Our legal heroes, Ted Olsen and David Boies spent the morning talking to some right wingers, and did an excellent job countering their arguments, especially Olsen, who managed to disarm all the Fox News talking points single-handedly.


Transcript and the Boies video after the jump.

Wallace: Let's take a look at what you said in 2007.

Wallace: “Judges have taken some of those decisions off the policy table, taking them away from the people by constitutionalizing these issues.”

Wallace: Question, isn't that exactly what Judge Walker did in this case?

Olsen: No. As a matter of fact, since 1888 the United States Supreme Court has 14 times decided and articulated that the right to marriage is a fundamental right. We're not talking about a new right here, we're talking about whether a fundamental right, something that the Supreme Court has characterized as the most fundamental relationship we have in this country, can be deprived  of certain individuals because of the color of their skin, or because of their sexual orientation.

Wallace: But, but Mr. Olsen, you have also said this, judges should, quote:

Wallace: “Interpret the law, not make it up; not create new rights that weren't there in the Constitution.”

Wallace: Where is the right to, you talk about the right to marriage, where is the right to same-sex marriage in the Constitution?

Olsen: Where is the right to interracial marriage in the Constitution, Chris? The Supreme Court has said that marriage, the right to marry a person of your choice is a part of liberty, privacy, association, and spirituality guaranteed to each individual under the Constitution. When you say same-sex marriage, you're saying a particular type of marriage, which the Supreme Court has looked at marriage and has said that the right to marriage is a fundamental right for all citizens, so you call it interracial marraige and then you can prohibit it? No, the Supreme Court said no. The same thing here. The judge, after hearing three weeks of testimony and a full day of closing arguments and listening to experts from all over the world, concluded that the denial of the right to marry to these individuals in California hurt them and did not advance the cause of opposite-sex marriage. This is what judges are expected to do. It is not judicial activism, it is judicial responsibility in its classic sense.

Wallace: So, society doesn't get to say that marraige should be between a man and a woman, even though society has said that for thousands of years. Seven million people in California don't get to say that marriage is between a man and a woman even though just in November of 2008, 7 million Californians voted that they wanted to change their own state constitution to say just that?

Olsen: In the 1960s, an equivelent number, a smaller number, of Califonrians voted to change their constitution to say that you could discriminate in the basis of race in the sale of your home. United States Supreme Court struck that down. If 7 million Californians were to decide that we were to have separate but equal schools, or that we would send some of our citizens to separate drinking fountains, or have them be in the back of the bus, that would be unconstitutional. If, if we didn't have a separation of powers, if we didn't have a Bill of Rights, then 7 million Californians could take away your rights, or my rights, or the rights of these citizens in California. But we do have a Bill of Rights, and it is intended to protect us. The 14th Amendment was the result that guarant– the 14th Amendment that guarantees due process and equal protection to all citizens, to all persons, was the result of a civil war intended to enforce the promise of our constitution that all men and women are created equal. The judge is simply fulfilling that promise, that American promise, you have an opportunity–

Wallace: Mr. Olsen, you are against judicial activism, how do you define what is judicial activism and what isn't?

Olsen: Well, most people use the term “judicial activism” to explain decisions that they don't like.

Wallace: Exactly.

Olsen: What the court has done here…

Olsen: I'm sorry if I interrupted you.

Wallace: No, no, I just said, “Exactly,” that's how most people do define it.

Olsen: Yes. Yes, and what the court decided here, what the Supreme Court, as I said, of the United States has 14 times decided the right to marry is an important constitutional right. The judge applied that right, that existing right, that fully determined and repeatedly determined constitutional right, to some tens of thousands of those in California who are being harmed by descrimination. That is not judicial activism, that is judicial responsibility.

Wallace: Now, instead of letting this be decided on a state by state basis, you are, in effect, pushing the courts to preempt the argument, which is exactly what they did in Roe v. Wade.

Olsen: Well, would you like your right to free speech, would you like Fox's right to free press put up for a vote, and say, well, 5 states have approved it, let's wait for the other 45 states do? These are fundamental constiutional rights, the Bill of Rights guarantees Fox News, and you, Chris Wallace, the right to speak, it is in the Constituion, and the Supreme Court has repeatedly held that the denial of our citizens, of the equal rights to equal access to justice under the law is a violation of our fundamental rights. Yes, it's encouraging that many of our states are moving towards equality under the basis of sexual, er, orientation, and I am very, very pleased about that, because it is extrordinarily damaging to our citizens, our family members, our brothers, our sisters, our co-workers, and our neighbors when they are labeled second-class citizens, when the State of California, as it did in this case, enshrined in its constitution a separate status for certain of its citizens. It did immeasurable harm. We can't wait for the voters to decide that immeasurable harm that is unconstitutional must finally be eliminated. I applaud the fact that things are changing, and I think this case is helping open people's eyes to the damage done by descrimination on the basis of sexual orientation. All we have to do is look into the eyes of these individuals and decide, “Why are we denying them the right to happiness that we accord to all of our other citizens?”

Wallace: Mr. Olsen, we want to thank you so much for joining us today. We'll keep following your lawsuit, and I've got to say, after your appearance today, I don't understand how you ever lost a case in the Supreme Court, sir.

Olsen: You're very kind, Chris, thank you for having me on your program.



Meanwhile, David Boies went to CBS and debated Tony Perkins, who spouts his normal gibberish about junk science and the normal anti-gay lies, with Boies slapping him down unequivocally as a result. 


Dickerson: Joining us now to discuss the California ruling on same-sex marriage from San Francisco, David Boies, one of the lead attorneys for the plaintiffs; and Tony Perkins, the head of the Family Research Council. He is in Wichita Falls, Texas. Mr. Boies, I want to start with you. After the judge ruled in your favor, he put a stay on marriages going forward. I want to know with– with so much legal fighting ahead on this issue, why should marriages be reinstated immediately?

Boies: I think the issue is not whether they ought to be reinstated immediately but whether you ought to have marriage equality. I think that courts can differ in terms of whether this goes into effect immediately or after an appeal. I think the critical issue here is that what you have is a district court finding after a full trial. Everybody had an opportunity to be heard. A opinion that demonstrates that there are simply no basis whatsoever to continue discrimination against gay and lesbian citizens who want to marry.

Dickerson: Tony Perkins, you said this ruling, this decision left you speechless. What's your reaction going to be now?

Perkins: Well, the– this is not without political parallel. I mean you go back to the 1970s and abortion was nowhere near the political issue that it is today when the court interjected itself in 1973 to this issue. And– and this issue is not going to go away. I think what you have is one judge who thinks he knows, and a district level judge, and, and an openly homosexual judge at that, who says he knows better than not only 7 million voters in the state of California but voters in thirty states across the nation that have passed marriage amendments. This is far from over.

Dickerson: You mentioned this claim that he's openly homosexual. I'm not sure if that's in fact the case but whether he is or isn't, what basis– what bearing does that have on the case?

Perkins: Well, that according to the San Francisco Chronicle that– that he is openly homosexual, one of two federal judges. And I think, you know, had– had this guy been a, say,an evangelical preacher in his past, there would have been cries for him to step down from this case. So, I do think it has a bearing on the case.

Dickerson: But you think it's made his–

Perkins: But this is not without precedent.

Dickerson: You think it's made his ruling–

Perkins: This is not without precedent. Well, I mean, you look at– he ignored a lot of the social science in–in his opinion. But in Nebraska in 2005, there was a similar ruling by another federal district level judge. It was overturned in the 8th Circuit unanimously. So there is certainly not only based upon the social empirical data that's out there, but on the legal basis this is a flawed decision. And, and, as I said, it's far from over.

Dickerson: David Boies, the one thing you mentioned that the judge spent a great deal of time on the facts of the case here, what's your response to Mr. Perkins?

Boies: Right. Well, it's easy to sit around and debate and throw around opinions appear– appeal to people's fear and prejudice, cite studies that either don't exist or don't say what you say they do. In a court of law you've got to come in and you've got to support those opinions. You've got to stand up under oath and cross-examination. And what we saw at trial is that it's very easy for the people who want to deprive gay and lesbian citizens the right to vote, to make all sorts of statements and campaign literature or in debates where they can't be crossexamined. But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away. And that's what happened here. There simply wasn't any evidence. There weren't any of those studies. There weren't any empirical studies. That's just made up. That's junk science. And it's easy to say that on television. But witness stand is a lonely place to lie. And when you come into court, you can't do that. And that's what we proved. We put fear and prejudice on trial, and fear and prejudice lost.

Dickerson: Mr. Perkins, I want to ask–

Boies: –that is absolutely, that is absolutely not true.

Dickerson: Well, let me just ask you, just the, the judge in this case said that the the state has to find a harm some kind of harm created by same-sex marriage. There has to be empirical evidence. Mr. Boies says and the judge says there was no evidence on that case. So what harm, give us some evidence in terms of the harm that would be created by
allowing same-sex marriages.

Perkins: Well, a lot of the discussion was about the– the issue of children, how children are impacted by this. This is so relatively new that there is not a conclusive evidence to suggest that children who grow up with two moms or two dads fare as well as children who grow up with a mom and a dad. Now, we do have an abundance of evidence over the last forty years from the social sciences that show us that public policy that has devalued marriage through law such as no-fault divorce has truly impacted children and that impacted the institution of marriage. And the judge, in his ruling, actually over… just ignored all of that and said that there is no evidence that any of the policy that's been adopted on no-fault divorce and other liberal-leaning policies have impacted marriage. And I think anybody with– with a half-a-brain can see that the policies that have been adopted in the last forty years have impacted marriage. And a– and as a result have impacted the well being of children.

Dickerson: Mr. Boies, let me ask you a question about the– where this case goes from here. There is the view among a lot of legal scholars–

Boies: : Let me, let me, let me just respond.

Dickerson: Quickly, if you could.

Boies: Let me just respond to that, okay? Okay, very quickly. Look at. The judge did deal with it. And he pointed out, which is obvious, is that no-fault divorce doesn't have anything to do with issue that's here. The empirical studies that do exist and they’re based on what's happened in Canada and Sweden and Spain and other countries and other states where you are able to have marriage equality demonstrates that there is no harm. There are– there are studies going back for twenty years that’s– that demonstrate this. The problem here is that unlike a court, people don't stick to the facts.

Dickerson: Okay, let me ask you on the question of the Supreme Court where this may end up, one day. There is a view that the court doesn't like to get too far out in front of where the law is now. Isn't this a big leap for the Supreme Court to– to side with you, Mr. Boies, in this case?

Boies: It– it really isn't. Remember, unlike abortion, the court is not creating a new legal right. This is a right that has been well recognized for a hundred years in terms of the right of individuals to marry. And all that's at issue here is can the State of California take away that right depending on the sex of your intended partner? And that issue depends exactly on what you said before. Is there a rational basis for that distinction? Can you prove that it harms heterosexual marriage, children, can you prove it harms anybody? Why do you make these people suffer if it doesn't help anybody? And what we proved at trial is that there simply isn't any basis, no evidence at all, to indicate that this has any harm to anybody. And, indeed, all the evidence is to the contrary. That it makes those relationships more stable. Even the defendant's own witnesses admitted that there was no evidence of harm to heterosexual marriage or to children as a result of gay and lesbian marriage. Even the defendant's own experts admitted that there was great harm to homosexual couples and the children they're raising by depriving them of the stability and love of marriage.

Dickerson: Mr. Perkins, I want to ask you about the, the Republican Party. Usua–  often, in cases like this, you hear Republican politicians jump to decry these kinds of rulings. It's been pretty muted so far. Why do you think that is?

Perkins: Well, there will be a ruling– there’ll be a resolution introduced in Congress this coming week, when the House is pulled back in by Nancy Pelosi. But– but I want to address, you know, David knows better than this. I mean he’s a constitutional lawyer. He knows that the findings of the court over the last hundred years have dealt with traditional marriage, marriage between a man and a woman. And, and then a whole issue of civil rights that is drawn into this, you know, the court in– in Brown v. Board of Education and the civil rights cases in the fifties and sixties were based upon constitutional amendments on the issue of racial equality which were adopted by the states. That hasn't happened on same-sex marriage. This is an activist decision by a district-level court who is interjecting his view over the view of not only millions of Americans who have voted on this issue, but, literally, the history of the human race. So, this is far from over and– and we hope that sanity will reign when it does make its way to the United States Supreme Court.

Dickerson: Okay. Tony Perkins, thank you so much. David Boies, thank you for being with us.
Perkins: Thank you.

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