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David Boies interviewed about Prop 8 case by USA Today editorial board

Marriage equality Marriage Equality Trials Prop 8 Prop 8 trial

By Scottie Thomaston

Attribution: LGBTQ Nation
David Boies with Ted Olson

This week, attorney David Boies, part of the team of lawyers attacking the constitutionality of Prop 8 in federal court, was interviewed by the USA Today editorial board. The Supreme Court hears arguments in the Perry case in less than two weeks and Boies seemed confident about the outcome.

Asked about the reliance on Justice Kennedy and the predictions by Court-watchers that we would see a 5-4 decision (with Justice Kennedy as the fifth vote) striking down Prop 8, Boies said he believes there will be more than five votes for marriage equality:

[The decision] “will not be a 5-4 decision. I don’t know whether it’s going to be 6-3, it’s going to be 7-2,” he said. “I don’t know where it’s going to come out, but I don’t think this is going to be a 5-4 decision.”

Four new Justices have been appointed to the Court since it last decided a LGBT rights issue in Lawrence v. Texas in 2003. And Chief Justice Roberts, as USA Today points out, has surprised people before by voting to uphold the Patient Protection and Affordable Care Act, President Obama’s health care law. Roberts also did pro bono work for the legal team fighting Amendment 2 in Colorado in Romer v. Evans, but he has suggested he never turned down the opportunity to do that type of work helping colleagues when he was given the opportunity.

And since there’s virtually no record on the other more recent Justices in terms of LGBT rights, there is reason to believe Boies’ prediction could be proven correct.

Boies also talked about the fact that younger people are overwhelmingly supportive of marriage equality. He told USA Today about his fear that the anti-gay environment in which the Justices grew up might affect their attitudes:

But the USA has undergone a “tremendous” demographic shift in attitudes, especially among young people, he said. “Unlike people of my generation, my children and my grandchildren have grown up living with, knowing people who were outwardly gay and lesbian. And they have learned that they’re just like us. … And when you see that they’re just like us, the rationale for discrimination melts away.”

Boies, 72, said his biggest fear is that most of the nine sitting justices “are my age or older” and have grown up in an environment of “extreme hostility to homosexuals.” He added, “Judges are supposed to put that aside and our very best judges do, but it’s not an easy task.”

Boies was also asked about the comparisons between this issue and Roe v. Wade, the Supreme Court decision striking down bans on abortion. That decision was harshly criticized by people on all sides; even (now-Justice) Ruth Bader Ginsburg has said the Court moved too fast. And some people who want the Court to uphold Prop 8 have tried to say people would criticize the Court in the same way. Boies said that’s not an apt comparison to the Prop 8 case:

“While people can hold moral and religious views strongly,” he said, “once the Supreme Court rules on a legal right, if that legal right is not infringing on somebody else (and) not hurting somebody else, the American people accept it.”

The Court hears this case along with a challenge to Section 3 of the federal Defense of Marriage Act at the end of March.

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