Friday June 26, 2015
How Same-Sex Marriage Went from Being Banned to a Constitutional Right in 10 Short Years
Seattle, December 9, 2012: Ahead of the curve, but not by much.
Q: The shift [to supporting marriage equality] is rather startling, isn’t it? States are approving or refusing to defend something that they banned less than 10 years ago.
Boies: I don’t think either one of us has ever seen, in our lifetime, where an issue as contentious as this, as much of a wedge issue as this, has changed as rapidly. When we started the case, there were two or three states, [representing] less than 5 percent of the population of the United States, that permitted marriage equality. Now, more than half of all American citizens live in a state that permits marriage equality. When we started, a substantial majority of American citizens opposed marriage equality; today, less than five years later, a substantial majority of American citizens favor marriage equality.
Q: So why now? What caused the change?
Boies: I think the single most important factor is that, starting in the ‘60s and ‘70s, gay and lesbian couples and individuals began to come out and be honest about their sexuality and their sexual orientation.
When I grew up, I didn’t know anybody who I knew was gay. I’m certain that I knew a lot of people who were gay, but you didn’t know they were gay because the extent of discrimination and hostility caused people—just as a matter of protectiveness—to try to deny, at least openly, their sexual orientation. What that meant was the field was wide open to caricature. [But] as more and more people had the courage, and it really took courage in those days, to acknowledge their sexual orientation openly, everybody else began to know people—members of their family, teachers, students, doctors, lawyers, engineers—who were gay. They realized that the myths they had grown up with just weren’t true. I think that as a whole new generation of people grew up knowing, sometimes from a fairly early age, people of differing sexual orientations, it became harder and harder, and for most people impossible, to use that as a basis for discrimination.
We’re both good at what we do, in part because we’re good at figuring out the argument the other side’s going to make so we can rebut them. This is a case in which we can’t figure out what the good argument is on the other side. The other side doesn’t have an argument.
Q: When you argued Prop 8 before the U.S. Supreme Court, Justice Scalia asked you, “When did this become a federal constitutional right?” Is that still a legitimate question?
Olson: It’s a question. I said, “When did it become unconstitutional to prohibit people from different races of getting married? When did it become unconstitutional to make children go to different schools based upon their race?” Well, the Supreme Court decides cases when they get there, and when they understand the damage that discrimination does when it’s against classes of our citizens based upon their characteristics—the color of their skin or, in this case, their sexual orientation—then the Supreme Court decides it. But it’s because we realize that there are a class of people that are distinguished because of who they are—their immutable characteristics.
We accepted slavery and we accepted discrimination and we accepted putting Japanese citizens in concentration camps in California. When did that become unconstitutional? That’s a rhetorical question that gets asked in Supreme Court arguments, and Justice Scalia, and I admire him enormously, is very good at it. But I think the answer is that it’s right now, here before your eyes, and you can declare it for the United States.
Q: Do you think your Virginia case, or another of the marriage equality cases, is going to wind up with this court? They seem to not want to decide the matter.
Olson: You never can predict which case the Supreme Court is going to take. We don’t know when it will come. But it’s going to come.
-- from my conversation with David Boies and Ted Olson in January 2014. Posted after today's momentous decision in Obergefell v. Hodges, Director, Ohio Department of Health. The Q&A also includes the following, which, yes, is still true today:
Q: And Justice Scalia? Can you win him over?
Olson: We try to win over everybody.
Boies: Some are harder than others.