Press Conference Announcing the Constitutional Challenge to Prop 8
May 27th, 2009
Here is the video and transcript of the press conference held earlier today by lawyers for the American Foundation for Equal Rights, announcing their lawsuit against the state of California in federal courts.
Unofficial Transcript of the Press Conference:
Chad Griffin: Good morning. My name is Chad Griffin, and I’m here today as the board chairman of the American Foundation for Equal Rights, and to introduce the plaintiffs and the legal team that will be fighting one of the most important civil rights cases in our nation’s history.
Yesterday, the California Supreme Court issued a ruling that had a profound effect on California gays and lesbians. We saw thousands of people take to the streets last night to express their sadness, grief and dismay at the court’s failure to protect their fundamental rights. But yesterday’s ruling had an even more profound impact. It signaled to gay Americans across this nation that we are not viewed as equal in the eyes of the law. To every American whose rights are being denied, we’re here to say this fight is not over and we will win.
We’re taking this fight to the federal courts in order to protect the equal rights guaranteed to every American by the United States Constitution. Our courts exist to protect our rights when they are violated, and we are prepared to go all the way to the United States Supreme Court to find justice.
We are acting now because as Dr. King said, “Justice delayed is justice denied.” For even one couple to live through one more day of state-sanctioned second-class citizenship is one day too many.
Two extraordinary attorneys are taking this case as co-counsel: Ted Olson and David Boies, two lawyers who faced off in the most contentious Supreme Court case of all time, Bush v. Gore, but who are working together to fight this historic civil rights battle. They share an abiding belief that all Americans are guaranteed equal protection under the law, and are guaranteed the right to marry the person they love.
These lawyers standing here before you represent the plaintiffs standing here today. Paul Katami and Jeffrey Zarrillo, and Kristin Perry and Sandra Stier. Paul and Jeff have been in a committed relationship for eight years, And Kris and Sandy have been together for nine years and are the parents of four boys. It does not weaken the fabric of our communities to grant them these basic familial rights. It strengthens them. It does not undermine marriage to extend to these loving couples. It affirms it.
This is one of the threshold civil rights issues of our generation. Justice is on our side, and we’re about to reclaim it.
I am proud to introduce one of the finest, passionate, and eloquent lawyers in this country, Ted Olson.
Ted Olson: Thank you, Chad. Good morning everyone. Thank you for being here.
I’m Ted Olson, and I’m very, very pleased to be here with my friend and colleague, David Boies. As you heard, we are two lawyers from opposite ends of the political spectrum who have come together to support one of the most important issues of our time. The case we filed on behalf of the individuals that you see before you today is not about liberal or conservative, Democrat or Republican. We’re here, in part, to symbolize that. This case is about the equal rights guaranteed to every American under the United States constitution.
For too long, gay men and lesbians who seek stable, committed, loving relationships within the institution of marriage have been denied that fundamental right that the rest of us freely enjoy.
Yesterday, the California Supreme Court said that Proposition 8 makes it okay for gay men and lesbians to be our neighbors, our friends, our doctors, our lawyers, our parents, our children, our brothers and our sisters, but they can’t get married.
The plaintiffs in this case are Americans. They work hard, they pay their taxes and they want to get married just like many of the rest of us. They simply want to live their lives without being discriminated against by their government. All they want are the freedoms to which they are entitled under the constitution and to which the rest of us so freely enjoy.
Creating a second class of citizens is discrimination, plain and simple. The constitution of Thomas Jefferson, James Madison, and Abraham Lincoln does not permit it. Our nation was founded on the principle that all Americans are created equal. This case is about ensuring that every American is treated equally under the law.
California has created a separate relationship for same sex couples called Domestic Partnerships. That is separate, and that is not equal. It is unconstitutional. Proposition 8 denies people fundamental constitutional rights.
Our courts exist to protect people when their rights are infringed. Citizens of this country, when they’re denied equal rights, turn to the courts for vindication of those rights. That is why we have them.
We’re going to court because people shouldn’t have to surrender their fundamental rights to a popular plebiscite. People should not have to beg to be treated equally, or wait for decades for popular approval to be treated equally. And when people are denied their rights, they deserve a remedy, and the courts are the most direct way to accomplish that.
Now I would like to introduce my dear colleague and dear friend, David Boies.
David Boies: Thank you Ted. It’s a pleasure to be here. I must say that being up here on a platform with Ted Olson and all these lights makes me want to urge everybody to count every vote. [Laughter.] But we are here today for something that is of equal and perhaps even greater importance. Our constitution guarantees every American the right to be treated equally under the law. There is no right more fundamental than the right to marry the person that you love and to raise a family.
The courts exist to reverse injustices. The purpose of our constitution and the purpose of our court system is to make sure that the promise of our constitution is extended to every American. That’s what this lawsuit is about.
The concept of equality, of equal rights and equal justice under the law, is not just in our constitution. I believe it is in the hearts and souls of every American. And we have tolerated discrimination and injustice in the past because we have been blinded to the fact that the person being discriminated against is simply another human being, another American. That blindness has enabled us historically not to recognize the equality of people based on sex, based on race, based on religion, and now based on sexual orientation.
This lawsuit is about the courts saying that no matter how blind people may be, the constitution guarantees that everyone deserves the equal rights that every human being is entitled to. And we go to court because that is the place that those equal rights have been established time and again over the last hundred years. Thank you.
Chad Griffin: The attorneys will now take a few questions.
Q: A quick question. Can you explain briefly how this case came about? How you found these particular plaintiffs or how they found you, and …. [inaudible] for being involved in this case together. How did that union come about?
Boies: I’ll address part and I think Ted will address part. First, as Ted said, this is not a question of Republican/Democrat, liberal/conservative. Ted and I as everybody knows have been on different sides in important political issues. We come from different parts of the political spectrum. But I think Republicans, Democrats, conservatives and liberals all recognize the importance of equal rights guaranteed by the constitution. This is not something that is a partisan issue. This is something that is a civil rights issue, a legal issue. And I think that is what has brought us together.
Ted and I are good friends. We have worked together as well as on opposite sides. And when he got involved in this, he called me and asked me to be involved. And I was delighted with the opportunity to do that. And I’ll let him address how the first part of it started.
Olson: David and I share many values. We may vote differently from time to time, but we’ve spent a lot of time together and we’ve talked about things that matter to us as Americans. We agree more often than we disagree. When I was first approached about this case, I felt that it was very important that we present the American people and the courts a unified front, and tell the courts and the American people through our presence and our participation that this is not about right or left or partisan politics. This is about what we all share as Americans.
The other thing that David and I share is a passionate desire to be successful when we go to court. And I can’t think of a way to succeed with this case that’s better capable of doing that than to have David Boies on the team.
How did the plaintiffs come to us? We… I was contacted many, many months ago about whether I would be willing to participate in this legal challenge through Chad and this organization, this wonderful organization that he’s created. And the individuals who you see before us are individuals who came to us expressing a profound desire to be married. As you heard from Chad, they’ve been in personal relationships for a long time. They feel that they’ve been denied the right and we want to help them achieve that.
Q: …if you fail, does that further codify or solidify marriage discrimination?
Olson: The question was asked what would happen if we fail. In the first place, we don’t intend to have that happen. We believe that the courts are ready to grant equality to citizens based upon sexual orientation, and are going to be sensitive to the fact that, as David said eloquently, that for too many decades, centuries really, individuals in this country, sadly, have been the brunt of discrimination on the basis of sexual orientation.
On the other hand, we recognize the reality that no one can predict the outcome of any case. We’re confident about this case. But civil rights have been won by individuals, whether they involve race or sex or other issues, by bringing the case to the American people and to the courts. And every time that people do that is a step forward, even if there might be small defeats along the way or even important defeats along the way, because ultimately the American people and the courts of this country come to the right conclusion. And we’re confident that that will happen.
Q: …Do you think there might be a problem with getting the federal courts to hear this case since it deals with the California Constitution?
Olson: Well, this is a case that challenges the status of individuals in California who wish to marry under the rights granted to them by the federal constitution, the United States Constitution, the Due Process clause and the Equal Protection clause of the United States Constitution. The California Supreme Court yesterday said that California could amend its constitution, but the decision yesterday was purely a matter of state law. In fact, I think as David might point out, the Court went very far to point out that this was simply a decision about California law and the California constitution. It did not in any way suggest that these individuals or the plaintiffs who might seek rights under the federal Constitution would be affected by that decision.
Boies: I think that’s exactly right, and the United States Supreme Court has held in a number of cases and consistently held that the United States Constitution is supreme, that if a right is guaranteed by the United States Constitution, no state — not by state law, not by state constitution — can infringe that right. And the California Supreme Court was very clear in its opinion that it was simply holding that California had amended its constitution. It was not deciding whether that amendment of the constitution under state law was constitutional under federal law. And that is the issue that the federal courts will test.
Q: What about the understanding that states are responsible for defining marriage in their own state, if you will? But what’s to stop the federal court or the Supreme Court from saying take it back to your own back yard? We have nothing to do with that.
Boies: The United States Supreme Court from 1967 forward has made crystal clear that marriage is a fundamental right guaranteed by the federal constitution, that it cannot be infringed by the states. There is no proposition of law that says that marriage is exclusively to be determined by the states, that they discriminate against people in terms of race, in terms of sex, in terms of sexual orientation because of the way the state law goes. The Federal Constitution is designed to prevent states from discriminating among their citizens. And that is what this case is about.
And as I say, for more than forty years, the United States Supreme Court has been crystal clear that marriage is a fundamental right of every human being, and that states cannot discriminate based on policies that do not have an important state interest in terms of who they allow to be married and under what circumstances. The court has even held that a state can’t prevent prisoners from getting married. There have been numerous decisions by the United States Supreme Court that marriage is a fundamental right guaranteed by the federal Constitution.
Q: Do you believe that these new ballot initiatives that are currently in the works should not even go before the people of California or should they be put on hold?
Boies: I don’t have a view on that. This lawsuit is designed simply to establish a matter of federal constitutional law. In terms of, would I have preferred that Proposition 8 didn’t pass? Of course I would. Would I prefer that it didn’t exist? Of course I would have. But this is not a question of state law. This is a question of the federal constitution law.
Olson: And I might add with respect to that, that to the extent that people want to bring the issue back to California voters and hope that they will change their mind next time, that’s fine. And to the extent that is happening in other states that simply keeps the issue before the people, and to the extent that progress can be made in that fashion, that’s fine too. But in the meantime, these individuals who are being denied their constitutional rights have a right to have those rights vindicated now.
Q: [crosstalk] …friend who is gay, did that impact your decision to pursue this case?
Olson: I’m sorry…
Q: Do either of you have a family member or friend who is gay, do you know somebody personally within your circle, did that impact your decision…
Olson: I would say that… I will let David speak for himself, but I suspect that there is not a single person in this room that doesn’t have a family member or a friend or a close acquaintance or a professional colleague — and many of them — who are gay. And if you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally like the rest of us, and not be denied the fundamental rights of our Constitution.
Boies: I couldn’t have said it better.
Q: Why do you dismiss the warnings of some gay rights advocates that this is not the time to bring this in federal court because of the nomination of … [intelligible]
Olson: Let me answer that in part and David finish. There are going to be many people in this country that think this is not the time to go to federal court, or you’re not going to be successful in federal court. David and I have studied constitutional law. We’ve practiced law longer than we’d rather admit. We think we know what we’re doing. We think we’ve studied the Constitution, we’ve studied the United States Supreme Court, there are a number of very, very important decisions of the United States Supreme Court upon which this case is and will be predicated. One of the cases that David alluded to, Loving vs. Virginia, when the United States Supreme Court held in that 1967 case that Virginia could not prohibit people of different races from being married. There are many important precedents. But we respect people that might have a different point of view with respect to the timing of a constitutional challenge.
But when, as lawyers, individuals come to us and say our constitutional rights are being denied to us, we have had this relationship with one another. We want to live in marriage like other people in California are entitled to do, we are not going to say to them why don’t you wait for another ten years or another fifteen years? Why don’t you just stay where you are and not have the same rights as the rest of Californians? We can’t say that to them. We think they’re right, we think their constitutional rights are being denied, and we’re going to help them achieve that equality.
Boies: I think that reasonable minds can obviously differ as to when a constitutional challenge should be made, and where, and at what circumstances. But when you have people being denied their constitutional rights today, I think it is impossible, as a lawyer and as an American, to say to them, no you have to wait. Now is not the right time. I think if we’d done that in prior civil rights battles, we wouldn’t have achieved the victories that we have. I think that it is critical to understand that this is a present, continuing violation.
I also think that it is important to understand — and both Ted and I have said this — this is not a conservative/liberal issue. Conservatives and liberals alike have a stake in the equal application of the laws. Conservatives and liberals alike have a stake in making sure that government does not intrude, does not limit the ability of people to exercise their fundamental rights, including the fundamental right to marry the person you love.
Q: Do you think that the Supreme Court yesterday created a separate class of people, those 18,000 plus people in same-sex marriages who are now treated the same, did that inadvertently you think help your case, and do you think that might be the intent of the justices? You’re smiling…
Boies: Well, as Ted has said, I don’t think any of us can tell you what the California Supreme Court intended, and I think you have to read the opinion for that. But I think it is clear that the decision does emphasize the lack of equal protection that currently exists in California.
Q: I have two questions. To Mr. Olson, I represent to gay community, and I am a representative for Frontiers in L.A., and forgive me for this, but there is a tremendous suspicion in the LGBT community about your involvement in this because we never thought you were pro-gay. [Laughter.] So could you explain a little bit more and perhaps alleviate some of those suspicions, because we see you with the Federalist Society and we see you aligned with folks who traditionally are opposed to LGBT rights. That’s for you, and for Mr. Boies, the second question is do you intend to address these issues …[unintelligible] …with President Obama who seems to be delaying movement on DOMA and on gays in the military in particular, and … [Unintelligible]
Olson: Should David answer the easy question first? [Laughter.] I don’t think I’ve ever been a part of any organization that was anti-gay or felt that gays are not entitled to equal rights. I have lived my life in a manner consistent with that. The organization that you mentioned, the Federalist Society believes strongly in limited government and individual rights. Each member of the Federalist Society has their own idea of what individual rights are, what limited government is and what the free market is and that sort of thing. But the Federalist Society doesn’t have any creed at all. It brings together people who want to debate important issues having to do with the law.
I hope that people don’t suspect my motives, but we’ve had lots of conversations about this. I feel very, very strongly that this is the right position, and this is the right position for America, and that I hope people will believe me. But all I can do is prove to people by what we do with this case and our actions that we really fundamentally believe what we’re saying. And we’re going to win this case.
Boies: Let me just add a point on that last question. I’ve known Ted well for over ten years. We’ve been on the same side sometimes, we’ve been on different sides other times. I like it better when we’re on the same side. He is a person that is committed in his heart and soul to equality. He is committed in his heart and soul to the Constitution. And that is why he is here and that is why he asked me to participate in this litigation.
With respect to the President, I would urge that the President move forward on initiatives that are important to establishing true equality for people of all sexual orientations. This is an issue whose time has not only come, but long passed. And we must move forward. I think it is important to move forward on every front. It’s important to move forward on the fronts that the executive branch can control, I think it’s important to move forward on the fronts that the legislative branch can control, and I think it is critical to move forward on the equal rights articulations that are the province of the courts.
Olson: We are supplying materials with respect to declarations that are being filed in a preliminary injunction. We talked it over with them, we promised that this press conference that it would be about the filing of the litigation and to explain its parameters and how it came about, and there will be opportunities in the future for them. Believe me, they will have many opportunities to express themselves, but today is not the day.
Olson: Pardon me?
Q: If you were to prevail in this case on the merits, it would establish a nationwide right to marriage for same-sex couples everywhere?
Olson: Yes. The principle — I think we’re done at this point — the principle we’re expecting to establish in this case, that the constitution of the United States, just as the Supreme Court held in Loving vs. Virginia, that the Constitution prohibited states from restricting marriage to people of different races, that the Constitution of the United States protects the right of individuals, same-sex individuals, to receive the opportunities and blessings of matrimony just like the rest of us.
Thank you very much for being here.