Meet the Press   |  March 24, 2013

David Boies likens gay marriage to civil rights

The lawyer leading the charge for repeal in front of the Supreme Court adds his viewpoints to the same-sex marriage debate.

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This content comes from Closed Captioning that was broadcast along with this program.

>> i want to turn to that question for the court . we're talking about the politics behind the same sex marriage fight, the legal aspect, of course, comes to a head this week it at the supreme court starting tuesday, nine justices will hear oral arguments on the two potential landmark cases that they will be looking at. the first time same-sex marriage laws have been reviewed by the court but it won't be the first time one of the lawyers arguing for same sex marriage, david boies , finds himself in the middle of yet another one of the country's most anticipated court cases . he, of course, vice president gore's attorney during bush v. gore which effectively closed the book on the 2000 presidential election by ending the florida recount and mr. boies is with me here. good to have you.

>> good to be here. this time i have ted olson who is representing me.

>> that's right. you are a team here which is striking. pick up on this conversation. what is it that you need the court to decide in lay language?

>> sure. at the very beginning of this case, he said we needed to prove three things. first marriage is a fund aamental right. we needed to do that and the defendants even agreed with that. the supreme court has ruled that 14 times in the last 100 years. second, we needed to prove that depriving gay and lesbian citizens of the right to marry seriously harmed them and seriously harmed the children that they were raising. and we proved that, too, not only through our witnesses but through the defense witnesses.

>> can i interrupt on that point? i think it's significant. in effect, are you vaing you want gays and lesbians to be treated as a protected class like african-americans? in other words, the burden is so high to diskrip nate against them?

>> that's exactly what the administration brief says. but we believe that even if you simply apply to ration basis test, there is no rational basis to justify this ban. and that's because of the third thing that we proved which is there was no evidence, none, that allowing gays and lesbians to marry harms the institution of marriage or harms anyone else.

>> that goes to ralph reed 's poi point.

>> it does. i think one of the things that's important is that the evidence is that having a loving couple going to marry is great for children. everybody agreed with that. but the evidence if that's true, whether it's a gay couple or a straight couple. and it's true whether it's an adoptive couple or a biological couple.

>> isn't it possible --

>> that's the evidence. the evidence is absolute ly clear that if you have a loving adopted couple, it is no worse off at all than a biological couple.

>> look at the math, though. i want to come to the practicality and the politics of the court as well. we look at roe v. wade . these are the states highlighted in blue where same-sex marriage is banned. aren't you effectively asking the court -- i realize there's the difference between the california case and the defense of marriage act case -- asking the court to say with one stroke of the pen we're going to invalidate what those states have done and create a constitutional right to marry for gays and lesbians ?

>> every time the supreme court makes a constitutional decision, it's making a decision -- a certain fundamental rights are too important to be left to the ballot box . we've done that with race. we've done that with women. we've done that with every discriminated class. and, remember, when the united states supreme court outlawed the bans on interracial marriage in 1967 , 64% of the american people opposed interracial marriage and yet when that decision came down, there wasn't a ripple.

>> was roe v. wade decided too quickly?

>> it was an entirely different decision. we're not asking for a new constitutional right. the constitutional right to marry is well established. in fact, the supreme court has ruled that you can't take away the right to marry even from impreside imprisoned felons who can't have any procreation because they can't get together, but you can't take it away from those people because it's so important and such a fundamental right of liberty and that right is already established. the only question is are you going to deprive gays and lesbians of this right because of their sex or the sexual orientation.

>> handicap this. the "time" magazine about justice kennedy that he is the decider, how do you think this goes?

>> i'm not going to get in the business --

>> you've talked about this already. you've been doing the handicapping. you don't think it will be close.

>> what i said -- i think we're going to win but i don't think we're going to win 5-4. i think this is a basic civil rights issue. i don't think this is a kind of issue that will divide the court the way some other issues divide the court .

>> do you think it's possible the court makes a decision that doesn't resolve the right question? in other words, it doesn't resolve whether there's a right to marry?

>> they could. there's a technical issue called standing that's raised here and the court could decide that the defendants don't have standing. that would result in allowing marriage equality in california because it would affirm the district court but it would not have any general