American Foundation for Equal Rights

Conference Call: Supreme Court to Hear Prop. 8 Case

AFER lead co-coucil Ted Olson and David Boies, along with co-founder Chad Griffin, executive director Adam Umhoefer and plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo host a conference call for members of the media to discuss the U.S. Supreme Court’s announcement that it will hear AFER’s case challenging Prop. 8

Rough Transcript

Operator:  Good afternoon, my name is (Jay).  I’ll be your conference operator today.  At this time, I would like to welcome everyone to the American Foundation for Equal Rights (inaudible) conference call.  All lines have been placed on mute – pardon me – all lines have been placed on mute to prevent any background noise.  After the speakers’ remarks, there will be a question and answer session.   To ask a question today, simply press the star then the number one on your telephone keypad.  To withdraw your question please press the pound key.  Thank you very much.  I would now like to hand the call over to Mr. Adam Umhoefer, executive director of the American Foundation for Equal Rights.  Please go ahead, sir.

Adam Umhoefer:  Thank you, (Jay).  And – and thank you everyone for joining us on this exciting day.  We’ll dive right in here today.  On the call we have our lead co-counsel, Ted Olson, David Boies.  We have the four plaintiffs represented in the Ferry case.  We have AFER founder and board member and current president of the Human Rights Campaign Chad Griffin with us.  And we also have the city attorney of San Francisco, Dennis Herrera who – who joined us in this case.  And without further ado, Ted Olson.

Ted Olson:   Yes, this is Ted Olson speaking.  I also have with me Ted Boutrous, who’s been a colleague of mine at – at Gipson Dunn and has been in this case right from the beginning.  And he has some information about the case that – that I may not have.  So you might hear your voice also.  I’m – also on the call is David Boies, I’d like to just give David a chance to – I’ll let you hear his voice.  And then – and then we’ll have a moment or two when we hear from the plaintiffs who are also on this call.

David Boies:  Sure, this – this is David.  Thank you, Ted.  We are now literally within months of getting a final resolution of this case that began three and a half years ago.  I think we are all encouraged and excited about the prospect that we will finally get a decision on the merits with respect to marriage equality.  This is a momentous case.  I think the attention that it has already received by the Supreme Court indicates their recognition of the importance of the petition.

Ted Olson:    And this is Ted Olson again.  I think that it is going to be so important for the United States Supreme Court to address the marriage here and we have, as most people on the call know, we have a 134 page exhaustive opinion from the Federal District Court who heard from all of the witnesses and expert witnesses testifying about the issues in this case, what it meant for California to withdraw the rights to get married to our gay and lesbian brothers and sisters; to be treated unequally.  We have an exhausted record upon which to build this case and it will be an education for the American people.  We are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.

And before we start answering questions, I wanted to introduce Kris and (Sandy) and (Jeff) and (Paul) who are on this phone – the plaintiffs in this case who have been with this case from the beginning, courageous individuals who helped us and help – allowed us to help them test the constitutionality of Proposition 8.  They’ve been stellar participants in this case right from the beginning.  And I know their voices are important for you all to hear.  I’ll let you just take over, introduce yourself and – and please go ahead, Kris, (Sandy), (Jeff) and (Paul).  Make whatever statement you’d like to make.

Kris Perry:           Thanks, Ted.  This is Kris Perry speaking. And I want to say on behalf of (Sandy) and I that we were full of anticipation today in hope that the Supreme Court would see – see their way to do the right thing on behalf all of the couples in California that have waited for so many years for the restoration of fairness and equality.  There is nothing more important than a state ridding itself of discriminatory laws that harm citizens every day.  We couldn’t be happier with the possibility of the Supreme Court continuing the track record of – of restoration of fairness and equality.  And we’re elated with the possibility of great things happening.

(Sandy): And this – this is (Sandy) and I just share Kris’s excitement over – over this latest – the news from the Supreme Court.  You know – it’s a great, great day for us.  And hopefully, we’ll soon we have the case resolved in – in the favor for – you know – Californians.  And really hope that it can make a great impact on other states in the country as well.  So we’re – we’re thrilled today.

Adam Umhoefer:  (Paul) and (Jeff) did you want to make a few comments?

(Jeff):  (Paul)?

(Paul):  Sure, (Jeff); thanks.  (Inaudible) what (Sandy) and Kris said.  You know – this is also (inaudible) in the LGBT community.

Adam Umhoefer:  (Paul) – (Paul), you’re cutting out on us.  Maybe, (Jeff) can – can make a statement.

(Paul):  Sorry about that.

(Jeff):  No, that’s OK.  This is (Jeff).  I just wanted – I think I can speak for (Paul) as well when I say that – you know – we – we got involved in this case three and a half years ago for the very reason because we wanted to get married.  And we were being discriminated against along with thousands of other gays and lesbians.  And this is why we have a court system.  This is why we have a judicial system.  There’s – they have a job.  They have a job to step in when the rights of the minority are being oppressed by the majority.

And – and we are so confident to walk into that courtroom with the legal team we have and listen to Ted and David fight for us because they’ve fought for us all along.  And they’re not – they understand just like we understand that when we win this case, it’s not just four people that win.  It’s thousands of couples and it sets – it just continues the strong momentum that we’ve seen in our – in our movement over the last six months.

Adam Umhoefer:  Thanks, (Jeff).  We now have Chad Griffin, founder and board member of AFER and current president of the Human Rights Campaign.

Chad Griffin: Thanks so much, Adam.  And again, I just want to thank the legal team of both Ted’s firm as well as David’s firm and – and the plaintiffs and – and the full AFER team who’ve just done an incredible job of getting us to this point since we’ve began planning for this case almost four years ago.  You know, today’s news is nothing short of a milestone moment, quite frankly, for equality.  And we’re gratified that the Court has taken this challenge to Prop 8 as – as well.  We should also mention the challenge to the ridiculously named defensive marriage act.

And millions of loving couples – married and unmarried – have been waiting for their day in Court and now they’re finally going to have it.  You know, if you think back four years ago, and you look at the momentum in this country for marriage equality and the pace at which we have moved towards full equality into the law, when we filed this case, we were only looking at three states in this country that had marriage equality.  After this past election, we have now nine states and we have the District of Columbia.  We have the President of the United States supporting marriage equality.

We had our first victory at the ballot box and now in poll after poll, a majority of Americans now say that they support the fundamental right to marry.  And it is no question where this country where it’s headed and it’s headed towards full inclusion and freedom and equality and specifically marriage equality.  And we’re all so excited to have this day in court so that these victories that have been felt in other states will soon be felt in every single corner of this country.  Thank you, Adam.

Adam Umhoefer:  Thanks, Chad.  Now I’ll turn it over to Dennis Herrera, City Attorney of the City of San Francisco.

Dennis Herrera:     Thanks; thank you Adam.  And just as a follow up to Chad’s comments, having been involved in this case or in this issue for nine years, it’s incredible the progress that has been made over the course of the last nine years on the issue of marriage equality.  The federal challenge to Prop 8 represents one of the most significant civil rights cases to be taken up by the U.S. Supreme Court in decades.  And I’m confident that the high court will reach a decision that reaffirms our Constitution’s promise of equal protection under the law.  And in taking up the Prop 8 and DOMA cases, the Supreme Court has signaled its readiness to consider the civil rights issues of our time in an opportune moment in history, perhaps not just for Californians, but potentially for all Americans.

And I can’t tell you how proud our office is to stand along and to enter this decisive legal battle, alongside AFER, Ted Olson, and David Boies and the couples they represent.  And the people who are here on the ground in the state of California.  So we look forward to making our case for the high court and to a resolution that benefits folks, not just here in California, but throughout the country.

Adam Umhoefer:  Thank you, Dennis.  (Jay), if you could give the listeners instructions on how to place a question we’ll go ahead and turn this over to – to question and answer.  Thank you.

Operator: At this time, I would like to remind everyone who would like to ask a question today, please press star then the number one on your telephone keypad.  Once again, that is star one.  We’ll pause for a moment to compile the Q and A roster.  Our first question online comes from (Jerome Markon) with Washington Post; your line is open.

(Jerome Markon):  Hi there; Mr. Olson you mentioned before the importance of the Supreme Court hearing the case on the marriage. And my question – excuse me – my question is didn’t the Court involve cases leave itself out not to decide on marriage, specifically in Prop 8 by asking petitioners have standing in DOMA?  There’s a line saying – you know – does the executive branch’s agreement that this is unconstitutional deprive this Court of jurisdiction to hear the case?  So didn’t they give themselves an out to not decide the marriage?

Ted Olson:   Well – and that’s true.  The Court included with respect to both of the cases the issues of standing.  There are different issues…

(Jerome Markon):  Right.

Ted Olson:  …in each of the two cases. But it’s a standing case in the Perry case – the standing issue in the Perry case is something that we raised right from the beginning, challenging the proponents of Proposition 8’s right to participate in this case once the state of California had agreed that Proposition 8 was unconstitutional.  If the Court should decide this case on standing grounds, and we think that they will probably get to the marriage notwithstanding the standing issue – if the Court were to decide this on standing grounds as far as the Perry case is concerned, that would reinstate the 134 page opinion from District Judge Van Walker, which decided all of the issues comprehensively in favor of the constitutional rights of marriage – and marriage equality.

So that would be an outstanding outcome in and of it.  No one – no one can really predict what the Supreme Court is going to do in a situation like this.  But the standing issue is because they’re in the case and they go to the source of the Court’s jurisdiction was an entirely appropriate for the Court to consider.

(Jerome Markon):  What about DOMA?

Ted Olson:  Well, and the same thin in the DOMA case.  It’s a slightly different issue because of the way it was presented in that case.  But I – I do think that, and David may want to say something more about the standing issue.  But I do think at the end of the day, the Court and the justices at least, some substantial portion of the Court are going to address – would be – will be willing to address the merits of the constitutional rights at stake here.

Ted Boutrous: And it’s important – this is Ted Boutrous on the standing question. In the DOMA case as well, if the Court were to go off on standing DOMA, would have with the District Court’s decision, it would invalidate DOMA but stand there as well.  So I’m sure the Court was aware of those – those factors when they added to the standing issues.

(Jerome Markon):  Right; thank you.

Operator: The next question comes from the line of ((Jeff)rey Fallor) with the Wall Street Journal; your line is open.

((Jeff)rey Fallor):   Hi there; I was wondering if you guys could sort of address – give us a little bit of color on how you plan to argue this to the Supreme Court?  Are you going to – you know – make the broadest argument about – you know – the core issues and whether there is a federal right to gay marriage?  Or – or are you like, with the Ninth Circuit ruling, going to sort of focus merely on the California situation?

Ted Olson:  Let me answer this – this is Ted Olson.  I’ll answer that and then David Boies I’m sure will have something else to add.  We are going to address all of the issues that were in this case – the Perry case – right from the beginning.  That focused on the fundamental constitutional right to marry of all citizens — a right that the Supreme Court of the United States says – has said 14 times is fundamental to all citizens – all citizens. And is one of the most fundamental rights, if not the most fundamental right that we have in this country.

Also, the question of equality of all citizens and whether the equal protection clause allows a state, such as California to deny a fundamental right to a class of its citizens on the basis on their sex or their sexual orientation.  Those are the broadest issues and we fully intend to address those.  We also address, of course, the fact that constitutionally California recognized a right to marry in California; the California Supreme Court did until it was taken away by the citizens in Proposition 8.

There are some individual characteristics in California, but those individual characteristics of the situation in California, won’t – we believe – stand in the way of the vital, fundamental issues that – that underlie this case right from the beginning.  David, I – you probably have something to add?

David Boies:  No, I – I really agree entirely with what you said, Ted.  From the – from the beginning, we’ve argued that there is a fundamental constitutional right of marriage equality; that discrimination against gay and lesbian couples seriously harms them and seriously harms millions of children that they’re raising.  And that there is no justification for this discrimination.  And that we want to have marriage equality and constitutional rights everywhere.

We’ve also argued that under the particular circumstances, California has the Court of Appeals rule.  It is unconstitutional to take away a fundamental right that citizens have a joy as they did enjoy it in California.  So I think all of those arguments will be presented in court as well as, of  course,  the standing argument.

Ted Boutrous:       This is Ted Boutrous again.  I just want to add that as many of you know, when David Boies cross-examined the lead expert witness for the proponents of Proposition 8 and destroyed them on cross-examination; that was a huge development.  But we – now that we’re in Supreme Court with this tremendous record of evidence and that lead expert has now come over to our side and agrees with us on marriage equality.  So we really think that we have the best possible record for the Supreme Court to look at this case.  It’s never going to happen again where the lead expert witness in one of these cases switches sides and agrees with the position on marriage equality like this.  It couldn’t really be a better situation.

Operator:  Our next question comes from (Jessica Garrison) with the Los Angeles Times; your line is open.

(Jessica Garrison): Hi, thank you.  So – OK; one of my questions was already answered.  I think my other question is – and you’ve already spoken to this a little bit, are you pleased that the Court took the case, which you’ve already said you are.  And which side do you think (they’re going to grant), sir?

Ted Olson:  We’re – I’m not – this is Ted Olson.  I’m not going to speculate about which justices may have voted what way.  The – the court as you know does not announce that.  And with respect to our feeling about the case, we – we argued all along that the Court should not take the case because we represent real individuals who have two victories in federal court – at the trial court level and at the Court of Appeals level.  And had the court not taken the case, the case would have been over, Proposition 8 would have been declared finally unconstitutional.  And our clients and – and thousands of thousands of other Californians would be allowed to get married right away.

However, we all felt all along, that this case was – and we said it in our briefs filed in the Supreme Court that this case was a perfect vehicle to decide the fundamental rights of all Americans with respect to the right to marry.  And – and we could not be more gratified that this is the case that the California – that the United States Supreme Court will have before it with respect to these issues.  Our gay and lesbian citizens and all citizens have – will then have the right to have this issue, which is as Dennis said, the – the most important civil rights issue of our time before the Court with a fully developed record; with evidence on history; the importance of marriage; the damage done by discrimination; and the fact that all Americans will benefit by the fact that people will be treated equally throughout this country to marry the person that they love.

(Jessica Garrison): Thank you.

Operator:     Next you have the line of (Chris Geithner) with (BuzzFeed); your line is open.

(Chris Geithner):   Hi; thanks for holding the call today.  just looking at the – the standing question, in – in what ways do you all stand to address those questions and do you plan to make that and address it as part of your argument?  Or are you as – you – most of you talked about doing – doing – focusing more on the merits.

Ted Olson:   Let me – let me – David, why don’t you do that one first because I’ve been doing too much of the talking.  But I’ll – I’ll add my two cents after you’ve had a chance to speak.

David Boies:  OK; sure.  Well, obviously, the marriage issue is the defining civil rights question of our time.  And everyone is anxious to the marriage.  On the other hand, we have from the beginning argued that the proponent of Proposition 8 do not have standing under settled Supreme Court precedent.  And as Ted – Ted Boutrous and – and Ted Olson have already said, if the Supreme Court were to agree that these proponents do not have standing, that would put into effect the district court’s injunction against the enforcement of Proposition 8.  It would declare Proposition 8, once and for all unconstitutional and immediately permit our clients and hundreds of thousands of other gay and lesbian citizens in California to get married.

And so we will be making the standing argument.  We think the standing argument is strongly supported by existing Supreme Court precedent.  But it’s – it’s a moment of mixed feelings.  On the one hand, we all want our clients and the citizens of California to have marriage equality immediately.  On the other hand, this here’s an ideal case for the Supreme Court to decide this critical civil rights issue.

Ted Olson: I can’t add anything to what David said.  He said it as he always does as well as – certainly as well as or better than I could.

Operator:  Next you have the line of (Dan Stein) with the Huffington Post; your line is open.

(Dan Stein):   Thanks; thanks for doing this as well.  This is more of a political question than a legal one.  But there is a strand of concern out there that people want to see the DOMA case go first to build up a sort of a critical mass of public support for gay marriage after which the Prop 8 case would have a better chance for you all.  And I’m wondering if you can address the concerns that some have about the sequencing here with them going together now?

Ted Olson:  We would – this is Ted Olson – we have never agreed with those concerns.  In fact, the record in the Perry case – Proposition 8 case – is so fully developed with testimony, really unchallenged testimony about the rights of gays and lesbian citizens.  The damage done by the constitutional prohibition in California – the constitutional taking away the rights of these citizens to be free and equal and to have the same rights of privacy and freedom as other citizens; the fact that allowing gays and lesbians to get married in California do not – does not do any damage to the right to marry of heterosexual citizens.

In short, the record is so complete, that we’ve always felt that if this case – if the issue of marriage equality was going to be before the Supreme Court, that Proposition 8 – the Perry case – should be a part of it because it has a vastly, more developed, evidentiary record and specific, thoughtful findings by a district judge who listened to all of the evidence.  And the fact that there was no evidence of any persuasive effect on the other side.

(Dan Stein):  Thank you.

Operator:  Once again, if you would like to ask a question at this time, please press star then the number one on your telephone keypad.  If you would like to withdraw your question, please press the pound key.  Our next question comes from (Julie Small) with KPCC; your line is open.

(Julie Small): Good afternoon; thank you.  I’m wondering if you could talk a little bit more about – you said that if the Court rules on standing, we go back to Walker’s ruling and put into effect the injunction.  What – how does that affect the appeals court ruling in that case?  And – and are there any implications for other states in terms of well, if they lock the standing, would that mean that authorities in other states could refuse to defend similar laws?

Ted Olson:   David?

David Boies:  Well, the answer is that if there’s no standing on the part of the proponents, the Court of Appeals decision would also be vacated because there was not standing at the Court of Appeals level either.  That’s why you would go back to the District Court opinion.

The District Court opinion would finally once and for all, declare Proposition 8 unconstitutional and establish the right of marriage equality in California.  It would not, as a matter of strict legal precedent apply outside of California.  But the reasoning of the Court – the thoughtful findings of the Court would certainly, we believe, to be persuasive in other states.  And the evidentiary record that’s been made in this case would be available to parties in other states.

With respect to the last part of your question, if similar cases were brought and were won at the District Court level, if the only people appealing were the proponents, and the Court had already held that they did not have standing, they would not have standing to appeal.  So it would depend on whether the authorized state officers will or will not defend the constitutionality of statutes or constitutional provisions – state constitutional provisions outside of California.  We would hope that those officials, like the officials in California would recognize that marriage inequality is unconstitutional.  And no longer defend that those acts, just as the President of the United States has said he will no longer defend DOMA.

Operator:  Our next question comes from (Josh Gristein) with Politico; your line is open.

(Josh Gristein):  Hi; thanks for doing the call.  My question is whether in this case – the (Hollingsworth) v. Perry case at any level the U.S. government has ever filed a brief stating what its views are on the core issues in the case?  And would you expect such a brief to be filed now that it’s going to be going before the Supreme Court?  And how and when would that take place?  And what would you hope that it would say?

Ted Olson:  This is Ted Olson.  The – the government – the United States Government has not taken a position or filed a brief in the Perry case up to this point.  But to your question as to whether they would or would not, I think that given the position that the government has taken in the DOMA cases and the reasoning that they have used in filing their brief would apply with great effect in our case and in the Perry case as well.  We – I think – I – I  would hate to predict what the United States government is doing.  But given the stand that the President of the United States and the Attorney General of the United States have made with respect to marriage equality, we would certainly hope that they would participate.

And I’m quite confident that if they didn’t participate, they would support our position in this case that the denial of equal rights is – is subject to close scrutiny by the courts.  And cannot withstand that scrutiny – it’s a denial of rights.  And it’s quite clear that it is.  As to timing, if the government – if the United States government does that, they would file a brief in this case at approximately the same time that they would in the DOMA case.  So that would take place in – in due course with respect to the same timing in both of the cases.

Operator:   Next you have the line of (Doug Sovereign) with KCBS radio; your line is open.

(Doug Sovereign): Hi, everybody.  Thanks for doing this.  Yes, I’m wondering – you know – we heard (David) admit to some mixed feelings and I’m wondering – Kris and (Sandy) – if you’re still both there, and I apologize I forgot to do a live report in the middle on the radio, and so someone may have asked this already.  But if you felt any – you know – when you heard that they are taking this, if there was any disappointment for you?  Or – I mean, if they had denied this, either today or Monday morning, you might be getting married next week.  So I’m wondering if you have any mixed feelings about that.  I know you’re thrilled they’re taking it.  But – but when you first heard it, was there – was there a little bit of disappointment?

Kris: This is Kris, and you may find this a little surprising.  But the answer is no.  the – as much as (Sandy) I want to be married, we – we wanted to be plaintiffs in this case because we want everyone in California to be able to get married, or frankly everybody in the United States who finds themselves in this situation.  So we’re – we’ve learned how to be really patient and understanding of this process.  And what we – we’ve ultimately wanted was the – the very biggest and broadest, boldest outcome possible.  And that can only happen if the Supreme Court listened to the case and of course, rules like the Ninth Circuit did and like the District Judge did, which is that Proposition 8 is causing harm to couples everyday.  It’s clearly not constitutional and highly discriminatory.  And it’s better for not only (Sandy) and I and our kids, but for all of our friends and their kids and for people across the country to – to benefit; to benefit from the hard work of this case and what it says.  And for everyone to have the same access that we want to have.

(Doug Sovereign): Thanks; that’s very thoughtfully said.  (Sandy), do you have anything you want to add to that?

(Sandy):   No, just I think – you know – when Kris and I got involved in this case, we were – we were coming to it from a perspective as A, being parents and having kids who are really almost – almost completely grown up and really now at this point, they are grown up.  But also having come from sort of smaller towns and me from the heartland and Kris from – you know – the middle part of California where – it is – it’s very different from the progressive area that we live in now.  And so the issue of discrimination really resonates with us.  And we really feel like (inaudible) for individuals who are living in communities where they – the discrimination is felt more exudely.  And we really wanted to – always wanted to – or our greatest hope that the outcome for this case could reach into those communities and provide some hope and optimism for – for all kinds of people.  So the best possible outcome is that outcome and is absolutely worth waiting for.  So today I feel (inaudible) disappointment because there’s great, great hope that that in fact will happen.

(Doug Sovereign): Thanks so much.

Operator:   Next on the line we have (Cat Snow) with KQED; your line is open.

(Cat Snow):  Thanks – thanks very much you guys.  You – several – you – Ted and – and David you both have talked about a couple of times in answers to several questions why is this case – why is Prop 8 case a really excellent case to bring forward and what is it about it that makes it the right case.  I – I’d like you to address that in one – in one answer.  If you could each say for yourselves why this case is the right case for going forward?

Ted Olson:  David?

David Boies:  This is a case in which we have an unparalleled record where both the plaintiffs’ witnesses and the defendant’s witnesses have admitted that Proposition 8 marriage inequality discriminates against gay and lesbian citizens; harms them in serious ways; harms their children in serious ways; and does not advance any legitimate societal interest.

They work – the defendants were consistently unable to identify any societal interest that would be harmed by marriage equality.  We have a record that consists of experts from all over the world that were brought together really for the first time to build a comprehensive record of why discrimination against gays and lesbians with respect to the fundamental right to marriage is not only damaging but without any redeeming (finality).  I think that coming from California where this right existed as a fundamental constitutional right under California Constitution and then was taken away is the perfect case to present to the Court this fundamental civil rights issue.

Ted Olson:  And this is Ted Olson.  I – I can’t improve on what David said, except to say this additional point is that the opponents – the proponents of Proposition 8, the opponents of marriage equality tried to come forward with every conceivable, arguable justification for this great constitutional harm that Proposition 8 was doing to our citizens.  They had theories.  They had speculation.  And what we did in this case was put on leading experts as David said from throughout the world who testified that those theories which were constantly changing by the proponents of Proposition 8 because they kept running out of excuses were – where each of their justifications were systematically demolished as a matter of fact and learning by the experts and all of the witnesses as – as the trial court found.

So this is a perfect vehicle because arguments can’t be made out of thin air in this case as you might be able to do in some other cases where the facts have not been ventilated as they were in this case.  Here, every single argument that could be made by the supporters of discrimination, those arguments were made and those arguments were demolished by the witnesses in our case and by David Boies’s cross-examination of the few witnesses that the other side put on.  And that makes the foundation in this case so perfect for all of these issues to be ventilated before the Supreme Court.

(Cat Snow):  Thank you.

Adam Umhoefer:  (Jay), we’re going to take two more questions.


Operator: Thanks; next we follow up the line of Peter Henderson with Reuters; your line is open.

Peter Henderson:  Hi there; I think it was in the Lawrence case that Kennedy said that the court shouldn’t get too – too far ahead of public opinion or something along those lines.

I’m wondering to what extent the recent votes in Washington and other places will play into your arguments and – and with the justices.  And in particular whether you think it will be very helpful winning Kennedy’s vote?

Ted Olson:   I – we won’t speculate about any particular justice or how a particular justice is going to vote or what might appeal to the justices.  As David and I have frequently said, we are taking no justice for granted.  And we’re not expecting any justice – we’re not giving away any justice.  We’re going to make our arguments to all nine justices of the Court based upon the 14 decisions that uphold the right to marry and the other precedents of the United States Supreme Court.


We think it is important for the Court to understand that the American people have come to realize that it is so important to treat our gay and lesbian citizens equally and that the rights of privacy, liberty, spirituality that we make available to citizens of opposite sex who wish to marry should be made available to all of our citizens.  And that that is an important fundamental right and a right of equality.  The court will decide this on the basis of the law and the constitution and their precedence.  We don’t expect the court to be influenced by public opinion.  But of course, we’ll not be unmindful of the way the American people have developed their ideas on this very important point.

Adam Umhoefer:  Last question.

Operator:               Next we have the line of (Julie Bolster) with The Advocate; your line is open.

(Julie Bolster):       Oh, hi there.  So many of my questions have already been brought up by colleagues.  There’s just two round this out – David, you had talked about applying this – whether or not what happens will apply outside of California or not.  So could you just reiterate the scenarios in which this would or would not apply outside of California and some of the ways it might spin out?

Ted Olson: David, are you still there on the phone?

David Boies: Oh, hi – hi, something broke off in the – in the – I can hear everything now.  But I couldn’t hear anything for about 30 seconds.

Ted Olson:  OK; Julie, maybe you could rephrase the question.  David’s back on the line.

(Julie Bolster):  Sure, I’ll – I’ll repeat.  Not sure I can rephrase it so much.  But as I said a lot of my questions have been taken care of by colleagues.  So in wrapping up, David, you had talked earlier about the ruling and what could happen and whether it would apply outside of California or not.  So many of my readers want to know if they live in other states, how could this affect them?  So can you talk a little bit about the various scenarios and whether – you know – it will or will not – you know – have an impact directly outside of California or not?


David Boies:         Sure; if the United States Supreme Court as we expect it will and certainly some of the justices will probably address the fundamental marriage issue of whether discrimination against gays and lesbians and the right to marry is unconstitutional under the Federal Constitution.  Having decide that as we are confident they will, if they reach that issue, our way; that would mean that there would be a fundamental right to marry in every state in the country because, obviously, the Federal Constitution applies to every state in our country.

Now, if the Supreme Court decided our case on the narrow grounds that the Federal Court of Appeals decided it on, which was that having granted the right to marry, California could not take it away without a justification.  Then that decision as a technical legal matter would only apply to California and – and other states where the same thing might be true.

However, the reasoning – both the District Court and of the Federal Court of Appeals – applies to a more – to the broader issue.  And that would be very persuasive precedent we believe in other jurisdictions.  The other alternative that could happen is the Supreme Court could hold that the proponents do not have standing.  That would leave – put back into effect the District Court opinion.  That District Court opinion – like the Court of Appeals opinion would only technically as a matter of strictly precedent apply to California.  But again, the reasoning there is very broad and supports a broad constitutional right to marry for all citizens.  And that, too, would be very persuasive precedent, we believe, in other jurisdictions in part because of the tremendous record that supports it.

(Julie Bolster):   Thank you.

Adam Umhoefer:  Thank you, so much David and Ted Olson and Ted Boutrous; Dennis Herrera, Chad Griffin;Kris and (Sandy); (Paul) and (Jeff), the AFER board, staff and all the donors who made this possible.  And to all of you joining us today; thank you for taking the time.  This concludes our call.  If anyone has any further questions for anyone on the AFER team, please don’t hesitate to reach out to us.  Thank you and have a great weekend.

Operator:  This concludes today’s conference call.  You may now disconnect.