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.

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