Photo by Beth Byrne
that no state can establish a religion. No state can favor one religion or one religious belief over others. No state can say because a number of our citizens believe for religious grounds that marriage should be between a man and a woman, that’s what we are going to legislate. Religion does not have a place in American legislation. There simply is not a legitimate argument in favor of continuing this discrimination. The other side doesn’t have any precedent, doesn’t have any facts, doesn’t really have any experts; they’ve got a bumper sticker, and that bumper sticker says, Marriage is between a man and a woman. That’s not the answer, that’s the question, and when you look at the judge’s opinion yesterday, you will see a resounding, clear, well-supported answer to that question, which says this country has moved away from inequality. It used to be African-Americans couldn’t even marry each other under slavery; then it was African-Americans and whites can’t marry; now it’s gays and lesbians can’t marry. All of “The doesn’t have any those restrictions ; are vestiges of infacts, doesn’t really have equality and discrimination of the .” they’ve got a past, and yesterday we took a really big of the cases that I do are cases in which there step in moving past that as a country. are good arguments on both sides. But there One of the things that I asked their are some cases in which there simply is not expert witness, who was a chief expert witanother side, and this is one of those cases. ness by the name of David Blankenhorn, This isn’t balancing safety and order against was whether he believed in the American individual liberty. This isn’t balancing one culture of equality, and he said he did. I set of facts against another set of facts. This said, Isn’t it inconsistent with that to say isn’t balancing benefits to one group against that gays and lesbians can’t get married? harm to another. This is a situation in which Interestingly, he agreed with that. I asked people are being seriously harmed, daily, by him whether it wasn’t true that America this discrimination, and no one is benefit- would, by the criteria that we judge, be more ting except people who want to keep some American the day we permitted gay and people separated out, discriminated against, lesbian marriage than it was the day before. classified as not equal. Much to the surprise of some of the people The First Amendment has two parts. It on both sides, he agreed it would. That’s behas a free exercise part that says Congress cause when you’re up on the witness stand, can make no law – that includes no state eventually there’s no place to hide, and can make any law – that prohibits the free when you can’t hide, discrimination falls. exercise of religion. But the second part says Discrimination, bias, prejudice can survive
other side
any experts bumper sticker
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THE COMMO N WE AL TH
decem be r 2010/Jan ua ry 2011
in the darkness, it can survive unchallenged, but can’t survive the marketplace of ideas, and it can’t survive when it has to face that kind of cross-examination. Question & answer session with Pam Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
KARLAN: Why didn’t the other side put on a better case? BOIES: This was not a case where they had bad lawyers. They had good lawyers. The problem is there wasn’t a case to present; it wasn’t that they didn’t try. They had six or eight expert witnesses that they recruited. We then took their depositions and it turned out that they couldn’t sustain under crossexamination the propositions that they had been hired to advance. In fact, two of their witnesses gave us testimony that we liked well enough that we played their videotapes in our case, and the judge quotes them in his opinion. You can have the best lawyers in the world, but if you don’t have any evidence, you really can’t survive in the courtroom. KARLAN: The defendants in the case, the people who defended Proposition 8, were the ballot proponents. The state itself really did a lay-down. The attorney general said he thought the amendment was outright unconstitutional, and the state refused to mount any defense; indeed, in their answers to requests for admission that you all filed, they agreed with you on every central point. What bearing does that have on the case? BOIES: There is an interesting legal question. There is real doubt as to whether nonofficial defendants – that is, people who are not the state – have the right to appeal. They have a right to intervene at the trial court level and have their views considered, but there is jurisprudence, including from the United States Supreme Court, indicating that they don’t have the standing under Article III of the Constitution to actually pursue an appeal. It is one that I think the court is going to grapple with, because it is a serious argument that they don’t have standing to appeal. It will be interesting to see how that all comes out. Ω This program was made possible by the generous support of the Charles Geschke Family.