American Foundation for Equal Rights

Ninth Circuit Decides not to Rehear Prop. 8 Case En Banc [Audio]

AFER lead co-counsel Theodore B. Olson and David Boies along with AFER co-founder Chad Griffin discuss the Ninth’s Circuit’s decision not to rehear the Prop.8 case with the media.


Operator: Hello ladies and gentlemen, and thank you for waiting. Welcome to the American Foundation for Equal Rights conference call on the denial for rehearing in Perry v. Brown.

All lines have been placed on listen-only mode, and the floor will be open to members of the media for questions following the presentation.

Without further ado, it is my pleasure to turn the floor over to your host, co-founder of the American Foundation for Equal Rights, Mr. Chad Griffin.

Chad, the floor is yours.

Chad Griffin: Thank you Operator, and thanks to all of you for joining us today.

This is a monumental day, and our case has now entered its final chapter. We begin the final chapter of the Prop 8 case today, and the end is now in sight.

And, just to put this in some context, it’s about three years ago, to the week in fact, that this case was launched. And, Kris and Sandy, who are the plaintiffs in this case, and Paul and Jeff, at the time had been together for almost 10 years, three years ago. And, today, they and their families and the thousands like them across the state and across the country continue to wait for the right to be able to marry the person that they love.

Kris and Sandy, in particular, their two young sons, which many of you have met at the last press conference, their sons were just entering high school when we launched this case three years ago. Now, they’re entering their final year in high school and will likely be graduating as this case reaches the Supreme Court. And, ultimately, their parents will be able to hopefully get married right around the time that they graduate from high school and get ready to enter college.

No Americans should have to wait and should have to suffer this length of time to be able to marry the person that they love. And, we are all so excited that today we can now begin to actually see the day that Kris and Sandy and Paul and Jeff and the thousands like them will finally be able to realize the dream that they have had for so long.

And, with that, I’m going to turn the floor over to our co-counsels in this case. David Boies is going to speak first, and Theodore Olson will follow. Also, Ted Boutrous is on this call. And, after they speak and make brief comments, we’ll turn the floor open to questions, and look forward to hearing from all of you.


David Boies: Thank you. Thank you, Chad. And, thank you for your leadership on this project. This is a great step forward towards the day when everyone will be able to marry the person they love.

In 2010, the federal district court in California held that discrimination against gays and lesbians in forbidding them to marry violated the United States Constitution. That was affirmed earlier this year by a panel of judges from the Ninth Circuit Court of Appeals, and today the entire Ninth Circuit has put its force behind the principle that everyone should be able to marry the person that they love.

The reasoning of the district court, the reasoning of the majority in the panel, I think is compelling. It affirms what we’ve said from the beginning, which is that marriage is a fundamental right, that prohibiting gays and lesbians from marrying seriously harms them and seriously harms the children that they’re raising, and there is no justification for that. No one is helped. It doesn’t help the so-called institution of heterosexual marriage. It doesn’t preserve the institution of marriage. Indeed, it undermines it.

So, I think that this is a great day not only for all of our gay and lesbian citizens who can, who are now a big step closer to the time that they can marry, but for all Americans who care about equality.


Ted Olson: Yes, David. I can’t improve on what David has said. And, the words that keep going through my mind are equality, liberty, freedom, decency, respect. The values that we cherish for all of our citizens. The respect and decency that all of our citizens are entitled to from their fellow citizens and from their governments. And, we are one step closer to a point at which Proposition 8 which denied those freedoms and those qualities and that respect and decency and equality  to our gay and lesbian citizens in California will be eliminated, that this vestige of state-sponsored discrimination and second-class citizenship will be removed from the constitution of our largest state.

It is very, very gratifying that the district court and a panel of the Ninth Circuit and now the full Ninth Circuit have put…those courts have put their weight behind an end to this intolerance and this discrimination and this denial of fundamental rights. And, we are very, very grateful that this day has come. We’re not to the end of the line yet, but we’re vastly closer, and it is as Chad said a very monumental day.

Chad: Griffin: With that, Operator, we can turn to questions.

Operator: Certainly. The floor is now open for questions. If you do have a question, please press the number “7″ on your telephone keypad. Questions will be taken in the order they are received. If at any point your question has been answered, you may press “7″ again to disable your request. If you are using a speakerphone, we ask that while posing your question, you pick up your handset to provide favorable sound quality.

The first question comes from Michael Lindenberger at Time magazine. Michael?

Michael Lindenberger: Good morning. I wanted to ask either David or Ted about what’s changed in the last three years in terms of, by the time this case gets to the Supreme Court, the atmosphere politically and legally both is so different than it was three years, you know, obviously, perhaps best symbolized by President Obama’s announcement recently. And, I just wanted to get a sense from you: (a) have you been gratified by that change? And, then maybe, how that might affect either the outcome of the decision or how that decision is accepted throughout the country?

It seems like, you know, three years ago, if the Supreme Court had immediately ruled in some way in favor of your guys’ case, it would have been a much different world than if they were to do that, you know, in six months or a year from now.

I just wanted to get a little thought from you on the changes you’ve seen.

Ted Olson: This is Ted Olson. I’ll start, and then David can amplify on what I have to say. You’re right. The atmosphere and the environment has changed enormously in the three years since this suit has filed. Public opinion has changed. Polls are polls, and they don’t stand for everything. But, the aggregate of the polls have changed some 20 to 25 points in terms of the public’s acceptance of the right of individuals to be married.

There’s the repeal of Don’t Ask, Don’t Tell. President Obama’s momentous statement. The decision from the First Circuit Court of Appeals just a week or so ago in the Defense of Marriage Act case. Judges are recognizing all across the country the rights of individuals to be married and to live with the decency and respect that we accord to other citizens.

Public opinion is changing, particularly among young people.

And, all of that makes a vast difference in terms of the acceptance of the decisions that we’re expecting from the courts, and is very, very, very encouraging.

I think that one of the things that’s happened here is that the more the American people understand and think about and appreciate the issues and appreciate how much it matters to individuals to be allowed to live with equality and dignity, the more the American people accepts that as the right of those individuals, as the right place for America to be.

The court decisions and our case in particular have caused people to have the opportunity to think and talk about these issues, and the more they do, the more favorably they are disposed to accept equality.

Chad Griffin: Yes, I — this is Chad Griffin. I will just add to that, at the time we filed the case, in spring of 2009, I will make these five points. In spring of 2009, polls showed that 54% of Americans opposed marriage, 35% supported it. We had marriage in three states. Don’t Ask, Don’t Tell was in effect. Our president was against marriage. DOMA was untouched. And, the California Supreme Court had just said that Proposition 8 will stand.

Since the filing of the case and since 2009, we’ve more than doubled and added our nation’s capital in terms of the states that recognize marriage. Hopefully, after November, we’ll have marriage in addition in Maine and Maryland and Washington.

We have more than a dozen polls that show the support for marriage equality, over 50%, a majority, of the American public supporting marriage.

Don’t Ask, Don’t Tell is gone.

DOMA has been ruled unconstitutional.

And, the President of the United States has announced his support, as well as multiple court decisions by judges appointed by Republicans and Democrats across this country ruling on things like Don’t Ask, Don’t Tell and DOMA and Prop 8.

So, there has been a tremendous shift. It is clear where this country is headed. And, we are now in a place that the question is no longer “if,” but “when.”

Next question, Operator?

Operator: The next question comes from Julie Bolcer of The Advocate. Julie?

Julie Bolcer: Yes. My question pertains to as you’re talking about the different court decisions. And, I think one that is in the context here is the DOMA case, with the Gill decision last week. Could you speak, broadly, about how that relates to your case? The strategy, the context.

David Boies: Maybe — this is David — I’ll take a brief crack at it, and then Ted can follow up. Obviously, they are two closely related but distinct issues. I think the thing that is important is that the reasoning of both opinions is essentially the same, which is that there simply is no basis to continue to discriminate based on sexual orientation.

It comes up in one context in DOMA. It comes up in another context in the marriage equality issue. But, in each case, what the courts talk about is the history of discrimination against gays and lesbians based purely on sexual orientation, and the harm that that discrimination has caused, and the lack of any justification for that discrimination.

And, so, I think that while the issues are different in certain respects, I think that both of those decisions as well as the lower court decisions that preceded them demonstrate that the country and the law is moving closer and closer to the day that we will have eliminated this last vestige of official governmental discrimination in our country.

Chad Griffin: Operator, next question.

Operator: The next question comes from Molly Ball at The Atlantic. Molly?

Molly Ball: Hi guys. I was wondering if you could lay out the next steps for this particular case and also for the national fight in the courts for marriage equality, and whether you believe that a court-based strategy is the way that marriage equality can eventually be achieved on the national level, rather than through policy making?

Ted Olson: This is Ted Olson. In the first place, the so-called court strategy is responsive to the needs of individuals who have been denied the right to get married. When they go to the county clerk in California, for example, as our clients did and are told that they cannot get married, for someone to tell them that they should wait for a state-by-state strategy for the people to again vote to decide whether they have constitutional rights, that’s not acceptable in this country. That’s not what the Constitution means. That’s not why we have an independent judiciary to consider the rights of individuals.

And, so, the idea that…we have to move forward in courts is the only way, because there could be a hold-out state in — 50 years from now, there could be some states that decide not to change whatever the public might decide. So, it’s very essential that individuals when they’re deprived of their constitutional rights…

And, that was true when people could not get married, because they wanted to marry someone of a different race. They went to the courts and were vindicated by the United States Supreme Court. And, that was true when people were denied an equal education because of the color of their skin. They went to courts to achieve vindication of their constitutional rights.

So, that is what is happening here.

With respect to what is happening next, we expect our opponents in this case will file within the 90 days given to them by the rules of the Court and by the Ninth Circuit decision to seek review in the United States Supreme Court. We’ll oppose that on the grounds that the decision in the Ninth Circuit was correct and should be made into the law as soon as possible.

Whether the Supreme Court takes that case or not, we don’t know. But, they will probably take it or reject it sometime in the month of October. If they take the case, the case will be briefed and argued sometime in the spring, and we would expect a decision by next June, 12 months or so from now. And, we expect that that decision will vindicate the rights of gay and lesbian citizens to marriage equality in the United States.

David Boies: This is David. The only thing I would add is that going to court is not inconsistent with continuing to seek marriage equality through the legislatures. While this case has been going on, New York, my state, voted for marriage equality. So, I think the court procedures try to vindicate individual rights, but they do not hold back in any way the progress that you can make legislatively.

Operator: The next question comes from Maura Dolan at the L.A. Times. Maura?

Maura Dolan: Hi. Is there any significance to the Supreme Court taking this case before the DOMA case? Is there any…? I had some law professor comment on that, that you guys may now be ahead of DOMA. Why would that even matter?

David Boies: I don’t think it does matter. I think actually probably both cases will be approximately on the same track. That is, I think you’re probably going to have certain decisions with respect to both cases in the next term, and they could even be argued very closely together.

But, I don’t think the issue is which case gets there exactly first. I think the key thing is that both of the cases are really underpinned by the same commitment to expanding equal rights.

Ted Olson: I agree with what David said, and the justifications that people offer for prohibitions such as Proposition 8 and the justifications that they offer for legislation such as the Defense of Marriage Act are basically the same, that the right of marriage as it existed should remain the same, just as people argued that people of opposite races shouldn’t be permitted to marry, which was a long-standing view of many states, and that there is somehow damage to be done to heterosexual marriage by individuals marrying someone of the same sex.

All of those various arguments have been rejected now in the Defense of Marriage Act case and in the Proposition 8 case. And, those arguments are the same arguments in both cases that will be heard by the Supreme Court, if the Court decides to take one or both of these cases which we suspect they probably will.

Chad Griffin: Next question, Operator.

Operator: The next question comes from Robert Barnes at the Washington Post. Robert? Mr. Barnes, your line has been opened.

The next question comes from Bob Egelko from the San Francisco Chronicle. Bob?

Bob Egelko: Yes. Mr. Olson said that the outcome that you’re expecting is to vindicate the rights of gays and lesbians to marriage equality in the United States. But, the Ninth Circuit ruling doesn’t go that, sweep that broadly. Are you anticipating, or will you argue for the Court to, if the Court takes this case up, to address the broader question of a national fundamental right to same-sex marriage? Or, is the narrower, more California Prop 8 focused perspective of the Ninth Circuit opinion one that you will be either content or advocating for if the case should reach the Supreme Court?

Ted Olson: Bob, we will be making the same arguments that we made. This is Ted Olson. We’ll be making the same arguments that we made in the district court and in the Ninth Circuit Court of Appeals. Those are both the broader and the narrow arguments.

Any lawyer will make the broader arguments that the denial of the right to marry is a denial of a fundamental right and, therefore, a violation of the due process clause of the 14th Amendment and that the denial of equality with respect to a fundamental right on the basis of sex and sexual orientation is a denial of equal protection in violation of the 14th Amendment.

We also argued, as you know, in California, that having recognized the right of individuals to get married, taking it away also violates the Supreme Court’s decision in the Romer case which is rooted both in due process and equal protection.

That issue by the way is not strictly limited to California. It’s an issue that’s definitely going to be before the people as a result of the North Carolina election a few weeks ago. It is something that’s a very real possibility in Maryland and the state of Washington, because of changes in the law there. It is a very real significant issue throughout the United States.

But, we are going to be arguing in the broadest possible way. The Supreme Court sometimes takes these things one at a time. But, ultimately, fundamentally, the denial of this right to individuals who wish to marry someone of the same sex damages their rights, and the justification which has been offered by opponents of those rights in every single case essentially boils down to the same thing. And, every court recently to consider it has decided that those justifications simply cannot be, are not warranted and must be rejected.

So, all those arguments are going to be before the Court, if the Court takes this case.

Operator: The next question comes Ethan Bronner at the New York Times. Ethan?

Ethan Bronner: Hi. I wanted to ask either Mr. Boies or Mr. Olson, is it conceivable if the Court would join these two cases, yours and the one from the First Circuit? Or, is that inconceivable?

David Boies: I think it’s conceivable.

Ethan Bronner: Likely?

David Boies: I don’t think that, at least I couldn’t offer an opinion as to whether it would be likely or not. But, I think it is certainly possible. They certainly have some common elements to them. And, as I say, they’re going to sort of arrive at the Court’s doorstep relatively contemporaneously.

Ted Olson: I agree with what David said. I don’t know that they would actually join the cases, but they might have them heard on the same docket, the same day as one another.

The Court frequently does that. A few years ago, it took the two affirmative action cases, one from Kentucky and one from Seattle, Washington, and heard those at the same time. Before that, the Michigan affirmative action cases. Before that, the cases where people convicted of sex offenses had to register. Those two cases were put on the same docket and heard at the same day.

It’s quite likely, or it’s quite possible. I wouldn’t say “likely.” I agree with David. We don’t know. But, it’s quite possible since they’re on the same, somewhat similar same track as far as time is concerned that if the Court were to feel that those issues were appropriate for it to resolve, that they ought to handle them at the same time.

Operator: The next question comes from Chris Geidner at Metro Weekly. Chris?

Chris Geidner: Hi. Thank you all for holding the call today. Chad, I guess, I have a question for you. In terms of the changes that have gone on that have been referenced over the course of the time since this suit has been brought, what is your view about the role that this case itself played in that change?

Chad Griffin: Well, there is…first and foremost, I want to say there are many things that have happened. I referenced court cases across the country. The administration, the Obama administration’s refusal to defend DOMA. All of the amazing work that has been done in states across this country. As you know, this is actually my final week and final day here at AFER, as I step over to be the new president of HRC. And, HRC has for a very long time done work both in Washington and across the states along with many other great organizations. And, credit should be shared far and wide.

I do also want to highlight there was a noticeable shift after the time that this case was filed, and much credit is due to two men that I consider heroes in my life, and that would be the two men on this call, Ted Olson and David Boies, joining together from opposite ends of the political spectrum, two individuals who headed off on one of the most famous court cases of our time.

To put their partisan differences aside and to join together on this incredibly important issue allowed our movement for the first time to lift the partisan veil from which this issue had always been discussed and debated and to shine the spotlight on the human face, that being the plaintiffs in this case, their families, and their stories, and to put discrimination on trial in a court of law where the truth and facts are the only thing that matters. And, in this case, discrimination lost. It’s now lost three times, and I expect soon it will lose a fourth.

But, there is no doubt the contribution that was brought by AFER joining forces of these two brilliant legal minds has had and continues to have tremendous impact in making this issue no longer, forget bipartisan, non-partisan issue. And, I just once again give great thanks to the two gentlemen that are on this call that have become close friends and, in fact, family of all of ours, as we progress through this case.

So, I’m obviously incredibly excited to continue working with them, as this case moves to DC and so do I, to ensure that once and for all we have erased bigotry and discrimination from our laws.

Thanks for the question, Chris.

Operator: The next question comes from Josh Gerstein at Politico. Josh?

Josh Gerstein: Hi. Thanks for doing the call. This is, I guess, for Mr. Olson or anyone else who wants to take it. You mentioned that you would oppose the certiorari petition. Is that just because that’s what one does under these circumstances? And/or, is it because you don’t want to jeopardize the advances you’ve made on behalf of the clients and the broader group of similar potential plaintiffs there in California, rather than trying to actually establish a clear Supreme Court ruling for a national federal constitutional right to gay marriage?

Ted Olson: The answer is a little bit complicated, but it’s also fairly straightforward. When we undertook this case, just three years ago, we undertook to represent four individuals, Kris and Sandy and Paul and Jeff, who wished to get married in California and wished to remove the obstacle that California had put in its constitution prohibiting them from getting married.

So, our goal was to seek the overturn of Proposition 8 in California. We have succeeded in doing that so far in the district court, and now in the Ninth Circuit.

A decision affirming or refusing to overturn that case is a complete victory on behalf of the individuals we represent and tens of thousands of persons in California. We very much of course have an obligation to those individuals to preserve that victory and that success in overturning Proposition 8.

However, we understand that the Supreme Court may consider this a national issue, since it is an issue that’s bubbling up all over the United States and being challenged in various different places, and it would be completely understandable. And, we would not try to avoid the full ventilation of those issues before the United States Supreme Court. We would look forward to it.

But, we have an obligation to our clients and to the citizens of California who’ve been waiting now for three and one-half years, or nearly four years for the opportunity to get married like their fellow citizens. And, we would want to preserve that victory fundamentally.


Operator: The next question comes from Lisa Keen at Keen News Service. Lisa?

Lisa Keen: Thank you. Is “Yes on 8″ limited to asking the US Supreme Court to weigh in on the Ninth Circuit panel’s reasoning about removing a right? Or, could they ask the Court to look at all the issues, equal protection and fundamental right? And, what are you hoping for?

David Boies: Obviously, the Supreme Court is free to decide this on whatever basis it decides is appropriate. It could decide it on the more narrow grounds that the Court of Appeals relied on, or it could decide it on the broader grounds.

Obviously, equally obviously, we would prefer the broadest possible determination that marriage inequality violates the federal constitution regardless of the particular circumstances of a particular state.

On the other hand, it would be a complete victory for our clients and a tremendous step forward for gay and lesbian citizens all across this country and for all Americans who care about equality if this were affirmed on any grounds.

Lisa Keen: I understood that the Supreme Court can certify whatever question it wants to. But, I was just wondering, is “Yes on 8″ limited in what it can appeal to the Supreme Court? There’s no technical…in other words, they can ask the Supreme Court to rule not only on the Ninth Circuit panel’s decision but also on the district court judge’s reasoning.

David Boies: Well, they would be seeking a reversal of the decision. And, their decision is to seek reversal. The Court’s decision is to determine what grounds it will consider in terms of making that decision. So, they don’t get to dictate and we don’t get to dictate what grounds the Court ultimately decides the case on, or what issues the Court ultimately decides.

Operator: The next question comes from Maura Dolan of the L.A. Times. Maura?

Maura Dolan: Hi. Yes, hi. Just one other quick question. Mr. Olson basically said that he believes the Supreme Court is going to take up this case. David Boies, do you agree that it’s likely that the Supreme Court will not just let this Ninth Circuit ruling stand and will take up the question itself?

David Boies: I think that it is probably likely that the Court will take one or both of the two cases that we’ve been talking about, in terms of the DOMA case and the marriage equality case. I don’t have a view as to whether they will likely take this case or not.

I think that if the Court were to be inclined to look at just the narrower question that the Ninth Circuit decided the case on, that might be a factor for them to decide that this was not a case for them to take. But, I think that the fact that you have the DOMA case as well probably increases the likelihood that the Court would take this case.

Operator: The next question comes from Cynthia Yockey at A Conservative Lesbian. Cynthia?

Cynthia Yockey: Hi. Thank you very much. Are you — this is probably mostly for Ted — are you concerned that Democrat and Republican social conservatives in Congress and the state legislatures would respond to a ruling for marriage equality for gays by creating an alliance to attach (ph) an amendment to the Constitution forbidding same-sex marriage equality? And, if you think so, then I have a follow-up to that.

Ted Olson: I firmly believe, and this is reflected in the polls that Chad particularly talked about, that the American people will accept a decision from the Supreme Court, just as the American people accepted a decision from the United States Supreme Court that individuals of different races could get married, in 1967. The American people accepted that as the right decision.

More and more, citizens in America understand that allowing individuals who love one another, who love a person of the same sex, want to have the same equal rights and equal dignity, does not harm heterosexual marriage or heterosexuals in any way and, in fact, promotes equality.

The expert witness, under cross examination by David Boies, brought forward by the other side said this nation would be more American the day it recognized the rights of individuals to marry someone of the same sex.

I believe firmly that the American people more and more are coming to accept that and that a majority of them do now and that an increasing majority of individuals will. And, if the Supreme Court adds its voice to those decisions that have come from the Ninth Circuit and from the First Circuit, the American people will accept that.

Chad Griffin: And, I think no better question and response to end on than that. And, we are one step closer to being more American, as Mr. Blankenhorn said in court.

So, thanks to all of you who joined. I know there are many others. We promised this wouldn’t go longer than 11:00. If anyone still has questions, feel free to call the AFER press office, and we’ll certainly put you in touch with the appropriate person.

An historic day, and thanks to all of you for your time on this issue.

Thanks, Ted. Thanks, David.

David Boies: And, thank you. Thank you, again.

Ted Olson: Thank you. Congratulations again, Chad.

Chad Griffin: Thank you all.

David Boies: Have a great day. Take care.

Operator: This does conclude today’s teleconference. You may now disconnect.