David Boies on Gay Marriage Hearings: Premature to Predict Prop 8's Future

Tuesday, March 26, 2013

David Boies is the lead counsel on the constitutional challenge to California's Proposition 8, the state's same-sex marriage ban that went before the Supreme Court on Tuesday. 

During oral arguments, several justices expressed concern that the court had moved too fast when it took up the question of whether gay and lesbian couples have the constitutional right to wed, according to the New York Times.

"These were only some of a series of questions that the justices asked, and I think they're considering a number of ways of resolving it," David Boies told WNYC's Amy Eddings.

Justice Anthony Kennedy — the likely swing vote whose opinion may decide the case — questioned the merits of the case and voiced sympathy for the children of same-sex couples.

"His question about the children reflected the fact that the record is clear that depriving gay and lesbian couples of the right to marry seriously harms the children they're raising," Boies said. "This was a point that was made not only by our witnesses but was made through cross examination of the defendants' witnesses at trial."

Boies said Kennedy's question fits in with the civil rights tenor of the case. 

"One of the things that the court held in Brown v. Board of Education is that government can't impose a badge of inferiority on some of its citizens," Boies said. "Yet that is exactly what Proposition 8 does with respect to gay and lesbian couples in California."

Charles Cooper, who represents the Proposition 8 defendants, did not respond to a WNYC request for an interview.


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Comments [7]

Kathleen Maloney from Canada

Perhaps the fact that the married are now a minority who draw financial benefits at the individual's expense, society needs the gay community to marry so that the married minority increase making the married a majority. Increasing the married will prevent the individuals as a majority from taking the federal government to court for discriminating against them by providing benefits to couples which are not available to individuals. The federal government should answer the question as to whether the married should continue to access benefits for their spouses out of the public revenue when the individual, not the couple is the unit of taxation and the unit that civil liberties are to protect to assure that individuals, not couples are discriminated against. While marriage may be an issue of social discrimination, the benefits that the married derived from marriage status may not be constitutional as the individual is being discriminated against by the state for the benefit of the married. This cost to the individual in fact discriminates against the individual in the process. The suggestion that the individual should provide for benefits for couples is historical to marriage being a economic relationship of dependency for the creation of future generations. Children today do not live in marriages, and their non couple parents do not derive the benefits that couples receive federally, and yet their individual parents are forced to publicly fund benefit of couples. So federal benefits for married couples are depriving children of income that could be spent on their education, health, and welfare. Spouseless and childless individuals appear to have less civil liberties in America. Odd that a country that champions individual rights would abuse those rights to favour benefits for couples out of public revenue.

Apr. 02 2013 05:58 PM
Diana from NJ

Dr Dave - I ABSOLUTELY agree! Some time ago, when either Brian or Leonard were talking about the issue of civil unions in NJ, I was able to call in, and I made that proposal. I am married and would have no qualms about being considered a civil union in the legal/civil/governmental realm. Marriages could be offered by churches, religious organizations or social groups, but the government should be out of the marriage business.

Mar. 27 2013 11:22 AM
Ed from Larchmont

Man is created male and female, the two great halves of humanity. Marriage is the bridge between that joins these two halves of humanity. Of course there are bad marriages, but without the complementarity of the sexes, one doesn't have marriage. See Pope Paul VI, 'Humanae Vitae', etc.

Mar. 27 2013 10:46 AM
dr dave ores from Lower East Side

I propose Civil Union for all lifestyles of people. Leave "marriage" for all the various churches. Think about it. The official State should not "license" religious ceremonies. Any religious ceremony. Bris, communion, marriage, bar mitzvah....etc. Better if straights, gays, atheists, all types of LGBT and whatever else is out there.... ALL of us ... get the exact same civil union from "the official State government" along with ALL the rights and obligations therein. The same equal RIGHTS for EVERYONE. Exactly like a driver license. Equal and fair for all.

And most importantly, .... leave the "M" word to all the hundreds of various Churches in America. Let churches and only the churches decide who they will or won't marry in their Church. And any other ceremony they offer in their church, temple or place or worship. That is their problem.

By insisting on "Gay Marriage" as a legal term of art, people who live in Church World mentally and spiritually WILL feel threatened and under attack. They will fight back with bare teeth....forever. It sets up a religious war. Religious wars NEVER go well for anyone involved.

I know the terms "marriage" and "spouse" are deeply entrenched in all our laws rules and regulations and rights...etc. in the very fabric of our national history. Going back 200 years. That was a mistake. Like putting "God" on Federal money. The "M" word goes back way further than 200 years.

Has no one in the dept of justice ever heard of "find and replace" function on Word? Just allow "wife" "husband" "spouse" "partner" to ALL be non-gender specific. Male or female. And "find and replace" the term "marriage" in all the State law books and "replace" with "Civil Union".

Now straights can no longer get "married' by the State. No one can. Civil Union only for all. If anyone wants to get married in whatever Church they are part of (and there are hundreds) .... they must FIRST have a civil union from the State they live in ..... and then they can go get married if they want in any damn Church, Temple or house of Worship they want.

See how this works? Now the official STATE govt. is out of the "marriage" business.

Problem solved.

Mar. 27 2013 10:19 AM
Midge from 88.5 FM

How is this nation doing? Abortion of girl babies and boy babies, human trafficing, high rate of juvinile incarceration, unwed mothers, self-texting nude pictures of teens,condom promotion, soliciting of children for sex on the internet by pedophiles, homeless children, drug overdoses by children. And now, girls mothered by lesbians who are anti-men. Homosexual men who are anti-women fathering boys. This definitely is the receipe for a healthy environment and an even greater future for this country. It's not about the sacrament of marriage, it's about BENEFITS!This is not a Supreme Court issue.

Mar. 27 2013 10:05 AM
Robert from Manhattan

To answer Brenda's question - DOMA is not being over-turned in congress because a majority of politicans are cowards. They are too worried about the next election, worried about attack ads from special interests groups. Its the same with Gun control regulation, which is supported by a large majority of Americans. The people we elect are mostly spineless.

Mar. 27 2013 09:13 AM
Brenda from New York City

I'm hardly a legal expert, but I do wonder why this issue is being (hopefully) decided by the Supreme Court. Why is DOMA not being discussed (and overturned) in Congress by people who were elected? If the polls are even remotely accurate the majority of the electorate supports equal marriage.

Mar. 27 2013 07:43 AM

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