David Boies: "Discrimination Can't Survive in the Marketplace of Ideas"

On Thursday at the Commonwealth Club here in San Francisco, attorney David Boies, one of the head litigators in the landmark Perry v. Schwarzenegger case, reflected on Judge Vaughn Walker's decision to overturn California's Proposition 8. Mr. Boies argues that opponents of gay marriage rely on slogans, rather than facts, concluding "when you're up on the witness stand, eventually there's no place to hide, and when you can't hide, discrimination falls." 

Mr. Boies noted that "discrimination can survive in the darkness, it can survive unchallenged but it can't survive in the marketplace of ideas." He then added that it was "a great day for all Americans" because any discrimination diminishes all of us.

At times emotional, he said that the country was founded on "a culture of equality" and though imperfect at that start over the long sweep of the nation's history we have expanded the scope of that equality. It is only in the area of gay and lesbians rights that the state still stands in to deny an entire class of people their constitutional rights. Mr. Boies said the ruling being "an important first step" in ending discrimination against Americans on the basis of their sexual orientation.

"Fundamentally, we cannot allow individual rights to be determined by any majority, no matter how large," emphasized Mr. Boies. "If you do then you don't need a Constitution, the whole point of a Constitution is to say there are certain rights that the majority does not have the right to take away from the minority and that we are not going to put, as the Supreme Court said in 1933, fundamental rights up for a vote."

At one point he noted that the "concept of equality is baked into the American soul" but lamented how nations like México, Argentina, Spain and South Africa have moved ahead of us in the "march to equality."

David Boies is a lawyer and Chairman of Boies, Schiller and Flexner. He has been involved in various high-profile cases in the United States. Following the 2000 U.S. Presidential election, he represented Vice President Al Gore in the lawsuit Bush v. Gore. Together with former Solicitor General Theodore Olson, the opposing attorney in the Bush v. Gore case, Mr. Boies have significantly changed the course and the parameters of the debate over gay marriage.

The full program including all David Boies' remarks is available at Fora TV.

From David Boies' op-ed in the San Francisco Chronicle post the verdict:

At the beginning of the trial in January, we said we would prove three propositions:

First, that marriage is a fundamental right - a proposition with which even the defendants agreed. This is important because we are not asking the courts to establish a new right, only to hold that an existing right cannot be denied based on sexual orientation.

Second, we proved that depriving gay and lesbian couples of the right to marry seriously harmed them - and seriously harmed the tens of thousands of California children they are raising - economically, socially and psychologically. We also demonstrated that when the state decrees that a gay or lesbian relationship is not worthy of being sanctified by marriage, it sends a dangerous signal to some people that they are second-class citizens to be disapproved and perhaps feared and that discrimination and even physical harassment could be justified. Although the defenders of Prop. 8 initially sought to argue that domestic partnerships are an adequate substitute to marriage, at trial even the defendants' own expert on cross-examination conceded, demonstrated by consistent expert and empirical evidence, that they are not.

Third, we said we would prove that the defendants' claim that permitting gay marriage would somehow undermine heterosexual marriage is entirely bogus. This is a matter of both common sense and experience. After all, what heterosexual couple do you know of who would decide not to get married because their gay neighbors can get married? Moreover, countries as Catholic as Argentina and Spain, as different as Sweden and South Africa and as near as Canada have embraced gay marriage without any noticeable effect - except the increase in human happiness and social stability that comes from permitting people to marry for love.

At trial, we went further, demonstrating by uncontradicted evidence that permitting gay marriage strengthens, not weakens, the institution of marriage and the goals it serves. Even the defendants' expert agreed that he had no evidence to support the defendants' claims, and defendants' counsel had to admit he simply "did not know" what effect, if any, gay marriage would have on the institution of marriage.

Unable to defend Prop. 8 on the merits, defendants argued that it is protected from constitutional challenge because it was passed by 52 percent of California voters. But if we were prepared to leave minority rights up to a majority vote, there would be no need for a constitution - and many state laws discriminating based on race, sex and religion would plague us all. Defenders of Prop. 8 also sometimes suggest that it should be upheld because it returns California to the practice throughout the United States up until the last decade. But as Justice Anthony Kennedy elegantly wrote when the U.S. Supreme Court overturned state laws prohibiting consensual homosexual conduct, history is no justification for continued discrimination and, "Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."

Tags: LGBT Issues, Gay Marriage, President Barack Obama, Proposition 8, David Boies, Theodore Olson, Perry v. Schwarzenegger (all tags)


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