Charlie Rose Talks to David Boies About the Supreme Court's Same-Sex Marriage Cases
Explain the importance of this moment and these two cases being argued in the Supreme Court.
Just think how unlikely this would have been four years ago. To be on the verge of real equality for gay and lesbian citizens was unthinkable. We still had “don’t ask, don’t tell.” You had 38 percent of the American people supporting marriage equality. You had a whole series of states that prohibited gays and lesbians from marrying, New York among them. Today, “don’t ask, don’t tell” has been repealed. We have marriage equality in New York. And 58 percent of the American people, and more than 80 percent of citizens 30 and under, support marriage equality. It’s been a seismic shift. It’s been one of the most rapid advances in any civil rights movement in history.
Do you agree with the comparison being made between these cases and Brown v. Board of Education?
Yeah, I think Brown and Loving v. Virginia, which was the case where the Supreme Court held that states could not ban interracial marriage. This is the same kind of discrimination.
How did you get involved?
I got involved when Ted Olson, who was on the other side in Bush v. Gore and is a close friend of mine, called and asked if I’d be interested in taking this case on. I immediately said I would. He’d been asked by Rob Reiner and Michele Reiner and Chad Griffin and others who’d formed American Foundation for Equal Rights in the wake of Proposition 8.
During arguments before the nine Supreme Court justices, who or what surprised you?
It was that there were a number of justices, both those that you would consider maybe on the conservative side and those that you might consider on the liberal side, who are questioning whether the Supreme Court should actually have taken this case at this time.
And what if they won’t? The California Courts of Appeal decision [which overruled Prop 8] stands?
Absolutely. [And] if they decide there was no standing to appeal, then it goes back to the district court. In either case, you get marriage equality in California.
Do you think the shift in public opinion will have an impact here?
Public opinion probably has some atmospheric effect. It’s not analytically relevant. The Japanese internment case was wrong, as the Supreme Court held, even though it took place during World War II, when there was a lot of anti-Japanese sentiment. But I think the fact that public opinion has shifted so much makes it easier, perhaps, to enforce these constitutional rights.
You’ve been involved in some big cases over your career. Would you say this is the biggest?
In many ways, this is the most important case I’ve ever been involved in. This is the defining civil rights struggle of our current generation. When I went to Mississippi in the 1960s, that was the defining civil rights issue in that generation. And when we win this issue, we’ll have eliminated the last bastion of official discrimination by the government against its own citizens in this country.
There’s nothing else beyond this?
If you look back 100 years, you had governments discriminating against women, governments discriminating against African Americans and people of other races. One by one, the courts have struck those laws down, with some exceptions in terms of gender. The only pervasive set of laws that continue discriminating against American citizens are the laws against gay and lesbian couples.
If both the Prop 8 and Defense of Marriage Act cases go the way you want them to, what’s next in the struggle for gay rights?
I think you’ll have, for some period of time, social discrimination. Just as we’ve eliminated du jour discrimination against African Americans, there’s still a lot of social discrimination we’ve got to deal with as a society.
You and Olson, who’ve been opponents on big issues, coming together is a powerful statement for an idea whose time has come.
There’s a certain novelty in the two of us being together that made people listen to us. And this is an issue that, when people listen, there’s only one way they can come out. All the other side has is a bumper sticker: “Marriage is between a man and a woman.” That’s not the answer. That’s the question. I think we’re going to win this case. I think this is the right time.