Two Legal Foes Unite to Fight -- for Same Sex Marriage

Watching this week's "health summit" in Washington, with both sides barely repressing the urge to turn the Blair House event into the Potomac version of mixed martial arts cage fighting, was discouraging. To get a little peace and quiet I was tempted to switch to ESPN and search for an hour of the world's greatest soccer riots. At least they make better theater. And there are better-defined goals.

But just when you think that liberals and conservatives will never see eye to eye on anything in this country, there comes an alliance that transcends partisan and ideological lines and takes your breath away. The two powerhouse lawyers who fought each other all the way to the Supreme Court to decide whether Al Gore or George W. Bush would become President are at it again, but this time they're fighting on the same side to defend marriage equality -- same sex marriage -- as a constitutional right.

Former Bush solicitor general Ted Olson and liberal attorney David Boies are in the middle of a case that, win or lose, they expect will wind up at the Supreme Court, just like Bush v. Gore. The former adversaries are united in support of core American values -- diversity, equality and tolerance. They've become key players in one of the most important civil rights trials of the last decade, a pivotal legal action that could change contemporary society, but which has escaped the attention of much of the country.

In May 2008, California joined Massachusetts to become the second state in the union to sanction gay marriage. But opponents launched a movement and succeeded in getting on the ballot a voter initiative to overturn that decision -- Proposition 8. While the rest of the nation focused on the presidential race between Barack Obama and John McCain, millions of dollars poured into California for or against Proposition 8. In fact, after Obama/McCain, it was the year's second most expensive political campaign.

On Election Day, Proposition 8 passed by a 52-48 margin. Voters rejected same sex marriage and ordered the state constitution amended to define marriage as the union between one man and one woman. In 2009, the California Supreme Court upheld the amendment's constitutionality. But David Boies and Ted Olson filed a legal challenge in Federal court on behalf of two same sex couples -- two men, two women -- each of whom had been denied the right to marry.

The trial began in January at the Federal district courthouse in San Francisco. No video of the proceedings was released to the public, but you actually can see reenactments created by two ingenious Los Angeles filmmakers who used transcripts, other reporting and a cast of professional actors to recreate each day's statements and testimony. Go to their website at www.marriagetrial.com.

My colleague Bill Moyers spoke with David Boies and Ted Olson on the current edition of public television's Bill Moyers Journal. He asked them why they had united in the Proposition 8 case. Boies said, "One of the things we have in common on this issue is respect for the rule of law, respect for civil rights, respect for the Constitution... It's not a Republican or Democratic issue. Conservatives and liberals alike want to keep the government out of our personal conduct -- want to keep the government out of the bedroom."

"We're not advocating any recognition of a new right," Ted Olson said. "The right to marry is in the Constitution. The Supreme Court has recognized that over and over again. We're talking about whether two individuals should be treated equally under the equal rights protection clause of the Constitution -- the same thing the Supreme Court did in 1967, [when it] recognized the constitutional rights of people of different races to marry."

Boies added, "There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for... If you didn't tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn't need a Constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, 'This is a democracy. But it's also a democracy in which we protect minority rights...' What the Constitution says is that every citizen gets equal protection of the law. It doesn't just say heterosexuals."

Asked by Moyers about criticism that a loss could set the marriage equality cause back for years, Ted Olson replied that a legal challenge of Proposition 8 was unavoidable: "We felt that if a challenge was to be brought, it should be brought with a well-financed capable effort by people who knew what they were doing in the courts. Secondly, when people said, 'Maybe you should be waiting, maybe you should wait until there's more popular support,' our answer to that was, 'Well, when is that going to happen? How long do you want to wait? How long do you want people to be deprived of their constitutional rights in California?'

"... People told Martin Luther King, 'You may lose.' He said the battles for civil rights are won ultimately by people fighting for civil rights."

Testimony in the Federal case has been completed but the trial goes on. Final arguments will take place in the coming weeks. Then the judge will make his ruling, perhaps sometime this spring. Whichever side loses will no doubt appeal.

Of the four plaintiffs -- Paul Katami and Jeff Zarillo, Kristin Perry and Sandra Stier -- Ted Olson said, "They put a real face on discrimination... If the American people would just listen to what the plaintiffs and the other experts said in this case, they will understand so much more the damage that's done to people... Your relationship doesn't count, and you don't count -- you know, that is demeaning. And if the American people see that, they'll see the difference."

David Boies noted, "You could not listen to these people and not be moved by their stories. You could not listen to these people and not be moved by their love for each other, by their desire to be married. By the harm, the pain that they were being caused by not being able to do what we take for granted, which is to marry the person we love."