(Photo: Karen Bleier, AFP/Getty Images)
By Greg Toppo, @gtoppo, USA TODAY
A well-known attorney due to ask the U.S. Supreme Court this month
to strike down a California law banning same-sex marriage says the high
court may very well present a united front in favor of gay and lesbian
rights.
In a wide-ranging interview this week with the USA TODAY
Editorial Board, attorney David Boies said he believes that the court's
ruling, expected in June, "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."
Chief Justice John Roberts' surprise decision
last year to uphold President Obama's health care overhaul, he said,
shows "the court's willingness to take a careful look at issues and not
just conform to some people's view of where they're going to come out."
Boies,
who represented Al Gore in the 2000 presidential election recount, is
scheduled to argue the case - one of two same-sex marriage cases before
the court - on March 26 and March 27, alongside Theodore Olson, a former
solicitor general under President George W. Bush. The pair brought the
lawsuit against California's Proposition 8, a November 2008
constitutional amendment that defines marriage as only "between a man
and a woman."
In the interview, Boies drew parallels between the
struggle for same-sex marriage and the fight for interracial marriage in
the 1960s. Opposition to both, he said, comes from the "same reservoir
of ignorance" about those involved.
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."
He plans to argue that marriage is
a right so fundamental that depriving gay and lesbian couples of it
seriously harms both them and the children they're raising. What's more,
he said, allowing gay and lesbian couples to marry has virtually no
effect on heterosexual marriage attitudes or plans.
The court will
likely hear from critics who say allowing same-sex marriage nationwide
would create a backlash and pose a threat to traditional marriage,
stifling debate on the topic at a state level and threatening the
religious liberty of those who oppose it.
"I think it would make
the collapse of our marriage culture irreversible," said Washington,
D.C., attorney Ed Whelan, a former law clerk to Justice Antonin Scalia.
Whelan has filed a friend-of-the-court brief in the case and noted that
the Netherlands saw "a marked decline" in traditional marriage after
approval of a 2001 same-sex marriage law. While marriage may bestow some
benefits to same-sex couples, he said, for others it creates a "mission
confusion" that could undermine marriage and be "very destructive to
this country."
Boies said fears of a backlash are overblown. Unlike other divisive Supreme Court decisions such as Roe v. Wade or Brown v. Board of Education, same-sex marriage has been a topic of widespread debate over the past several years.
"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."