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. Until someone makes equal marriage a US law, the south will not let LGBT people marry. They are as backwards and hate filled as they were in the civil war and will go against this until they are forced like in the civil war. To help us who are in the minority here someone needs to force all the states to change so we can get on to more productive things other than making sure these sadistic religious fanatics get their way.

    Posted by: DownSouth | Jul 1, 2013 3:05:22 AM

  2. It's only a matter of time.

    While I love the sentiment expressed by Boies, it's not the reality of the situation. Every state will have to have a marriage equality (or marriage discrimination) case move all the way up to the supreme court for a decision. And that's going to take a few years to happen.

    When enough of them get done, the fed will finally decide (most likely a congressional decision) that enough is enough and they'll move to make marriage equality the law of the entire U.S.

    Posted by: johnny | Jul 1, 2013 8:57:02 AM

  3. If Bois is rigt, and the ruling can be used to challenge the Marriage Bans in every state, then I think Ken Mehlman should be required by the entire gay community to fly to each trial on his own dime and testify how he helped the Republicans put all of those marriage ban laws on the ballot in order to stir up anti-gay animosity to get voters out.

    If Ken Mahlman is TRULY sorry for what he did, surely, he would be up to that. It would be a useful testimony in establishing anti-gay bias in the passing of those laws and help to invalidate them the same way the anti-gay bias helped defeat DOMA at SCOTUS.

    Posted by: Kieran | Jul 1, 2013 9:39:01 AM

  4. @johnny
    Every state doesn't have to have a case go to SCOTUS. Circuit courts (Court of Appeals) service many states and there are 11 circuit courts in the US. A ruling in CofA can cover the states within that region. The Ninth that heard Prop 8 covers 8 States.

    Posted by: JONES | Jul 1, 2013 10:51:15 AM

  5. I think someone already mentioned this, but the Ninth Circuit's decision does not stand - it should have never heard the case because of the standing issue. Practically, this means the district court (J. Walker)'s decision stands. That was a very broad decision striking down Prop 8 on equal protection under the 14th Amendment. This is what Boies is discussing.

    That said, this decision really only matters under the district court's jurisdiction. Good luck making any other state outside that jurisdiction abide by that ruling. This is why it will inevitably make its way back to SCOTUS. There's no way around it. He's technically right, but it's mostly unenforceable anywhere else without a higher court requiring jurisdictions to follow the precedent.

    That said, judges in other jurisdictions who are more progressive can use the language there to perhaps do the same in other jurisdictions. Persuasive authority is important, it just isn't going to matter that much until this works its way back to SCOTUS.

    Posted by: Abogado | Jul 1, 2013 1:54:19 PM

  6. And also, why everyone is discussing Kennedy here is perplexing. He didn't write the decision to kick the Perry case on standing. Roberts did. And Kennedy decided DOMA under the 5th Amendment, not the 14th.

    Posted by: Abogado | Jul 1, 2013 1:55:03 PM

  7. Kennedy's opinion in DOMA will be sufficient for state bans on marriage equality to be challenged.

    Posted by: JONES | Jul 1, 2013 11:31:52 PM

  8. Kennedys ruling on Prop 8 was a complete 180 from his vote on DOMA. According to his opinion, the prop 8 case should have went back to the oriinal Court where the correct ruling would be a "no trial" with Prop 8 standing. Kennedy said that the States should make the laws on same sex marriage, not the Federal Government. When the two sets of plaintifs came before the appeals court, the Ca. Attorney General refused to defend the voters decision, that's where the other defendents were thrown into the appeals court. Since a plantiff can't bring a case before an appeals court, without an adversary, and since Kennedy decided that the defendents didn't have standing in the appeals case, the ruling should have been remanded once again, with the same plantiffs if they wish, but if the Attorney General continues to refuse to defend the voters position in the case, there can be no trial without adversarial parties and therefore the vote would stand. Until a time when both sides could and would perform according to the obligations set forth for both plantiffs and Defendents, THEN when those matters were settled to the courts confirmation, an appeal to the vote on Pop 8 could then take place. Since that hasn't happened it should revert to the original, with Prop 8 being approved by the voters of Ca., until persons of both standing and defending could present before another appeals court.

    Posted by: James Taylor | Jul 2, 2013 3:58:44 AM

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