AFER attorney David Boies talks to David Gregory to preview Tuesday’s oral argument about Prop. 8 and marriage for gay and lesbian Americans.

Transcript

DAVID GREGORY:
Okay, I want to turn to that question for the Court. We’re talking about the politics behind the same-sex marriage fight. The legal aspect, of course, comes to a head this week at the Supreme Court. Starting Tuesday, nine justices will hear oral arguments on the two potential landmark cases that they will be looking at.
It’s the first time same-sex marriage laws have been reviewed by the Court, but it won’t be the first time one of the lawyers arguing for same-sex marriage, David Boies, finds himself in the middle of yet another one of the country’s most anticipated Court cases. He of course was Vice President Gore’s attorney during Bush v. Gore which effectively closed the book on the 2000 presidential election by ending the Florida recount. And Mr. Boies is with me here. Good to have you.

DAVID BOIES:
Good to be here. This time, I’ve got Ted Olson, who is representing–

DAVID GREGORY:
That’s right. You guys are a team here, which is striking.

DAVID BOIES:
Together. So it’s better.

DAVID GREGORY:
Pick up on this conversation.

DAVID BOIES:
Sure.

DAVID GREGORY:
What is it that you need the Court to decide, in lay language?

DAVID BOIES:
Sure. At the very beginning of this case, we said we needed to prove three things. We needed to prove, first, that marriage was a fundamental right. And I think we did that, and even the defendants agreed with that, because the Supreme Court has ruled that 14 times in the last 100 years.

Second, we needed to prove that depriving gay and lesbian citizens of the right to marry seriously harmed them, and seriously harmed the children that they were raising. And we proved that too, not only through our witnesses but through the defense witnesses.

DAVID GREGORY:
Can I just interrupt on that point, because I think it’s significant? Which is, in effect, are you saying that you want gays and lesbians to be treated as a protected class, like African Americans? So in other words, the burden is so high to discriminate against them?

DAVID BOIES:
That’s exactly what the administration’s brief says. But we believe that, even if you simply apply the rational basis test, there is no rational basis to justify this ban. And that’s because of the third thing that we proved, which was that there was no evidence, none, that allowing gays and lesbians to marry harms the institution of marriage or harms anyone else.

DAVID GREGORY:
That goes to Ralph Reed’s point.

DAVID BOIES:
It does. And I think one of the things that’s important is that the evidence is that having a loving couple that are married is great for children. Everybody agreed with that. But the evidence is that’s true whether it’s a gay couple or a straight couple. And it’s true whether it’s an adopted couple or a biological couple.

DAVID GREGORY:
Isn’t it possible–

DAVID BOIES:
That’s the evidence. The evidence is absolutely clear that, if you have a loving, adopted couple, it is no worse off at all than a biological couple.

DAVID GREGORY:
Look at the map, though. I want to come to the practicalities of– frankly, the politics of the Court as well. We look at Roe v. Wade. These are the states, that are highlighted in blue, where same-sex marriage is banned. Aren’t you effectively asking the Court, I realize that there’s the difference between the California case and the Defense of Marriage Act case, to say, “With one stroke of the pen, we’re going to invalidate what those states have done and create a constitutional right to marry for gays and lesbians”?

DAVID BOIES:
Every time the Supreme Court makes a constitutional decision, it’s making a decision that certain fundamental rights are too important to be left to the ballot box. We’ve done that with race, we’ve done that with women; we’ve done that with every discriminated class. And remember, when the United States Supreme Court outlawed the bans on interracial marriage in 1967, 64% of the American people opposed interracial marriage. And yet, when that decision came down, there wasn’t a ripple.

DAVID GREGORY:
Was Roe v. Wade decided too quickly?

DAVID BOIES:
Well, Roe v. Wade is an entirely different situation. We’re not asking for a new constitutional right. The constitutional right to marry is well established. In fact, the Supreme Court has ruled that you can’t take away the right to marry, even from imprisoned felons who can’t have any procreation because they can’t get together. But you can’t take it away from those people because it’s so important, it’s such a fundamental right of liberty. And that right is already established. The only question is are you going to deprive gays and lesbians of this right because of their sex or their sexual orientation?

DAVID GREGORY:
Handicap this. Do you remember the Time Magazine last summer about Justice Kennedy, that he is the decider? How do you think this goes?

DAVID BOIES:
I’m not going to get in the business–

DAVID GREGORY:
Oh, you’ve talked about this already. You’ve been doing some of the handicap–

DAVID BOIES:
Well, but–

DAVID GREGORY:
You don’t think it’s going to be close?

DAVID BOIES:
What I’ve said is I think we’re going to win. I don’t think we’re going to win 5/4. I think this is a basic civil rights issue. I don’t think that this is the kind of issue that’s going to divide the Court the way some other issues divide the Court.

DAVID GREGORY:
Do you think it’s possible that the Court makes a decision that doesn’t resolve the rights question? In other words, doesn’t resolve whether there’s a right to marry?

DAVID BOIES:
Yes, they could because there’s a technical legal issue called standing that’s raised here. And the Court could decide that the defendants don’t have standing. That would result in allowing marriage equality in California, because it would affirm the district court, but it would not have any general applicability.

DAVID GREGORY:
We will be watching. Mr. Boies, thank you very much–

DAVID BOIES:
Thank you.

DAVID GREGORY:
–for being here. We’re going to take a quick break, but we’ll be back with more from our roundtable to get some reaction to the gun debate which you heard here this morning. We’ll be back after this.