By Greg Toppo, USA TODAY
A well-known attorney due to ask the U.S. Supreme Court this month to strike down a California law banning same-sex marriage says the high court may very well present a united front in favor of gay and lesbian rights.
In a wide-ranging interview this week with the USA TODAY Editorial Board, attorney David Boies said he believes that the court's ruling, expected in June, "will not be a 5-4 decision. I don't know whether it's going to be 6-3, it's going to be 7-2," he said. "I don't know where it's going to come out, but I don't think this is going to be a 5-4 decision."
Chief Justice John Roberts' surprise decision last year to uphold President Obama's health care overhaul, he said, shows "the court's willingness to take a careful look at issues and not just conform to some people's view of where they're going to come out."
Boies, who represented Al Gore in the 2000 presidential election recount, is scheduled to argue the case - one of two same-sex marriage cases before the court - on March 26 and March 27, alongside Theodore Olson, a former solicitor general under President George W. Bush. The pair brought the lawsuit against California's Proposition 8, a November 2008 constitutional amendment that defines marriage as only "between a man and a woman."
In the interview, Boies drew parallels between the struggle for same-sex marriage and the fight for interracial marriage in the 1960s. Opposition to both, he said, comes from the "same reservoir of ignorance" about those involved.
But the USA has undergone a "tremendous" demographic shift in attitudes, especially among young people, he said. "Unlike people of my generation, my children and my grandchildren have grown up living with, knowing people who were outwardly gay and lesbian. And they have learned that they're just like us. ... And when you see that they're just like us, the rationale for discrimination melts away."
Boies, 72, said his biggest fear is that most of the nine sitting justices "are my age or older" and have grown up in an environment of "extreme hostility to homosexuals." He added, "Judges are supposed to put that aside and our very best judges do, but it's not an easy task."
He plans to argue that marriage is a right so fundamental that depriving gay and lesbian couples of it seriously harms both them and the children they're raising. What's more, he said, allowing gay and lesbian couples to marry has virtually no effect on heterosexual marriage attitudes or plans.
The court will likely hear from critics who say allowing same-sex marriage nationwide would create a backlash and pose a threat to traditional marriage, stifling debate on the topic at a state level and threatening the religious liberty of those who oppose it.
"I think it would make the collapse of our marriage culture irreversible," said Washington, D.C., attorney Ed Whelan, a former law clerk to Justice Antonin Scalia. Whelan has filed a friend-of-the-court brief in the case and noted that the Netherlands saw "a marked decline" in traditional marriage after approval of a 2001 same-sex marriage law. While marriage may bestow some benefits to same-sex couples, he said, for others it creates a "mission confusion" that could undermine marriage and be "very destructive to this country."
Boies said fears of a backlash are overblown. Unlike other divisive Supreme Court decisions such as Roe v. Wade or Brown v. Board of Education, same-sex marriage has been a topic of widespread debate over the past several years.
"While people can hold moral and religious views strongly," he said, "once the Supreme Court rules on a legal right, if that legal right is not infringing on somebody else (and) not hurting somebody else, the American people accept it."