David Boies Explains Why the Legalization of Gay Marriage Is Inevitable
JOHN HEILEMANN: The Supreme Court just said it will hear potentially historic cases on same-sex marriage, so we called superstar litigator, David Boies. And he rushed right over, thankfully. David Boies's career has been littered with storied cases—Bush v. Gore, Westmoreland v. CBS, and United States v. Microsoft. The case that I covered extensively and let me get to know David, but as important to him as any of these cases, was Perry v. Schwarzenegger, in which he and Ted Olson successfully overturned California's Proposition 8 ban on gay marriage. David, this is the big one, right?
DAVID BOIES: The big one.
JH: This is the big one. The Supreme Court is now—is asking the question frontally about the Fourteenth Amendment.
JH: Does the Fourteenth Amendment require states essentially to accept sex—same-sex marriage and force them to accept same-sex marriage licenses from other states?
JH: Tell—explain—well, does it?
DB: Yes. Well, it—this is going to resolve it. I mean with the Supreme Court, it's done. If they signal that they're going to resolve this issue once and for all and they've taken on the two issues that exist.
DB: One, can a state ban marriages between gay and lesbian citizens simply based on sex and sexual orientation?
DB: And second, if they can, do they nevertheless have to recognize marriages done some place else?
JH: So on the—just on the merits, on the merits, on your basis on what you know about constitutional law—which is a fair amount—does the Fourteenth Amendment, under equal protection, compel the nation now to accept same-sex marriage?
DB: Absolutely. The argument is overwhelming that there is a federal constitutional right to marry a person that you love. And 36 states have held that. Seventy percent of the American people now live in a state that has constitutional or statutory marriage equality. And the history of the Supreme Court is a history of case after case after case holding that marriage is a fundamental right —that it protects individual freedom, freedom of expression, freedom of association, that it's a basic element of liberty. And I think that the Supreme Court stepped right up to that in the Windsor case. They didn't go all the way, but you read the Windsor case and you read the Lawrence case of 10 years ago, and you can't read that reasoning and not conclude that there's a federal constitutional right to marry and Justice Scalia agrees with me—because he said that in dissent.
JH: He said it would be—yes. Yes, he did. So, look, just—it has always struck me that basically this is miscegenation all over again.
JH: This is Loving v. Virginia.
DB: It is.
JH: And there's no just fundamental distinction. For instance, once you accept the notion that your sexual preferences are innate—and not a choice—that it is the same as skin pigmentation, basically. If we accept interracial marriages, we have to accept gay marriages, too.
DB: I think that's exactly right. And in addition to the Perry case, Ted Olson and I represented plaintiffs in Virginia. And one of the things that the federal district court judge said in holding that Virginia's ban was unconstitutional is that this is just like "Loving v. Virginia."
JH: Let me ask you now to step out of the mode of legal analyst or constitutional analyst into the mode of political analyst, right. And when I say political analyst, in this case, I'm talking about the Supreme Court itself. You know these justices. I would wager that you have met all of them. And you have tried cases in front of most, if not all of them. We know that there are four justices who are going to be for same-sex marriage. We know that there are at least three who are going to be against same-sex marriage. Can you talk about the dynamics, like read the tea leaves on Anthony Kennedy and the chief justice, John Roberts?
DB: Right. Well, I think it's always hard to predict how a justice is going to come out. But I think that if you look at Justice Kennedy's opinions in Lawrence v. Texas, Romer v. Colorado, the "Windsor" case, you can't read those opinions without believing that what the court has done is to stake out the basic legal underpinnings of a right to marriage equality. Everything that is said in those opinions about how individual views of morality is not a basis for legislation, that everyone has a right to dignity regardless of their sexual orientation, that the Constitution protects this equality, I think everything that's in there really says that there is a federal constitutional right. And remember, each one of those decisions were 5-4.
DB: Now, Chief Justice Roberts was in dissent in Windsor. And I think that you have to begin with the proposition that each of the justices that was in dissent in Windsor, you have more of an uphill battle to convince than you do the justices that were in the majority.
JH: Does it play to something like Chief Justice Roberts' mind that he has fallen out of favor with the conservatives over the upholding the Affordable Care Act and he now needs to kind of do a makeup ruling? Or is Chief Justice Roberts essentially a centrist who's looking for consensus? There are those who say he's the ultimate court politician and that he wants there to be not so many 5-4 rulings. He wants 6-3s and 7-2s and unanimous rulings.
DB: I do believe that he wants a less fragmented Supreme Court. I do believe that he believes—and I believe—that the Supreme Court's image is enhanced if you have 6-3, 7-0, 9-0 decisions. And there are a lot of them. The problem is that there are not a lot of them in these really high profile contentious issues. And I think that he'd like to see the court speak with more than one voice. I don't believe, however that that's going to change his vote on a case like this.
JH: If the court goes the other way and doesn't do what you think it will do on the basis of both the constitutional law and the politics of it, what does that mean for the 36 states and the country where gay marriage is now legal? What are the practical consequences if the court does not find the Fourteenth Amendment right to same-sex marriage?
DB: In the short-term, there are no consequences because in each of those cases, there is either statute or a final judgment on a constitutional issue that requires marriage equality. However, if you are in one of those states and there is a majority in favor of a ban, that majority could enact such a ban. The courts would not presumably hold it unconstitutional under the federal Constitution. Now, you might still challenge it under the state constitutions. And you may still establish it by legislation. But you would not have a federal constitutional challenge if the Supreme Court goes all the way against us.
JH: Right. But you do not think that's going to happen.
DB: I don't think that's going to happen.
JH: So here is the question for you. I want to ask you a really political question now. And it's not—don't even be a lawyer. Don't be a litigator and don't be a Supreme Court tea leaf reader. Be a political consultant right now.
DB: Right. OK.
JH: If the court does go all the way and we now have gay marriage as the law of the land, how do you think leading Republicans should react to that in the presidential context for 2016?
DB: I think they should be really happy, because it takes the issue off the table.
DB: I think that this is one of those issues that is a dagger at the heart of the Republican Party, because you have people who want to make an issue of it and yet I think the majority of Republicans, like the majority of the American people, realize that this is a bad thing to do, to try to deprive people of the right to marry. It's against family values. It's against all the things Republicans have ordinarily and traditionally stood for. And yet there is a wing within the Republican Party that votes in primaries and can be very disruptive. So I think the best thing that can happen for Republicans is for the Supreme Court to take this off the table for the next election.
JH: If you were advising Jeb Bush in this scenario, you would say when that ruling came down, you would say Jeb Bush do what?
DB: I would say the Supreme Court has spoken. I believe in the rule of law. This is something that's in the rearview mirror, let's move forward, discuss the real issues, because I think that if—if the Supreme Court does take the issue off the table, which I think they will. I think that's a gift to Jeb.
JH: Yes. Justice Scalia has said that he thinks, even though he doesn't like the idea, that this is inevitable. Do you think gay marriage for all Americans in 50 states is inevitable?
DB: I think it's inevitable. It's the right thing to do. It's long overdue. And I think we're going to have it this year.