of what’s right under the Constitution,
and their sense of conscience about the
responsibility that they have to their
citizens, are coming into play.
Q: Although we didn’t have that conscience
10 years ago as a country. So why now?
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: Last year, when you argued Prop 8
before the U.S. Supreme Court, Justice
Scalia asked, “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
Q: Virginia’s Attorney General Mark
Herring asked the federal courts to
strike down the same-sex ban in Virginia
today. Did he speak to either of you
beforehand?
Theodore B. Olson: He called me
yesterday. He called me to let us know
what was going to happen in the case.
One of the points he made is that he
wanted Virginia to be on the right side of
history. Virginia had been on the wrong
side of history on a number of occasions
historically, including interracial marriage.
He felt that this is the state of George
Washington, Thomas Jefferson and
James Monroe. This is the state of Patrick
Henry. It cannot be that the state and
commonwealth of Virginia takes the wrong
side in terms of equality of its citizens.
Q: So will someone else defend the ban?
Olson: The two clerks of the counties that
are involved are continuing to defend the
constitutionality of the measures. The
issue that caused the standing question on
appeal in California will not be an issue in
this case.
Q: All of this is happening rather quickly:
States are approving or refusing to
defend against something that they
banned less than 10 years ago.
David 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.
Olson: I think it’s happening because
[officials such as Mark Herring] represent
all the people in their states, and they
have a responsibility to the people who are
victims of discrimination. This is not like
enforcing, or not, some statute regulating
economic conduct or speed limits. These
are provisions that take sides against
some of its citizens. I think people’s sense
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 these are a class of people
that are distinguished because of who
they are—their immutable characteristics.
You don’t choose to be homosexual or
heterosexual. It’s a characteristic that’s a part
of chemistry and biology. And we’re putting
them into different boxes and treating them
differently. We realize over time that that’s
unconstitutional and that’s unacceptable.
We accepted slavery and we accepted
discrimination and we accepted putting
Japanese citizens in concentration camps
in California. We tolerated discrimination
against the Chinese in California. They
helped build California and yet they couldn’t
run a laundry. 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
the case in Utah or Oklahoma, 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’s going to take. There’s
a Ninth Circuit case that was decided just
this week, where the Ninth Circuit decided
you couldn’t use preemptory challenges
based upon a person’s sexual orientation.
That could come to the Supreme Court.
There’s a conflict in the circuits on that
issue, and whether that case will get there
first, which won’t decide the marriage
issue, but it will decide the standard of
review, which could be an important factor
in deciding the marriage issue.
We don’t know when it will come. But
it’s going to come, and it’s going to come
pretty soon.
Q: What have you learned about each
other from working together?
Boies: If there was one—I won’t say
surprise—[it was] in the closing argument
in the [California] trial court. The plaintiff
obviously closes first, then the defendant
