Candy Crowley | David Boies | News | Proposition 8 | Supreme Court

David Boies: SCOTUS Declared All State Gay Marriage Bans Unconstitutional — VIDEO


Proposition 8 attorney David Boies appeared on CNN's State of the Nation with Candy Crowley this morning to discuss the Supreme Court's rulings and the push for marriage equality nationwide.

Said Boies:

“First, remember that that the United States Supreme Court found that the plaintiffs in this particular case had standing to attack Proposition 8, but the people who were supporting Proposition 8 did not have standing to appeal our victory in the trial court,. So that reinstates the trial court's decision that says that all bans on gay and lesbian marriage violate the equal protection and due process clauses of the 14th Amendment.”

Crowley asked Boies if it's not now a states rights issue:

“If they were allowing the states to decide for themselves, they would have allowed California to decide for itself. California passed Proposition 8. So, what the Court was doing was it was invalidating California’s choice, and that’s exactly what the courts are supposed to do under the 14th Amendment. The 14th Amendment was passed for the specific reason of saying states have rights but one of those rights is not to discriminate against its own citizens.”

Boies goes on to say that this argument will be applied in fighting same-sex marriage bans in each state.


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  1. Interesting perspective from Mr. Boies. That would make the SCOTUS prop 8 ruling much more powerful than one would have thought. We'll be able to watch the Anti Marriage Equality States fall one by one if this interpretation holds. Nice.

    Posted by: norseman | Jun 30, 2013 2:40:02 PM

  2. He's right. The bans won't last over the long run. Exact same thing happened in Canada. Thank you Justice Kennedy!

    Posted by: Anthony | Jun 30, 2013 2:43:24 PM

  3. Let us hope Mr. Boies is correct. Some dominoes will fall faster than others-but we have hope and kudos to Justice Kennedy.

    Posted by: nick | Jun 30, 2013 2:45:41 PM

  4. Wow. Those quotes, if accurate, don't display a very good grasp of what the various courts held in these cases. I agree with Boise that state-level bans are unconstitutional, for reasons a little different from those suggested above. I can't imagine any court would adopt the understanding of the cases suggested in the above quote.

    Posted by: Mike | Jun 30, 2013 2:49:48 PM

  5. Love David Boies.

    His rationale on Prop 8 jives with Kennedy's strong language in DOMA.

    States don't define marriage. They only regulate it and that regulation must be subject to constitutional guarantees for all citizens.

    Posted by: JONES | Jun 30, 2013 2:52:38 PM

  6. This is a great insight into the judgment.....I would like to hear Ari expand on this.....I don't think he has posted on this interpretation yet.

    I need this to be explained to slow learners.

    Posted by: JackFknTwist | Jun 30, 2013 2:52:41 PM

  7. This news rocks. Without really caring much about gay people SCOTUS has supported us quite handily. I don't like it much either but who cares, they're just doing their job.

    Posted by: UFFDA | Jun 30, 2013 3:00:42 PM

  8. Prop 8 proponents never mention one simple fact and that is that same-sex marriage was legal in California before Prop 8 passed.

    Had this not been the case, and Prop 8 came about first, before gays could be married in CA, I think it would have been much harder to overturn. It still was a law that "discriminates against its own citizens" but it also took away a right that was previously (legally) granted.

    This may have been way we were able to get such powerful attorneys on our side, they saw two strong points against Prop 8 legally, and not just simply because it is the right, and fair thing to do.

    Posted by: Jeff | Jun 30, 2013 3:01:16 PM

  9. even if his interpretation is wrong, it is going to become very difficult for states to defend these bans when they come up for review in court as they were clearly based on fear and animus

    Posted by: lukefromcanada | Jun 30, 2013 3:03:11 PM

  10. We can only hope Boies is correct, this discrimination needs to end nationwide, the sooner the better. We know the bigots, religious or not, will fight us to the very end or further.

    Posted by: jsb | Jun 30, 2013 3:06:38 PM

  11. This also speaks volumes about the importance of clarity and scope in Judge Vaughn Walker's ruling.

    Can't thank him enough.

    Posted by: JONES | Jun 30, 2013 3:07:25 PM

  12. Not a lawyer.

    But I think he may be right in the legal sense but glossing over an important technical point.

    Yes, the Walker ruling is a federal ruling declaring in part that all marriage equality bans for same-sex couples are unconstitutional. And yes, that will certainly factor in other cases.

    However, at the same time, that ruling is not a precedent anywhere outside of the scope of the jurisdiction of Walker's court - which means that while it covers the whole US, judges elsewhere in the US are not required to agree. It's not binding.

    If a court in Oregon says something else, then if the two cases go on appeal to be resolved, at that point the ruling by the Circuit Court would be binding on the whole Circuit, and if two Circuits disagree, it goes to the Supreme Court.

    So right now there is a legal ruling that is in force that says this, and any other Judge in the US is free to agree and point to it as a reference, but they aren't (yet) bound to it.

    Someone who knows more technical legal rules, correct me if I am wrong.

    Posted by: Lymis | Jun 30, 2013 3:10:41 PM

  13. Jeff, you're right, but as some of the amici for the SCOTUS case pointed out, it's not so much that you can't take rights away once they are given, but that you have to have a valid reason to do so.

    And since those rights were in place, simply voting them out by a majority using the kind of animus-driven media push that they did isn't a valid governmental action. Whether or not there is any valid reason to limit marriage to fertile straight people in the first place, there is no valid reason to take it away just from gay people once it's been validly given to them. Nothing about marriage changed from the point that they had it to justify taking it away.

    Posted by: Lymis | Jun 30, 2013 3:14:23 PM

  14. My sense is that there are 4 justices who believe each state should be left to its own devices on this. If there were 5 then prop 8 would have been upheld because that would have clarified the matter beyond peradventure. Reading Scalia's dissent in Windsor makes that clear.

    So that means there are 5 votes to allow for same sex marriage which makes sense of Kennedy's actions as well as statements at oral hearings by Ginsburg and others.

    But both Kennedy and Ginsburg have, I feel, given us the road map. The 5 are not minded to present a 50 state ruling at this stage.

    So I think if the 9th circuit or other circuit courts make positive rulings I feel they will not grant cert; if cert is granted they will opt for a DIG because the lower court is applying Romer, Lawrence, Windsor, ?Loving in a more or less correct way.

    The majority may then intervene where conflicts arise between rulings, there are contrarian rulings or just that the country has simply moved on and accommodated to same sex marriage in an uncontroversial way.

    I heard the strategy is to try to get there within 5 years. That sounds achievable if this theory is correct. AFER's case is based on there being a strong constitutional basis for marriage equality. They didn't get that ruling here but Prop 8 doesn't exist anymore, after the case they brought.

    Posted by: Craig Nelson | Jun 30, 2013 3:32:58 PM

  15. Are we saying that the original decision of the Ninth Federal Circuit striking down Prop. 8 now stands as the law ?

    And does that ruling affect all bans on marriage for same sex couples unconstitutional on the basis of 'equal protection'.......?
    So no State may enact a law which is in violation of the original Ninth Circuit Decision based on the Constitution.
    I hope I grasp this correctly !!!

    Posted by: JackFknTwist | Jun 30, 2013 3:38:35 PM

  16. Boies is getting way out ahead of this issue re the courts. First, he misspoke, the 14th amendment denies states the right to discriminate against their residents unless there is a compelling state interest. However, according to SCOTUS precedent and within the bounds of the DOMA (not prop 8) decision, gay rights is not a truly protected class. The only equal protection granted LGBT residents is against "animus", that is, laws specifically targeting LGBT residents. You cannot apply the DOMA ruling to prop 8 or any similar state law.

    Second, the ruling of the ninth circuit was vacated on technical grounds, which means that they can rehear the case and still reverse the district court ruling on any grounds, not just on standing, so Boies is way wrong on applying standing as the only issue of cause here.

    Finally, there are other cases and precedents that are contrary to the district court's ruling, which means that there is no prevailing case and there is no reason the district court's ruling will carry anywhere else.

    Nice try, though.

    Posted by: anon | Jun 30, 2013 4:11:10 PM

  17. I hope Boies is right about the 5 years. Back in 2009 shortly after Iowa & Vermont legalized marriage equality, I told someone on a bigot site (perhaps "The Dakota Voice" or something similar, I can't remember)that we'd have nationwide equality in 10 years. I was just sort of creating a wild guess, but I'm hoping I was actually right.

    Posted by: Bruno | Jun 30, 2013 4:38:43 PM

  18. @ anon,

    Your third paragraph is a straw man argument. Kennedy (as well as marriage equality proponents) are not relying on Walker's district court opinion. It is the 9nth Circuit Court opinion that Kennedy relied on in his opinion.

    Your second paragraph is a joke. Are you seriously speculating that the 9nth Circuit Court will retry the case and reverse the district courts decision? There is not a snowball's chance in hell of that happening, and you know it.

    Regarding your first paragraph, it isn't necessary to use heightened scrutiny to arrive at the same conclusion that Kennedy arrived at. Kennedy described his method of scrutiny as "careful consideration," which is known in legal circles as "rational basis plus." There is actually a profound difference between "rational basis" and "rational basis plus." Under "rational basis," the burden of proof is on the plaintiff. "Rational basis plus" switches the burden of proof onto the state, and it's difficult to overstate the strategic importance of that switch. "Rational basis plus" worked in Kennedy's opinion in Romer v. Evans, it worked in Kennedy's opinion in the DOMA case, U.S. v. Windsor, and it could certainly work in any number of future cases involving states without marriage equality.

    As far as your attempt to spread doom and gloom, I will quote your last sentence. "Nice try."

    Posted by: Artie_in_Lauderdale | Jun 30, 2013 4:47:02 PM

  19. I think Mr. Boies is getting carried away by his own rhetoric. Their case delivered marriage equality in California via a procedural technicality. That is far short of what they promised when they filed this lawsuit 4 years ago but tremendously important nonetheless.

    Posted by: Lester | Jun 30, 2013 4:52:36 PM

  20. I've wondered about this over and over and couldn't figure out why it wasn't spoken more about. Vaughn Walkers ruling was very clear. It was the 9th Circuit that changed the ruling to a more narrow one and sent it off to the Supreme Court. With the 9th Circuit invalidated and Walkers upheld, by the courts ruling, we now have an upheld ruling by a federal Judge that marriage equality is a right.

    They can't have missed this.

    Posted by: Michaelandfred | Jun 30, 2013 5:14:06 PM

  21. @anon

    Actually, I don't think Boies is getting ahead of himself.

    The 14th amendment Section 1:

    "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    The 14th amendment itself says nothing about compelling state interest. It's saying that no state may abridge the privileges of US citizens, and it is careful to describe in the beginning what makes a person a US citizen. These privileges specifically refer to the laws that are in place, and how (and to whom) they can be applied. It doesn't matter that gays aren't "a truly protected class". Being a US citizen is enough to have current marriage laws apply to gay people. That's the reason people were frantically trying to get a marriage amendment passed to clarify "man and woman".

    Compelling governmental interest has to be proven as something crucial (i.e. saving lives), not merely preferred, if a governing body wants to infringe on rights.

    In what situation would the DOMA ruling be applied to the Prop 8 ruling? It seems like the other way around...that the Prop 8 ruling was brought about because of the DOMA ruling.

    Yes, the Ninth Circuit's ruling was vacated and remanded and they can rehear the case. It seems unlikely to be reheard because of the context of the technical grounds you mentioned. The ruling was vacated because the pro-Prop 8 group was technically not legally able to defend it in court, even though the court said they could. Those proponents only jumped in when the state of California refused to defend it's law. So, yes, the court can rehear it, but who's going bring it to court to defend??

    The DOMA ruling itself is strong enough to use when proving discrimination and the rationale behind it in each of these State bans. 'Nuff said.

    Posted by: jjasonham | Jun 30, 2013 5:19:50 PM

  22. What Artie said :)

    Posted by: jjasonham | Jun 30, 2013 5:21:13 PM

  23. I'll tell you what will knock down every gay marriage constitutional ban in the U.S.:

    A couple married in a state that permits same sex marriage will travel to or relocate to a state with a constitutional ban.

    Some emergency will happen - and the spouse will be denied as legal stranger. That will prompt another judicial challenge and the issue will escalate to the U.S. Supreme Court once again.

    This may take a couple of years but recall, several of the more conservative judges aren't getting any younger. And there's a good chance the next President will be a Democrat and that either President Obama or his successor will get to appoint more liberal justices.

    Posted by: Truthspew | Jun 30, 2013 5:27:24 PM

  24. "Boies is getting way out ahead of this issue re the courts."

    @anon(the name is telling): Not as far as you're getting behind on this issue re the courts and the reality of how these decisions will play out. The equality patchwork is unsustainable in practical and constitutional terms. Are you the same "anon" who the day of the rulings kept insisting on every Prop 8 thread that marriage returning to CA wasn't at all a sure thing? Nice try, back at ya!

    Posted by: Ernie | Jun 30, 2013 5:45:24 PM

  25. The old defenders like Kennedy and Boies are in it for REVENGE. They were word twisters as children. Houdini had nothing on them.

    Posted by: GB | Jun 30, 2013 7:04:58 PM

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