An Important Discussion on Marriage for Gay Couples in the Supreme Court
Published June 18, 2013
President, Third Way
Senator Kirsten Gillibrand (D-NY)
Co-Counsel In Hollingsworth v. Perry
Lanae Erickson Hatalsky,
Director Of Social Policy And Politics, Third Way
Location: Washington, D.C.
Time: 12:00 p.m. EDT
Date: Tuesday, June 18, 2013
Federal News Service
JONATHAN COWAN: Good afternoon, everyone. I’m Jon Cowan, president of the Third Way. When John Kerry lost in 2004, many argued that his fate had been sealed by the Massachusetts Supreme Court decision, which allowed the state to become the first where gay couples could marry. Scroll ahead four years later, we celebrated the historic election of President Obama, but we also mourned another painful loss: the defeat of Proposition 8.
We at Third Way decided then to invest a huge amount of time and resources in understanding how we could turn that loss into victory. To do that, we needed to persuade Middle America to support marriage for gay couples. So we launched the Commitment Campaign, which aimed to change the conversation from one about rights and benefits to one about lifetime commitment.
Working closely with incredible partners at the state and federal level, with advocacy groups, policymakers, and passionate leaders like Senator Gillibrand, we asserted that gay couples want to marry for the same traditional reasons: love, responsibility, and commitment. And that reframing proved quite successful.
Now, on the verge of a potentially historic Supreme Court set of decisions, we want to use today’s discussion to peer into a crystal ball and envision what a new reality might look like. And thankfully, we have two of the most influential voices on the issue to help us.
Senator Gillibrand is a true champion for gay couples. She played a role in passing – key role in passing marriage in New York in 2011. Her advocacy for LGBT Americans was nothing short of tenacious during the “don’t ask, don’t tell” debate, to the point where Senator Lieberman, the sponsor of the bill, joked that he had, quote, “GOP colleagues begging him to call off the New York pit bull,” end quote.
She was an original sponsor of the Respect for Marriage Act and launched an online campaign, several years ago, to build national support for DOMA repeal. Newsweek and the Daily Beast have appropriately dubbed her one of the 150 women who shake the world.
We’re also joined by David Boies, chairman of law firm Boies, Schiller, and Flexner, and co-lead counsel on Hollingsworth v. Perry, the Supreme Court case challenging the constitutionality of Prop 8.
In 2009, he and Ted Olson, his opposing counsel in Bush v. Gore, decided to bear together as an odd couple and file a bipartisan federal lawsuit. They made the bold argument the U.S. Constitution guarantees all Americans a right to marry and that Proposition 8 was violating that guarantee for gay couples in California. Many questioned their strategy, but these two extraordinary litigators won judgments, establishing a constitutional right to marry for gay couples in California in both the district court and the Ninth Circuit Court of Appeals.
It is no wonder that Time Magazine called him one of the 100 most influential people in the world.
With these introductions of these two superstars, I’ll turn it over to our own superstar, the deeply talented and also tenacious director of social policy and politics, Lanae Erickson Hatalsky, who’s led our Commitment Campaign since its inception.
LANAE ERICKSON HATALSKY: Thanks, Jon. And thank you so much both for joining us here today.
Senator, I’d love to start with you and just take us back to 2011 for a moment, which seems a lifetime away on this issue at this point. You, as Jon said, were really a key player in your own state getting marriage passed for gay couples. And you did everything from keeping your own whip count to calling key senators in the state and making the case that they should vote for the bill. But you’re also from a very rural and moderate part of the state. So what did you see after gay couples were able to marry in New York? How did people react in those parts of the state and what do you think that portends for the country’s reaction if the Supreme Court does strike down the Defense of Marriage Act and Prop 8.
SENATOR KIRSTEN GILLIBRAND (D-NY): Well, I actually believe the fight for full equality for all Americans is a generational issue. And I feel that this issue really speaks to younger generations. They don’t understand why you would ever discriminate against anyone based on who they love. So that was one of the issues that really propelled us in fighting for the “don’t ask, don’t tell” repeal on the federal level.
We also had the argument that we were undermining military readiness, which appealed a lot to our moderate colleagues. But when we tried to take marriage equality forward in New York State, we did have a first failed vote. And we decided, how do we get moderates to understand this is fundamental to human rights in our state? And so we just tried to really address discrimination where it lies. And having some votes in advance, like an anti-bullying vote, to say, well, why would you allow a child to be bullied because he’s gay or perceived to be gay? And we were able to get moderates and Republicans to say, I don’t think they should be bullied, let’s protect them, and then go on and say, well, what about adoption rights? A loving couple should be able to adopt in our state, regardless if they’re an LGBT couple. And they agreed.
And so with rolling those layers of discrimination back, by getting Republicans to vote for those two other issues, that was able to build the support for fully equality, in our state, for full marriage equality.
It also helps that a state like Iowa beat us to the punch. It’s embarrassing for New York that Iowa beat us to the punch. (Laughter.) But I think that’s good for different governors around the country to understand this is a civil rights, human rights issue that really shows who you are as a leader and whether you’re going to push hard for it. And I think that’s helped us all across the country.
So I think that as we begin to push this issue forward on the federal level again with the repeal of DOMA, I think common sense comes to play. And we see different senators who are moderates, changing their views on it, largely because they are talking to their families. They’re talking to their communities. And people are challenging senators who may be the generation above me to say, look, dad, I think you should ensure equality for all my friends, all our friends who have children, and make sure their families are protected. And that’s making the difference.
So I think things are changing. I think momentum is with us. You need to build on each and every success as you move along. And we will achieve full equality in this country.
MS. HATALSKY: So a lot of people have speculated that we may see a five-four decision out of the Supreme Court with the conservative justices writing a pretty vitriolic dissent, as they have in the past, on some of these issues. It may not be the case, but if that does come to pass, do you think that that will change how Americans react to the decision and do you think that shows that it’s still divisive, or is the Supreme Court just that far behind the rest of the American people?
SEN. GILLIBRAND: Well, most people look at Washington and they know it’s broken. And so whether they’re going to include Congress in the same sentence as the Supreme Court, I think they will see a backward decision out of the Supreme Court is nothing new.
The American people have already decided. They want full equality in this country. It’s as clear as day. So if, you know, Congress continues to live from the past – I mean, really, not even taking on issues that are pressing today – it will be just another level of discouragement of the American people about the lack of reform happening here. And I think they will have the same negative view of the Supreme Court if they come out with a decision that doesn’t reflect our values as a nation.
MS. HATALSKY: So David, let’s talk about how you got into this debate. Take us behind the curtain for how it is odd couple really formed. What made you and Ted Olson decide to take this issue on and how did that come about?
DAVID BOIES: Although Ted and I are obviously on opposite sides of the political spectrum in a lot of ways, we’re good friends, and we talked over a number of years about wanting to do something together. And when this opportunity came along, I think each of us, from a somewhat different perspective, saw this as the defining civil rights issue of our generation.
When I got out of law school, I did civil rights work in Mississippi in the mid-1960s. And that era racial injustices were really the defining civil rights issue for our country. Today, the defining issue in civil rights is really sexual orientation discrimination. It’s – we’ve got long ways to go in racial and gender areas, but discrimination based on sexual orientation is the last large bastion of official government discrimination, where government says to its own citizens, you’re not equal. And I think both Ted and I thought it was critical that we stop that because not only is that harmful in itself, but it sends such a terrible message to other people. It sends a message to people that says it’s OK to discriminate against people based on their sexual orientation.
And when you say – when you have that message, there’re going to be twisted minds that develop that into violence, in all sorts of other kinds of acts. It’s not that most people who oppose marriage equality are bigots or want to hurt people. It is that the message is so harmful that it is taken by other people and twisted into the kind of violence that people have been subjected to.
So I think we both thought that this was the most important civil rights issue that we had and I think we both thought it was not a Republican or Democratic issue, not a conservative or liberal issue. Everybody, conservative or liberal, Republican or Democrat, has a vital interest in equality, a vital interest in protecting the constitutional rights.
So I thought – I think we both thought that this was a great case for us to take on and a great case for us to take on together because simply by taking it on, we did two things. One, I think we did send a message that this was not a partisan issue.
The other thing is we attracted a lot of attention to the issue. I mean, people kept saying, this odd couple, how could Boies and Olson agree on anything? And I think the fact that we were together led people to take another look at this issue. And this is an issue that I don’t think there’s another side to. This is an issue that if you subjected to scrutiny, I think people are going to come out the same way. And I think the difficulty was getting people to really think about this, as opposed to just pass it off. Once we started to get people to think about the issue, I think people’s minds began to change.
MS. HATALSKY: So obviously, we are all waiting with bated breath for the decisions from the Supreme Court, which we hope will come out either this week or next, and I think that’s why there are so many folks in this room and in that timely way. Can you tell us a few of the options that the court might take on our case and then also lay out what the court could do in a menu of options on the DOMA case?
MR. BOIES: Sure. With respect to marriage equality, the court really has a lot of options in front of it. It could affirm the courts below and hold that discrimination based on sexual orientation is unconstitutional under the Equal Protection or possibly the Due Process Clause. And it could do that in a way that applied to every state in the union because obviously the Constitution applies to all 50 states.
They could also, however, affirm the holdings below that held Proposition 8 unconstitutional by focusing on aspects that are either peculiar to California or peculiar to six or seven other states. For example, the Court of Appeals in California – the Federal Court of Appeals agreed with us that Proposition 8 was unconstitutional, but they did so without reaching the broad equal protection and due process arguments that we made and that we won on in the district court. And what the Ninth Circuit Court of Appeals said is once you grant rights to people, you can’t take those rights away without due process.
And what had happened in California is that the California Supreme Court had held that marriage equality was a constitutional right under the California constitution. And then what happened was the Proposition 8, by referendum, changed the California constitution to limit marriage to people of different sexes.
The result of that was what you had was a right that had been granted, that people had that was then taken away. And under Supreme Court precedents, the hurdle for justifying the taking away of a right can be viewed sometimes as not as restrictive or hurdle in terms of court intervention than if you are establishing a new right.
So another option the court has is to decide our way, affirm the decision below, but do so on the California specific grounds that the Court of Appeals decided on.
Third way that we could win – a lot of ways for us to win – the third way that we could win is the solicitor general of the United States argued that in seven states that have broad civil union legislation, there was no possible justification for preventing gay and lesbian couples from having the title of marriage attached to their relationship. That when you restricted that title, that label, you were simply establishing a badge of inferiority on the group that was discriminated against. And that you didn’t have to reach the issue as to whether there were reasons or lack of reasons for limiting marriage and civil unions and relationships to opposite sex couples because once a state had decided that it was going to have broad recognition and approval of same-sex relationships, then you couldn’t discriminate in terms of the label that was applied.
The fourth way we could win is that – a technical legal argument. It’s called “standing.” People who either challenge or defend a law have to have what lawyers call standing. That is they have to have a particular concrete interest in the result. Somebody who was unrelated to Proposition 8 clearly could not have come in and defended that statute or that initiative in the courts. And that was important because while the governor and the attorney general did not agree with us at the district court level, once they lost they did not appeal. And so the only people that appealed were the proponents of Proposition 8, the people who had put in on the ballot. And the question is do those people have standing to come into court and defend it.
Under Supreme Court precedent, they probably do not have standing. Particularly when constitutional questions are involved, the court’s been very restrictive in terms of whom they grant standing and they’ve never granted standing to private citizens who do not have a fiduciary relationship to the state. And one way that the court could solve this particular case is to hold that these people do not have standing. What that would mean is that that would reinstate the district court case. It wouldn’t be precedent outside of California, because it’s only a district court case, but it would establish marriage equality in California.
The fifth way that we could win – and actually, each one of these ways sounded from the questions at the time of the argument in the Supreme Court as if there was one or more justices that were seriously considering each of these approaches. The fifth way is to dismiss cert as improvidently granted. That doesn’t happen very often, but it happens once, twice, three times a year. And that’s when the court has actually taken the case, but after they hear the arguments, they decide this really isn’t the right time for us to decide this case. So they simply dismiss the case. If they did that, that would reinstate the Federal Court of Appeals’ decision holding Proposition 8 unconstitutional.
Any one of those ways would establish marriage equality in California and our clients would get married. Obviously, we could lose. And the way we would lose is that the court would hold that these people do have standing. They would hold that you can’t take away a right. And they would hold there is no protection under the Equal Protection clause or the Due Process clause for gay and lesbian couples.
I never want to predict what the Supreme Court is going to do. I certainly hope it doesn’t do that. I don’t think there’s any constitutional basis for it to do that, but that’s a possibility.
MS. HATALSKY: So can you – obviously, the DOMA case is not one that you’re legally involved with, but I’m sure you’ve heard of it.
MR. BOIES: Oh, yes, oh, yes. Yeah. Yeah. (Laughter.)
MS. HATALSKY: Maybe you can give us a quick rundown of what a few of the options might be on that case as well.
MR. BOIES: Well, in DOMA, you have some of the same options. They could either uphold DOMA under the Constitution. They could strike DOMA or the various sections of it down under the Constitution, or they could hold that one or more parties don’t have standing. There are standing issues in the DOMA case as well. Standing for the people appealing, standing even for the administration in the DOMA case.
So I think that you could get a decision on DOMA that was limited in terms of standing. Again, because the lower court decided in favor of equality, any decision of lack of standing now leaves that decision in place and so DOMA would be held unconstitutional, at least in the circuits where there had been decisions.
So I think you could have a series of possibilities in DOMA. I think you’re less likely to have a fractured court in the DOMA case than in the marriage equality case.
I think that the – in the DOMA case, you’re likely to have at least five justices, maybe more, all coming together for – in one opinion. In marriage equality, you might end up where you don’t have five justices signing on any single opinion. And so you have to aggregate what the justices hold.
MS. HATALSKY: So Senator, David had said he won’t make a prediction, but do you want to try your crystal ball and give us a sense of where you think the court might be heading?
SEN. GILLIBRAND: I definitely don’t have a crystal ball, but I won’t make a prediction, but I will make you a promise. We will repeal the Defense of Marriage Act legislatively, regardless of what the Supreme Court does. And that is something that I think we have to do because, as David described, the DOMA case is reviewing only one part of the Defense of Marriage Act, Section 3, which defines what a marriage is, whether it’s between a man and a woman. And Section 2 still will remain. And that’s the one that says one state who is against gay marriage doesn’t have to recognize the rights of someone from a state that has recognized gay marriage.
So our challenge to underline that because I think – I’m very hopeful that – as David has described so effectively, that we will have sound level of victory of the Supreme Court. That is my hope and goal. And if we do, we want to make sure that if a marriage is recognized in New York, that if that couple does move to a state like Texas, they can carry their federal rights, privileges, and protections with them because, you know, families often do have to move and you want to make sure that those children of those families are protected, that they have Social Security benefits, that they have access to federal benefits like food stamps.
We want to make sure that when a spouse dies, that that family isn’t called upon to pay unnecessary taxes. We want to make sure those families are protected. And that’s frankly the more than 1,000 rights, privileges, and benefits that the federal government provides, are almost all to protect families. And that’s, to me, what this really is about; all our nation’s children should be protected and all families should not only be respected, but looked after, and I think that’s what we’re going to have to do on the legislative side.
MS. HATALSKY: So you’ve talked about a lot of the important protections that go along with marriage at the federal level. One of them is immigration. And that’s what the Senate is discussing on the floor right now. Many people were disappointed in the decision not to add the Uniting American Families Act for binational same-sex couples into the Gang of Eight bill. Obviously, some folks in the Gang of Eight have said that they will not continue to support their own bill if that got at it. And so there was a decision made not to. But there’s still a possibility it could come up on the floor.
What do you think will happen with that if a decision comes out striking down DOMA? What do you think will happen if we get a negative decision? And what if we don’t know yet?
SEN. GILLIBRAND: I’m very hopeful that we will get a vote as an amendment. Senator Leahy and I have co-sponsored amendments to make sure that LGBT couples can sponsor their spouses for immigration. And I’m very hopeful that we will get our floor vote.
I don’t think we have the 60 votes we need yet to succeed on that floor vote, but I still think it’s essential that we call the vote because with all issues of civil rights and all issues of equality, you have to build on every success and you have to call people to the table to be held accountable for the votes. We want to be able to say, up or down, do you support full equality? Do you believe these marriages should be protected? And I think it’s essential that we have the chance to at least voice our views on that issue. So I’m hopeful that it will be included.
I think we have good protection, though, if we are successful in the Supreme Court. And that would allow then people to sponsor their spouses if we find DOMA unconstitutional on equal protection grounds. I think that will then allow spouses to sponsor their spouses in states that they’ve guaranteed that privilege.
MS. HATALSKY: Because in each one of the federal regulations and laws, there’s a different test for whether a relationship is recognized by the federal government or not, and thankfully, on immigration, the current state of the law is that it’s based on the place of celebration of that wedding and not the place where you are resident. But for example, on Social Security, you might see a person move from New York to Florida to retire, and then lose their spousal survivorship benefits.
SEN. GILLIBRAND: And that’s why we want full portability. And that’s, honestly, the reason why we have to work legislatively. Because we have to be able to unwind that discriminatory law and make sure that these rights carry regardless of where you live.
So that is going to be our goal, regardless of what the Supreme Court does, we will proceed to underline DOMA legislatively as well. And I know Senator Feinstein, who is our lead sponsor of that bill, is dedicated to moving forward.
MS. HATALSKY: So let’s talk a bit about what the response might be from the other side. Certainly, the Republican Party is moving and having Ted Olson out front on that certainly helps. But they’re moving quite slowly in some people’s estimation. And Senator Portman came out earlier this year as the first courageous Republican senator to speak out in favor of marriage. And Senator Kirk came after that. But do you think that they’re increasing – and if division on this issue is going to affect how they respond to the marriage decisions when they do come out, when we know that there are still some voices within the Republican Party that are very opposed to marriage?
SEN. GILLIBRAND: Yes, I think they will continue to stand the ground on their own viewpoints on this issue. But public opinion is moving against them. And if you have almost 60 percent of Americans, all across the country, even in red states, saying we support marriage equality, things are changing. And I do think it’s a generational issue. I do think families are having serious conversations around the kitchen table, which I think really matters because I think when everyday Americans stand up and demand change, that’s what our democracy’s all about. And those conversations at those kitchen tables are the most important conversations we could be having.
And I think Senator Portman was a perfect example. And even though he was so blessed to have a family member say, Dad, I need you to change your views on this, not every person in this Congress will have that. They will have someone who is close to them. They will have someone in their community, someone who is very close to their children, someone close to them who hopefully will stand up and say I need you to recognize me and the value of my marriage and the people I love and my family. And I want you to protect my children in the same way you’re protecting your children.
That conversation has to happen with every Congress member to make a difference. And I think it will. And so I’m very hopeful that this is something we will achieve over the next few years.
MS. HATALSKY: So do you expect there to be legislative attacks in – coming out of the House potentially that would be attached to bigger bills that we’ll have to deal with, and if so, what do you expect those to look like?
SEN. GILLIBRAND: We’re – they’re going to fail. We are going to beat all of them. (Laughter.)
MS. HATALSKY: There you go. (Applause.)
You’re obviously very optimistic, but there are some, including Justice Ginsburg, who have talked about timing and likened these cases to Roe v. Wade. And some people thought the fact that Justice Ginsburg was saying in public speeches that Roe shouldn’t have been taken when it was, that it should have maybe waited for a while and let the states work it out. And that then there wouldn’t have been so much backlash and we would have had a right that was more secure, was an indication that she wasn’t ready yet to go all the way and go big on the Prop 8 case.
Senator and then David, do you think that’s true? Do you think she was telegraphing her beliefs? And do you think there’s a possibility that there could be backlash if we do have a court decision that grants a nationwide right to marry?
SEN. GILLIBRAND: Why don’t you take the Justice Ginsburg –
MR. BOIES: OK. Well, I think if you look at Justice Ginsburg’s comments in context, she was not really saying that they shouldn’t have decided Roe v. Wade the way they did. She was saying that they should have explained it better. She was saying that to bring that decision based on the announcement of a new constitutional right was really the wrong way to explain that decision to the American people. And it sounded like or could sound like the Supreme Court had established a new right where there was no right before.
And I think one of the things that you were saying was that in writing Roe v. Wade, the court could have done a better job of explaining to the American people why this was an important constitutional right.
I think that does not apply at all to marriage equality. For one thing, we’re not trying to establish a new right. The Supreme Court has held repeatedly that marriage is a fundamental right under the Constitution that the states cannot abridge. Wisconsin passed a law that said that if you had abused one marriage, you can’t get another marriage license. If you are child support scofflaw, you abuse your spouse on a first marriage, you can’t get a marriage license. So that’s a pretty rational approach.
Supreme Court said you can’t do that. Marriage is such a fundamental right. It implicates the rights of liberty and association, pursuit of happiness in such a fundamental way that even if you have a legitimate reason to restrict marriage in that kind of situation, states can’t do it.
Missouri had a law that said that imprisoned felons could not get married. And they tried to defend that law on the grounds that they couldn’t propagate. They couldn’t have physical relations. And that it was disruptive to allow people to get married.
The Supreme Court said that may have some rational basis, but that’s not enough because marriage is such a fundamental right. It is so important to human dignity that you can’t deprive even imprisoned felons. You know, you can – spousal abuse, child support scofflaws, felons, all of those people can get married because it’s such a fundamental right.
So we’re not trying to establish a new right. We’re simply saying that that right ought to be equally available to law abiding loving couples, regardless of their sexual orientation. So I don’t think that is the kind of issue that really would work here. I also think that if – as Senator Gillibrand says – this is a generational issue. The backlash is going to be, you know, old white men like Ted Olson and myself. (Laughter.) And there aren’t that many of us. There’ll be fewer and fewer of us as time goes on. (Laughter.) So I don’t think that you’re going to see any practical backlash because the people – the young people – whether they’re conservative or liberal, Republican or Democrat, all recognize the imperative of equality. And it’s because they know people who they know are gay and lesbian.
Most of the people of my generation grew up, yes, knowing people who are gay and lesbian, but we didn’t know that they were because most of them had to hide it. When I was graduating from high school, President Eisenhower issued a executive order that said that the federal government could not employ any gay or lesbian in any capacity. You couldn’t be a clerk typist or a mail carrier based on your sexual orientation.
In that kind of environment, people were afraid to show their sexual orientation. As a result, people grew up not knowing people. And when you grow up not knowing people, it’s easier to discriminate against them.
What you can’t do is you can’t discriminate against the people that you walk to dinner with, that you play golf, that you go bowling with, that’s on your baseball team, or your son’s baseball team, or your daughter’s baseball team. These are people who you grew up with, you got in your home. You know that they’re just like you. And that makes discrimination so much more difficult.
And I think that that’s what’s changed this country because equality really is (built ?) into our soul as Americans. And we discriminate – we’ve been able to discriminate historically by pretending that some group was not really the same as we were, based on gender, based on race, based on religion, based on sexual orientation. But when you live with people, you know that they’re not different. You know they’re just the same as you are. And that’s what our children, that’s what our grandchildren are learning, and this is not going to go back. This is only going to go one way.
MS. HATALSKY: So your Eisenhower example is a very real example of how far we’ve come in your lifetime, but we’ve also come a really long way since you filed your case. I was looking back and the – when Proposition 8 was passed, there’re only two states with marriage. We had Massachusetts and Connecticut, both through court decisions. No voters had voted for it at the ballot and no legislators had passed it.
And there were folks in the movement that questioned your strategy at the time, going forward, saying it’s not time yet. It was just months after Proposition 8 had passed, people were very downtrodden. Can you talk a little bit about what made you decide to go big and have you won over those skeptics now?
MR. BOIES: Well, I think we’ve won over some of the skeptics. The – I think that the result that we got in the district court and the eloquent decision of the district court, I mean, everybody ought to read the district court decision on this case. It ought to be required reading in civic councils because it traces not only the history of discrimination against gays and lesbians, but it traces the history of discrimination in this country and the way that we’ve moved from really a very discriminatory society to an increasingly equality oriented society. And it’s a great opinion. I think that has made a difference.
On the other hand, I think that the people who questioned what we were doing had a rational basis to do that.
MS. HATALSKY: That’s a lawyer joke.
MR. BOIES: Yeah. (Laughter.) The test under certain discriminatory constitutional provisions, whether there’s a rational basis to do it or not.
And we took that seriously because those were people who, unlike Ted and myself, had spent years, decades, sometimes lifetimes fighting for equality in this area. And so we took that very seriously and we thought about it. We ultimately concluded to go forward, I think, for four reasons. First, we had people who wanted to get married. And as a lawyer, it’s very hard to say to a client I’m not going to – you’ve got a constitutional right to marry. I believe that. But I don’t think this is the right time for you. It ought to be another generation. I just think that’s – I think that’s very hard, very hard to do. And for Ted and myself was impossible to do.
I think we also thought that major civil rights progress only comes from attacking discrimination. It doesn’t come from accepting discrimination and trying to wait for people to decide not to discriminate. I think that you have to attack discrimination, and even if you lose, you can build on those attacks going forward.
There hasn’t been any area of major civil rights advancement where there have not been losses. And I think that we thought that, you know, take Dr. King’s “Letter from Birmingham Jail” seriously, that we really needed to bring that attack now.
I think the third thing was that we thought that bringing the attack, particularly with Ted and myself doing it, would draw attention to this issue. It would force people to confront the issue. It would force people to think about the issue. And that the more they thought about the issue, the more that they would come out, I think, the right way.
And last, we thought we’d win.
MS. HATALSKY: Well, we certainly hope that that’s the case. (Laughter.) You did outline five ways for you to win and only one for you to lose.
MR. BOIES: That’s right, yeah.
MS. HATALSKY: So odds are in your favor. (Laughter.)
MR. BOIES: Right, yeah. In the beginning, Ted and I would say – me more than him – that I promise to get the four justices that I got in Bush v. Gore and their descendants. He would get the five justices he got with Bush v. Gore and their descendants. (Laughter.) And we’d get a unanimous Supreme Court. (Laughter.)
MS. HATALSKY: I think that’s fair. So obviously, we aren’t losing anymore. Thankfully and we’ve seen huge amount of political change. Senator, you’ve seen in recent polls 57 percent support for marriage. We have twice as many marriage states now this June than we did the last June. And we have four huge victories at the ballot first time ever. Why now, why has this past 12 months been so crucial to picking up our momentum?
SEN. GILLIBRAND: I think momentum’s created by those kitchen table conversations. And when every state decides we’re going to put this in play in our state, we’re going to fight for equality here, it continues to drive the debate. And when one state succeeds, it inspires the next state to take on the battle. And even if you have a loss, it just makes people fight that much more. So I just think that this has become a national conversation.
And I think it’s really important that it has become bipartisan. I think it’s extremely meaningful that David Boies and Ted Olson took these cases on from a legal perspective. I also think it’s meaningful that we had the signatures of 100 prominent Republicans serving in many Republican administrations, coming out and saying, we support marriage equality, including the former chair of the RNC. So you’ve taken away the argument this is Democrats versus Republicans, and it’s become a moral issue, where it really should be. This is about who we are, what we stand for as a nation. We believe in equality, as David said, it’s fundamental to our American values. And that makes different legislators and governors want to stand for marriage equality. And that’s a really good thing.
And that’s why I think we just keep fighting. This is something we shouldn’t let up on. And we can fight discrimination on every level. You know, we have an adoption bill on the federal level, too, to say gay couples can adopt and be protected in doing so. It would be so meaningful. We have 100,000 kids waiting to be adopted who are foster care children, who have loving families that desperately want to adopt them. We should not stand in the way of that.
We have basic workplace discrimination legislation to say you can’t discriminate based on someone’s sexual orientation. Moving those bills forward is meaningful. Having the vote on the immigration amendment is meaningful. And following up on DOMA repeal matters. And you just have to keep attacking the problem. And the more you do, you have more kitchen table conversations.
And just as David said, you then realize many people you love, many people you care about are so deeply affected by this discrimination. It makes you that much more dedicated to eradicate it.
MS. HATALSKY: So David, the senator mentioned one of the many briefs that were filed in your case. I think you had 114 and the Windsor case had 98. I’m sure everyone read every single one of those all the way through. But what – which one of those briefs do you think will be very influential for the justices and then which ones really kind of changed the public conversation?
MR. BOIES: I think it’s always very hard to say. I think that the brief that Senator Gillibrand mentions was very important because it showed that this was a bipartisan issue. It showed that this was not a Republican-Democrat, conservative-liberal issue. And it said to the court discrimination is out of step, not only with the public, but with both political parties. And I think that was an important message to send to the court and to the public. I think that it’s awfully hard to say what briefs actually influence the justices. It’s almost impossible, particularly before they decide. So I think that I don’t really have a good sense of what briefs are important to them. But I do think that the briefs that demonstrated the broad support for this constitutional right, across party, across conservative-liberal spectrum, I think those were very important.
You have something that is supported by the liberal groups and groups as conservative as the Cato Institute. This is an issue that people who believe in the Constitution, who believe in human dignity, who believe in equal rights, which conservatives believe in as least as deeply as liberals do, all have to be in favor of ending this kind of discrimination. And I think the briefs that demonstrated that I think were important to moving this discussion forward.
MS. HATALSKY: So I’m sure you listened very closely to the justices, that oral argument, was there anything that surprised you when you were listening to the two days and many hours of conversation in the court?
MR. BOIES: Yes and no. You always expect to get a variety of questions and we did. If there was anything that was a little bit of a surprise, it was the extent to which there were more than one justice who really questioned out loud whether this was the right time for the Supreme Court to weigh in on this decision.
As I say, usually, when the court takes a case, it’s going to decide it. But here, as the arguments unfolded, you saw at least some of the justices beginning to reflect on maybe on – they should not have taken the first of these cases to come up from the Court of Appeals. Maybe they ought to left other courts of appeals weigh in and let it percolate a little bit at the court of appeals’ level before the Supreme Court actually made a final decision. That would not be unusual and indeed many of the Supreme Court cases in the racial discrimination area came after allowing various courts of appeals to weigh in, give the Supreme Court the benefit of those opinions.
So that was something that was quite logical, but I don’t think any of us really saw it coming to the extent that we heard it in the oral argument.
MS. HATALSKY: So Senator, can you talk a little bit more about the real effect of what we hope is striking down the Defense of Marriage Act, what it means for real couples that live in marriage states now, and then what it’ll mean for people that don’t live in a marriage state?
SEN. GILLIBRAND: Well, you could even just look at Edie Windsor’s case. She was married well over two decades to her lifelong love Thea and when Thea died, because their marriage wasn’t recognized, she’d pay enormous amounts of estate taxes, over $300,000, which, you know, for some families could be crippling. And you have to imagine for families with children. You don’t have to win $1,000 that you’re going to be able to spend on taxes when you need to educate your kids, to provide for your kids.
And so it’s just a very stark example of how unfair these – the lack of protections are to families. The same challenges would come up about eligibility for support programs, whether it’s food stamps or whether it’s protections on someone’s insurance, life insurance, or so many different issues that the federal government weighs in on gets unwound if your marriage isn’t recognized. And a lot of those privileges really accrue during difficult times, grave illness, how you handle an illness of a spouse or death. And that’s when families need the most protection. That’s when kids need the most protection. And so that’s why I think this fight is so real. And it really is something that is urgent and a crisis for a lot of families.
Now also, on the immigration side, imagine being in love with someone who is not from this country. My husband is not from this country. He’s from England. And we had to go through the whole immigration process. And I can’t imagine how devastating it would be if I couldn’t live with him, we couldn’t live together, or if he was sent away from this country for some reason without any recourse. That would be devastating to our family and I could imagine it’s devastating to any family. So all of these protections matter. It affects real lives, real families. And that’s why we have to do right by them.
MS. HATALSKY: And for people that live in non-marriage states, how will the DOMA repeal affect them?
SEN. GILLIBRAND: Well, they won’t be protected. What the reality is – is because of the Windsor case – well, if on – example number one, on marriage equality outcome, if it rules that marriage equality is a violation of the Equal Protection Clause and must be applied to all states equally, that would be a slam dunk for all of us. We’d be very excited about that. That is – that would be our greatest hope.
But barring that, you will need to revisit Section 2 because the Edie Windsor case only addresses Section 3, the definition of marriage. Section 2 says you don’t have to listen to what other states say on the issue of marriage, your state gets to decide.
So we have to repeal DOMA entirely, so that we can say your federal benefits accrue regardless of where you live, and that is our goal, to make sure that they carry with you, travel with you, regardless of where you live.
So that’s going to take a legislative battle. We are building the support in the Senate now for that. We are very close to the 60 votes we need, closer than people think. We still have a lot of work to do in the House of Representatives, which is why, frankly, elections matter. And I think this issue should be a determinative issue for whether people will support a candidate. And I hope it becomes elevated in the national debate for people to choose, do you support full equality or not.
MS. HATALSKY: Senator Gillibrand has very clearly laid out what her next steps are. She’s going to get the Respect for Marriage Act pass on with her other champions in the Senate. David, what’s next for you if we don’t get the slam dunk? Are you and Ted Olson going to try to find the next case? Are you going to move on to some more riveting election law cases? (Laughter.) What do you see in your future?
MR. BOIES: I think there will be – if we don’t win it nationally, there will be additional litigation. This is not an issue that’s going to go away. And I think that we will fight in the legislative arena and we will fight in the courts. For example, we will bring lawsuits in other states. There will be lawsuits that are blocked that attack the DOMA provisions that do not allow you to carry with you your rights as violation of the Full Faith and Credit clause under the Constitution.
So I think that we will proceed – if we win anything less than full equality, you will find additional legislative battles and additional court battles.
MS. HATALSKY: Great. So I’ve gotten to ask many questions. Let’s open it up to all of you to ask some question for Senator Gillibrand and David Boies. We have two microphones that are circulating. If you can just announce yourself and then ask your question in a very brief way. And if you are not brief, I will cut you off. (Laughter.) Right over here.
Q: Hi, I’m Chris Johnson with the Washington Blade. I have a question for both of you guys, actually. For David Boies, I want to ask you, I’ve heard some reports that in the event the Supreme Court rules on the basis of standing that the outcome would be not that it would – that Proposition 8 would be repealed for everyone in California, but that only the plaintiff couples would be able to marry. I was wondering if you think that if there’s a decision on standing that that’d be an outcome that it only affected plaintiff couples.
MR. BOIES: Right, I – the question as to what happens if we win on standing, the district court opinion is reinstated, and that would affect everybody in California. It’s true it was only brought by two couples, but the defendants were the governor and attorney general and registrar in California. And there is an injunction against them enforcing Proposition 8. That injunction would prevent them from enforcing Proposition 8 with respect to any couple. Moreover, California is a particular example where both the governor and the attorney general strongly support marriage equality.
So they are going to – they are not going to be an obstructionist administration. They are going to recognize the law once the Supreme Court establishes what the law is, either by its own decision or by reinstating the district court decision. I am confident that the state of California is going to respect that and you’re going to have marriage equality for every couple in every county in California.
Q: Senator Gillibrand, you mentioned – you talked a little bit about the Uniting American Families Act. There’s another piece of legislation that people are really paying attention to, the Employment Non-Discrimination Act. I was wondering if you have a sense of timing to when this will come up in the Senate, when we’ll see a floor vote on that, and to get the 60 votes, I mean who – you need to have now six Republican senators. I was wondering if you could identify like who you think will be likely six who’ll be able to support that legislation.
SEN. GILLIBRAND: My goal is to have votes on both of those pieces of legislation this year. Obviously, we’re going to get through immigration and then we’ll maybe go back to guns and then maybe to the budget. And – (laughter) – so we have a lot going on, but the goal would be to try to have that vote between now and the end of the year. That would be my personal goal. And if not, then we push it to the spring.
But I want to have votes on these issues because they’re so vital to so many Americans. We’re working on getting bipartisan support. I think it’s terrific that we have Portman and Kirk publicly saying they support the repeal of DOMA. That means there’re good votes for LGBT rights. We’ve had, in the past, support on LGBT rights from Senator Murkowski and Senator Collins. So I’m hopeful that we can go back to them for their support on all these measures.
There’s a few other senators that we’re working with right now on trying to get their support. And I won’t out them. (Laughter.) I will let them do that themselves. But we do have a growing list of senators who want to work with us. So I’m actually quite optimistic that we can build the support we need over the next several months.
MS. HATALSKY: Next question, way in the back with the paper.
Q: Hi, thank you both for being here today. My name is Andrea Anastasi and I’m a law student at Temple University in Philadelphia. And I had a question for David Boies. Not to detract from the marriage equality conversation, but obviously you both have talked about discrimination and how much this – both marriage cases are about discrimination. And I believe that you said something along the lines of discrimination based on sexual orientation as the last front of the civil rights movement.
And so my question is basically what about discrimination based on gender identity, especially given the fact that transgender and gender nonconforming people are so integral to the LGBT community?
MR. BOIES: I agree with that completely. There was really loose language on my part. It is a sexual orientation, gender identity, anything that has to do with how you identify yourself and how your personal orientation affects you, whether it is gender identity or sexual orientation. So I think that is a – in fact, I think, to some extent, the issues with respect to gender identity can be even more discriminatory in our society today. So I would put all of that together. And when I was talking about sexual orientation, I was really just talking about that because of the focus of the gay marriage and marriage equality issue.
MS. HATALSKY: That’s certainly – and as Senator Gillibrand was referencing, it includes both of those types of discrimination and remedying them. Next.
Q: Hello, my name is Zenan (sp). I’m with Advocates for Youth here in D.C. I just have a question about UAFA especially since your colleague, Senator Schumer kind of opposed it in the Judiciary Committee. I’m not sure if you’re willing to reveal to us, but how do you see his vote coming in with the Leahy amendment? If it does come up to the floor at some point, will he oppose or support UAFA for the current immigration bill?
SEN. GILLIBRAND: You’d really have to ask Chuck how he’s going to vote, but I plan to be a very avid advocate. And I plan to talk to all my colleagues and urge them to support it. I think it’s really important.
MS. HATALSKY: Got one right in the middle up here.
Q: Hi. I’m Claire Chabert (sp) and I’m with the Anti-Defamation League. Senator, building off of his question, how will ENDA effect or be affected by the DOMA decisions in terms of policy and strategy? Do you think it would be easier to pass or will there be more backlash on the Hill?
SEN. GILLIBRAND: I think it will improve our chances, and it just goes to my view that every time you defeat discrimination, you create a more powerful momentum to defeat it the next time. So I think it just builds – it continues to build momentum and I think it helps our case.
MS. HATALSKY: And in fact, that’s the strategy that was used in New York.
SEN. GILLIBRAND: Used successfully in New York. And we had to just – you know – for some people, they can see discrimination in some forms, but not others, and you can slowly bring them to see the full picture by calling the question of should you be discriminated in the workplace. Do you think someone should be fired because they’re gay? Someone may say, no, I don’t think so. And they’ll vote for you there. And they might not be ready for marriage equality, but again, getting their vote there may then prepare them to say, well, if you don’t think they should discriminate at the workplace, why wouldn’t you let them marry the person they love? It really helps to begin to – I mean, I think discrimination, you just have to peel back layer after layer until the individual you’re trying to convince realizes there’s no place for discrimination at all. And then they will side with you on these debates.
MS. HATALSKY: Right up here.
Q: Good afternoon. My name is Brendan Corrigan. I’m a rising three-year to the University of Miami School of Law, and a summer law fellow at the Human Rights Campaign. I wanted to first thank you both for your time this afternoon. I think I could say on behalf of everyone’s, I’m honored to hear you speak. I also want to thank you both for your advocacy work on behalf of equality, Mr. Boies in the legal arena and Senator Gillibrand in the political arena.
My question is for you, Senator Gillibrand. When will I have the chance to vote for you for president? (Laughter.) (Applause.)
SEN. GILLIBRAND: Well, I am personally urging Secretary Clinton to run in 2016. (Applause.) And I’ve told her I plan to support her in every way I can. So that’s my next big ambition. (Laughter.)
MS. HATALSKY: Way in the back, glasses and a white shirt. We’ll move a microphone towards you.
Q: Thanks. Senator, my name’s Ellen Sturtz and I’m interested in finding out if you’re willing to amend ENDA to remove the religious exemptions.
SEN. GILLIBRAND: Oh, yes. Yes, I am. (Laughter.)
MS. HATALSKY: That was a quick answer. (Laughter.) Next question. We’ve got one also in the back.
Q: Hi, my name is Sherrod Vokman (sp) and I’m with the National Gay and Lesbian Task Force. My question is about the interplay between the two decisions, particularly if we see DOMA stroke down at federalism ground, Mr. Boies, do you think that’ll have an impact on Prop 8 and on other efforts to get rid of state bans on marriage through litigation?
MR. BOIES: It shouldn’t. I think there is an argument that has been made by the other side that under federalism, even if you strike down DOMA, you should reinstate Proposition 8 because both would, in some people’s minds, respect, quote, “state rights.” This is not really a question of states’ rights. When we passed the Fourteenth Amendment, the explicit purpose of that amendment was to take away from the states the right to discriminate. When the Supreme Court decided Loving against Virginia, in 1967, which held unconstitutional a Virginia statute that prohibited interracial marriage, what the court said was that the Fourteenth Amendment prohibited the discrimination and prohibited the states from discriminating.
So this is not a question of federalism, not a question of states’ rights in terms of the marriage equality case. The reason that the federalism issue is relevant to DOMA is because the federal government has never had the responsibility for defining marriage. The legislature never has.
Federal courts have always had the responsibility to enforce the 14th Amendment.
MS. HATALSKY: Next question.
Well, I have one, given that I worked with the Senator a lot on “don’t ask, don’t tell,” what do you think, as we move forward, might be some lessons that we could learn from our fantastic success in “don’t ask, don’t tell” repeal and do you think that that repeal has helped us pick up this momentum and if so, how?
SEN. GILLIBRAND: I think it’s been essential because when we made the “don’t ask, don’t tell” repeal arguments, early on, people said, why are you doing this now. And even our advocacy groups said there’s no legislative solution. We need the president to not enforce it. And my view at the time was, of course we need a legislative solution because we don’t know who the next president is and whether they’ll want to enforce it. Something so discriminatory and corrosive should be on our federal books.
We had the added argument in military readiness, which really helped, because we were able to say, regardless of your views on marriage equality, this policy has led to the dismissal of 10 percent of our foreign language speakers, more than 13,000 personnel and more than 1,000 mission critical areas. You are denying some of our best and brightest from serving based solely on who they love. And that was an argument that resonated and it resonated with even the generals.
So the generals were able to come out and say they felt the policy undermined the whole integrity of the military because they were forcing people to lie every single day about who they are, who they love, what’s important to them. And that was enough, I think, to get a few moderates on our side, even if they weren’t ready to embrace full equality. It was a great stepping stone for this battle. I think the lesson of “don’t ask, don’t tell” is we have to tell regular people stories. And we have to make it about the individuals and their families and what’s happening to them.
If it’s not an emotional issue, it is not a winning issue because the bottom line is this is destroying people’s lives. And every senator and every House member needs to know that it’s their family that’s being affected. It’s their community that’s being affected. It’s the people in their great state that are going to be damaged by these corrosive rulings. And so that’s why it’s so important to bring this home, back to the kitchen table, back to the relationships of senators and their sons and their daughters and their grandchildren, because that’s fundamentally what any issue of civil rights and social justice are about. And that’s what we have to spend our time talking about.
So our lesson is be heard, make sure you talk about how these laws affect you, why it’s harmful to you, why it’s hurtful to you, and why it doesn’t represent who we are as Americans.
MS. HATALSKY: And now that we have people that are allowed to be out in the military, we have people who are married in the military. And that might be another great spokesperson for why we need the Respect for Marriage Act.
Can you talk a little bit about how this affects, in particular, service members that are married?
SEN. GILLIBRAND: Hugely. There are well over a dozen privileges that our LGBT couples do not have today, even though “Don’t ask, don’t tell” has been repealed, because of the definition of marriage. Huge benefits like survivor benefits, the ability to use the GI Bill, the ability to have certain basing privileges, education for your kids, so many different rights that are accruing to our soldiers, to our war fighters and their spouses that do not accrue to our fighting men and women who are LGBT, so is a huge problem that we – is one of the reasons why this repeal is so important, both through the courts and legislatively because the men and women who are sacrificing everything aren’t able to protect their families in the way they should be able to.
MS. HATALSKY: Are there other questions? Right there in the back.
Q: Hi, my name is David McKean, the legal director of Servicemembers Legal Defense Network. So I’m very appreciative to hear you talk about the military. One thing that we haven’t discussed yet is the role of executive branch implementation. I was wondering if each of you could speak about if we get certain types of rulings, what you would expect from the president in terms of implementing those decisions through regulatory reform, administrative actions to determine place of celebration versus place of domicile, things of that nature.
MR. BOIES: I think that it obviously depends on how broadly we win. Hopefully, we will win on a broad ground and we will obviate the need, both for more legislation and more executive brand action.
On the other hand, if we have a partial victory, then I think executive branch action in conjunction with legislative action is going to be very important because the executive branch has enormous power in terms of regulations to affect the extent to which existing laws have a discriminatory effect. And I think that the administration is now taking a very active role in looking at those, in trying to see where can they move this debate, where can they move this movement towards greater equality through executive branch action. So I think you’re going to see not only judicial cases, but you’re going to say legislative actions and you’re going to see executive branch action as well.
MS. HATALSKY: And for many of those, if we do not have a very, very broad decision and we have a more California specific decision and the Defense of Marriage Act is struck down, there are some legislative places where the benefits are in the statute. So the administration will not be able to fix that. One is the example we discussed before with Social Security. So those New Yorkers who might want to retire in Florida will not be able to do so and have their marriage recognized for the Social Security Act purposes unless the Respect for Marriage Act is passed to fix that.
SEN. GILLIBRAND: Correct.
MS. HATALSKY: Any other questions? All right. Well, I just want to say that whatever happens in the next two weeks, which we have a lot of questions about still, I think there were two important lessons that we learned from this discussion. One is that we – the court decisions are going to forever change the landscape for gay couples. There’re going to be landmark decisions, no matter how they come down. And the second is that we still have much more to do, both at the state and the federal level, if we’re going to make sure that all committed couples can make a lifetime commitment promise to the one that they love.
And I just want to – I think there’s no question that you two champions are going to be at the forefront of that fight, and I also want to thank you from a personal standpoint for fighting for recognition of my marriage, which is legal here in D.C., and fighting to make sure it has the full, same recognition as yours. So for the entire audience, we’re very grateful for you spending time with us here today, and we’d love to thank you for your insights.
SEN. GILLIBRAND: Thank you.
MR. BOIES: Thank you. (Applause.)
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