all, the polygamists are waiting in the wings because if a man can marry a man and a woman can marry a woman based on the fact that you have the right to marry whoever you want to marry, then the polygamists are going to use that exact same argument and they're probably going to win. And then I think about the damage done to our children and our children are going to be taught in the schools that gay marriage is not just a different type of a marriage; they're going to be taught that it's a good thing. And, of course, we're destroying the pillar of our society.

YVETTE SCHNEIDER: Let's say sexual orientation or sexual attractions were the basis upon which we were allowed to marry. Then pedophiles would have to be allowed to marry 6, 7, 8 year olds. The man from Massachusetts who petitioned to marry his horse after marriage was instituted in Massachusetts. He'd have to be allowed to do so. Mothers and sons, sisters and brothers, any, any combination would have to be allowed.

BILL MOYERS: Why did you invoke that on your side?

DAVID BOIES: Sure. Because what we wanted to do is we wanted to make explicit how totally absent there was in any logic or factual underpinning for the arguments in favor of Proposition 8. It had nothing to do with marrying people who are six years old. And nothing to do with marrying horses. And nothing to do with polygamy. And everybody knew that.

It had nothing to do with protecting children. It had nothing to do with teaching children in schools as to what was religiously right or religiously wrong. It simply had to do with permitting people who loved each other to get married, regardless of their sexual orientation.

And so, we played that, because we wanted to make explicit exactly what it was that the people supporting Proposition 8 were saying to the voters. Now, we said we'd prove three things, during the trial.

We said we'd prove that marriage was a fundamental right. Supreme Court has held that. We said we would prove that preventing gays and lesbians from marrying harmed them and harmed their children. And their own experts, the defendant's own experts admitted that. And we said we would prove that permitting gay and lesbian marriage would not in any way harm heterosexual marriage. And we proved that also. And even their own experts could not come up with any evidence that heterosexual marriage or the institution of marriage would be in any way harmed by permitting gay and lesbian-

TED OLSON: And I also say -- another point of showing that ad is to show that those kind of arguments were the same kind of arguments against interracial marriage. Allowing the races to mix will cause the dilution of the race. Allowing-

DAVID BOIES: And threaten the children.

TED OLSON: And threaten children. Oh, absolutely. Those same arguments were made. Allowing women to vote, get allowing women to leave the home to go into the workplace is going to destroy our fundamental pillars of society. Those same arguments are made over and over and over again. The sky will fall. And we're not, we're talking about California already recognizes individuals who are of the same sex to live together, to have children, to have virtually all of the rights, except they can't call themselves married.

Well, that -- not allowing them to call themselves married hurts themselves and hurts their children and hurts their status in their communities. But if we allow them to call themselves married all these terrible things were going to happen. It's ridiculous.

BILL MOYERS: Couldn't you have just 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, would you?

TED 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 will understand so much more the damage that's done to people that 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." So, it is a little bit like second class. 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.


DAVID 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. Because 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.

BILL MOYERS: 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?



BILL MOYERS: So, if you go to the Supreme Court, Ted, you're going to run smack up against some of your best friends. I mean, as you know, when you mentioned that 2003 case, when the court outlawed Texas laws against sodomy 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 quote "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 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." How, if you get to the Court, are you going to deal with your friend Justice Scalia?

TED OLSON: Well, and 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. So, it's, my friends are not on one side or the other. Secondly, Justice Scalia, he 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.

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 some people don't want a homosexual to be a teacher in a school. Well, I don't think today 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.

BILL MOYERS: You know that some of your friends and long-time 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, right? Do you understand that they're saying that?

TED 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's a lot of people in this country who are, have sexual orientation that is different than ours. Take so, 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. Take the time then if you're going to be a citizen 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.

BILL MOYERS: But is he practicing judicial activism? You would support it, I know. But is he pract -- have you won him over to your side?

DAVID BOIES: Have I won him over from the dark side of -- 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 the point that's really important here when you're thinking about judicial activism is that this is not a new right. Nobody is saying, "Go find in the Constitution the right to get married." Everybody, unanimous Supreme Court, says there's a right to get married, 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 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 rights.

BILL MOYERS: Ted Olson, David Boies. We should do a series. Discussing the court and law. Thank you both very much for being with me.

TED OLSON: Thank you.

BILL MOYERS: Thank you.

DAVID BOIES: Thank you.
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