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tv   After Words  CSPAN  November 29, 2015 9:00pm-10:01pm EST

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as much about the people and personalities behind the defense of marriage act case as it is about legal strategy and you write as you were preparing to put a post-it note on your computer that said it's all about edith stupid, so tell us about the events in her life.
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the main message i was trying to tell myself is to win the case is to focus on the facts of her life and they really are remarkable. her life kind of involved a panoramic story of how life has been or was for people in this country in the 20th century so i thought that was very important that i'm going to give you a couple of anecdotes. ev group up in philadelphia and depression and came from a middle-class jewish family. her fodder lost everything during the depression and that they had to move in with relatives. she went to college at temple university and that at college she kind of realized she fell in love with a woman and realized that she was a lesbian and broke off her engagement because of that. there was a new movie out about
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patricia's book that tells the story that wasn't realistic for women at time to have a commitment to another woman said she called her fiancé and got reengaged. needless to say that marriage didn't last very long was a matter of months. she would go out with her husband on a saturday night and she saw two women together she would get jealous so she said to her husband you deserve to be loved the way you deserve to be and i need something else. she essentially came out to her husband and like so many other people, she decided to move to new york in order to be gay. the bigger problem when she moved to new york wasn't being gay, because anybody that was middle-class at that point. the bigger issue is the sheet
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needed to support herself. she assumed she would marry someone and he would support her and now she has to find a job. she became one of the first-ever computer programs in the united states. she got a job working on the computer which was the atomic energies atomic energy commission's computer which was housed in the entire city block at nyu and here's another great story. she gets a letter from the fbi. >> she of course was terrified because they were sure they were going to ask her.
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if she asked the question not only would she have a job working on the computer but that would be the end of the career. she was right about it and included it at the new york law firm woman at least as opposed to a gay man. it is interest and hoping to throw out the fbi off their game they were only interested in her sister's friends and tied it to the communist party. this is integrable sori already.
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she goes to a restaurant in the village and there she meets. and at least from our perspective. she spent the next two years pursuing in the sense that she was always waiting to find out the amount. what would happen if he were a diamond engagement ring again at ibm.
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they would say who is the lucky guy and i wouldn't be a good answer that question. so she got down on her knees and pulled out a circular pin and said will you marry me and started an engagement that lasted 40 years. what's incredible about that episode was 1967. two years before the riot, so the idea that in 1967 if occurred two women to get engaged that they would have the self-esteem and courage is incredible and then what happened for the next 40 years because she was diagnosed with a terrible form of ms. to make sure she said she said that the diagnosis of us to both of them and they had a post-it on the refrigerator door they seize joy and there is no question about the way they run
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their lives. it's about an 2007 she didn't have long to live and even though she had been reluctant to leave new york to get married to go to canada because it is very hard for someone that is a quadriplegic. after getting this terrible diagnosis she said that you still want to get married and he said i do. they went with four men and women and best man in toronto and they got married and the toronto held him so they could adjust wheel chair into the airport hotel. this is a couple that really wanted to get married and sadly a year and a half later they got hit with this huge estate tax bill.
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>> host: it's also a personal story and i was hoping you could talk about how you decided how much of yourself doing good. we have a legal book that explains the strategy and how we did what we did and then as we started to plan and went through the outline of the chapters we couldn't tell could tell the story without some of my own stories and i think the reason is -- i remember growing up hearing from gloria steinem the personal political. you don't necessarily have to believe that about everything but i think that when it comes to gay writes there is no question of the personal and political and i couldn't explain this incredibly dramatic change that has occurred with the seachange without describing the
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changes in my own life. so probably the most interesting story is the story i tell about why it was the first time i heard her name and i'm happy to tell you that. >> we would love to hear about the personal connection. >> so, she died in 2009 and unfortunately, we have some mutual friends. she had been turned down by some civil rights groups and we had a mutual friend and he said why don't you call rodney. when i got a got the phone calling of exactly who it was. i never met edie before but i knew who it was and not that she was a celebrity back then, but about 20 years before, i had been in my third year of law school and i was coming out and i was definitely a late bloomer. i waited even though i had anxiety and concerns probably in high school certainly in college and certainly in the law school i waited until the end of my third year to have the gumption and courage to do anything about
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it and it happened shortly thereafter, my parents would come to visit me in new york city and it was bad planning on my part because i scheduled to visit on gay pride weekend and when my parents were coming to visit me they have to had to kind of find their way through the parade. by the time to go to my apartment they were in high form and started talking about how they couldn't understand what are people so proud about. what's with all the rainbow flags? my college roommate roommate they said what is she doing in the parade and what is she proud about etc.. they said you have to stop. they persisted. i said again you have to stop. my aunt said why are you gay and i said yes. my mom kind of what drove her to the wall.
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let me be perfectly clear. she excels about this every two seconds every chance she gets and my mom likes likes the many others have evolved on this issue and that is a good thing. after that happened to me as you can imagine i was pretty low. i went around asking and i said i knew i needed a psychologist that was good on gay issues the way that we talked about it back then and the name but i kept getting bb the leave it or not was eddie spouse.
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now i don't know it's not typical for the psychologists or psychiatrists to talk to their patients about their own lives. but looking back on it, i think that she was publicly convinced that the only way that she would be able to persuade me is pretty stubborn at the time. that i would have any chance of having a lifelong love affair committed relationship with family is if she told me about her own relationship. and i ira member are telling me that this was a brilliant mathematician and a study that and why you nyu and i remember all of these things. she gave me an amazing sense of confidence and then 20 years later in 2009 i've opted to the apartment.
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do you describe the situation when you are clicking in the new york court of appeals in the mid-1990s when he played a part of the ruling and made it possible for gays and lesbians to adopt and you talk up a fellow clerk of the road that was as causative as i was at that point criticized you for making that case. how do you exchange that now looking back? spinnakers like one of those other stories that i've been telling of a symptom of how different the world was back then. so this was 1996. i was a kid to be honest with you i was clerking for the chief judge, and we had what was a very big deal case at that time among which was essentially whether gay people could adopt new york. it was very controversial and was high-stakes and actually when the case was first voted out, we were in the dissent.
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and it was intense. there was a lot of work being done and a lot of lobbying to get the other but you need to court of appeals. and even though -- i have to tell few back then i didn't think there was a chance i would ever have a kid frankly. i don't think i ever thought there was a chance i would certainly have no chance i would get married. that was a pipe dream. but i care a lot about the case and i wanted the couple who wanted to adopt i think it was a boy to cuba to adopt their son and so i thought very hard and i had this discussion with this other woman that worked for the charge about whether it was going to get too personal. i certainly didn't talk about my personal life in the case but i thought very hard together with the judge to make sure that we got the majority opinion. >> you became a partner at the law firm in 1998. can you talk about with the culture was like a and what it's
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like now? >> guest: paul weiss, a beacon in this area has been my whole career. it's a place that was founded based on principles of diversity and openness. the first firm sounds crazy today. back then in 1998, there were very few people who felt comfortable in all aspects of their lives being out. you might be out as i was coming you might be up to your close colleagues at work but i wasn't out for example to my adversaries. i don't think i was out to judges. i know i wasn't out when i did
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the adoption case. and it was kind of this halfway in and halfway out kind of life where all the time you were having to evaluate should i tell this person or not this person how would he react and how would you react. what does it feel like and what is the courage to play in the case of? i'm still always coming out with her utility have a driver or dentist or hotel porter they are always making those decisions. it's one thing to be an out lesbian and it's another thing entirely serving the united states of america.
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it is premature out as much as you can be and obviously in my life right now it is a good thing. i have to tell you again sitting in the apartment back to 1991, i never thought that would happen. that is the course of my life would take. >> host: did you ever face pushback from clients that he worked with were judges as you were pursuing not just the doma case but other cases he handled over the years? >> the adoption case was different and it was a hardly fought case and the dissent in that case to be honest i don't think is the kind of dissent that a judge would write today and ira member when the drafts
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were being circulated there was a language in the dissent some of which is pretty harsh language if i ever recall. the marriage case that i argued in new york which we fast-forward to 2004 and again there were questions that were asked of me in the oral argument indicates i in the case i remember one about two sisters. and isn't the relationship the same as the relationship between a or couple, but i don't think that a judge was asked today. i just can't imagine any judge anywhere in the country asking that they are. and then today certainly there's been nothing. i brought the mississippi marriage case after and we didn't see a single protester. when we argued that case there were a lot of people outside the courthouse there wasn't a single protester so the rapidity of change it surprised me.
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>> as you mentioned in 20060 argued in the court of appeals and the marriage a quality case and you write in a book about how several weeks earlier your son was born and we talk about a difficult situation that you've encountered in the hospital. can you talk about that and how it informed your approach going into the court of appeals? just come by some of the newborn when i argued the case. he had just been born. and when jacob was born we thought it was incredible. we thought he was totally beautiful of course as every parent does. and his skin had this incredible apricot hue which we thought looked great but we didn't know that meant he had jaundice so they had to put in a centrally in texas care for infants for a few days under the light.
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if we came to the day that we take them how much we are ready to do at this point that went to the neck -- nicu and the nurse wouldn't get him give him to me and i said what are you talking about you have seen me here for days. they said you are not the parent. and my wife had had a c-section. and she was still pretty weak and bandaged and i said you're telling me i have to go get my wife and she has to come here with her walker to pick up jacob? that's crazy but that's what the nurse insisted on. and it was 2006 my son was born. so, even then i think we were pretty shocked. and i remember my wife wanted to make a big deal about it and i said i just want to get us home. you are weak and we are all tired with just get jacob holm.
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>> host: the court of appeals ruled against your clients. what were some lessons learned when from working with edith to bring the case of? >> host: there was good reason to do it and it was to bring cases with multiple couples. so the case had to express the kind of diversity. they had a couple, old couple etc. and again i understand why that was done. you do want the court to see that this is a diverse community the facts of their lives kind of fade into the background. it was the fight between dependence on fox news and msnbc and in the case of people in
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their lives. it became distracted and that was a bad thing i think because the way to win this case and this issue is to persuade judges , americans and ultimately the supreme court justices that the lives and relationships are the same as the lives and relationships everyone else has and so one of the reasons i thought that her case had the idea that we could focus only on one couple that we could help their story in a way that i thought would persuade the courts that the marriage is the same as the marriage that i had with my wife or husband and i can understand that and they deserve the same dignity that we have in our family. >> host: you write that you were talking about taking her case and there were groups that didn't think that was the right time to take a case like edith and were actively advocating against lawsuits. why was that? >> guest: very much in mind
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what happened was with respect to the california litigation that had been brought by david boys. when they filed the case in federal court, a lot of the gay groups issued a tax on the filing of the case. and as the voyeur for the 82-year-old woman i was very concerned that those same kinds of attacks would have been to eddie spouse. i started to look back at the original e-mails and a lot of our original e-mails were about making sure she did get these attacks should be willing and able to handle that. it turns out that it didn't happen. but there were certainly a lot of doubters in the movement. not only whether it was the right time to challenge doma that i think more significantly whether this was the right person to do so. and so ... edie have to pay the
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estate tax and that it was over $350,000 i think kind of raised the hackles of certain people in the the people in the community and they were concerned that ed would be seen as a rich white lady and no one would get it and no one would care. i do not share that view. first of all, i represent wealthy people all the time and frankly compared to the people i normally represent key was nowhere near that level. in fact when i first met her and she said will you take my well you take my case and how much will it cost me and i did this to her and she said really i would like to pay and i said trust me you cannot afford our fees. so so that parts didn't bother me at second she actually isn't that a wealthy. most wealthy. most of the taxes due to the appreciation in the apartment in the village. it has increased greatly for
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couple hundred thousand and that was the reason of the driver behind the tax. and third of all it seems to me the attack is a perfect case because essentially doma was an attack on being gay. americans don't like to pay taxes. we certainly don't like to pay on the just taxes. i'm watching the series with my kids now it's all about the fact country started and i thought every american would get in there that's what it means to pay a huge tax simply because you are gay so those are the many reasons plus the republican party doesn't even like the estate tax so i thought i was good. >> host: you learned of the obama administration and the justice department are no longer going to defend doma in court. what did that mean for you personally come and what did
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that mean practically for the case going forward? >> guest: there was little in the case that surprised me. i know the judges in the southern district pretty well. and when we brought the case i was confident that we would win both in the southern district district of the second circuit. i didn't think that it would be our case and i wasn't really thinking about that at the time. the one part of the case that just totally sounded me was when the doj switched their position and it was a great story because he filed the case and they always get a certain amount of time to respond and i got a call from the trial level attorney basically saying we need 30 days. we are thinking about what to do in the case and we need time to decide. i will be honest with you i didn't see me for. i thought she was stalling for time and first of all i don't
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get to be a plaintiff all that much. and number two, she had a lot of health issues in the case so we wanted to make sure that when the case was over not only was she still alive but healthy enough to enjoy it. and i said to the government, forget it. then i got a callback from the kind of mid-level attorney and the mid-level attorney so we would like an extension and i said the same thing, we will see you in court and then i got a call from tony west who at the time is the second was the second or third in command and basically said what is this i hear you've turned it down down two lawyers asking for an extension. i said what she isn't getting any younger we want to move the case. he said i'm telling you the president and the attorney general and i need to talk and discuss what we are going to do in this case. we have to figure out what
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position we are going to take. are you telling me that you're not going to give the president of the united states and extensions are even then that even then i had to say what they think about it and i will call you back. i went next door to my partner's office and i told him the story and he said are you crazy of course you will get an extension, which i did. >> host: and you ended by saying that you were going to pray. >> guest: at the end of the call i said i just want you to know while you and the president and the attorney general are deliberating on this i just want you to know i will be praying for you and i have to tell you i was a pretty sarcastic tone of voice when i said that and that's the end of the the causeway got an e-mail. it was spring break i remember. i knew immediately what that meant. it's not the kind of e-mail the lawyers get everyday. we have a call in on the call she explained they had gone
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through the factors of the heightened scrutiny and they decided that they couldn't conclude that they shouldn't octane some type of heightened scrutiny and that it was unconstitutional. during the call i have to tell you i think i cried more than any other time in the case. i had tears streaming down my face. i was just completely shocked that they have done this. at the end of the call he said remembered the remember that thing you said to me about praying for me i just want you to know sometimes prayer works. that was the end of the call. it was an extraordinary thing to happen. it was an extraordinarily gray just think the president to do and i think that we lived especially being here related to society where we assume everything that happens in dc isn't based on principles but it's based on some other reason that doesn't have to do with the
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merits. sometimes politicians and elected officials do things because they are the right thing to do. and i am convinced in my gut that is what happened here and i'm very reluctant to compare directly to the african american civil rights movement. no gay civil rights lawyer i know of has had to live with the dalia spread of lynching or violence of a thurgood marshall and his colleagues did. i don't think they are directly comparable. however i don't think it's a coincidence that three people that the three people that made the decision about not defending doma -- i think they sat down and said he can't write a brief but says it's okay to discriminate. >> host: and at that point your adversary changed in the case. >> guest: by adversary changed. when the government essentially bowed out, there needed to be someone who would defend the law and we want we wanted someone to defend. we didn't -- we needed someone
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on the other side. so the house republican committee also noticed the bipartisan legal advisory group which is something i'm very proud of because there wasn't really bipartisan. we have the republican majority vote and they hired preeminent supreme court litigator certainly of my generation. >> host: eventually either fix it up to this banquet and at that point you never argued the case in the supreme court. why did he want to do that? >> guest: i had thought in my head at a time. there the time. there was a lot of pressure on me not to argue the case. when i start practicing law there is no such thing, but there is today and there's a lot of pressure i should give the case to be argued by someone who is a member of the supreme court
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and after thinking about it a while i had a call from a professor at stanford who i brought him on the case the minute we knew we had a chance to get to the supreme court and i said to her i want you to know i'm thinking i am thinking about whether or not to argue this case. and i want you to know that if i don't argue the case and that if ed agrees with my recognition because ultimately it will be her call him i'm going to recommend that you argue the case. pam had done seven or nine or so dozen at point. pam immediately said to me you should argue the case. they are not that hard to learn and you know this case and there's absolutely no reason you shouldn't argue with. so that was a conversation that i will never forget for the rest of my life.
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i don't know how many other people, how many other lawyers out there would have said the same thing, but it's a great tribute to her but she said what she said. >> host: what's different about preparing to argue the same court and arguing screen court and arguing in the supreme court as opposed to other federal appeals courts? >> guest: a lot of this is a tactic of time. in most appellate courts particularly in cases this big you get at least 30 minutes come sometimes 45 minutes to argue. often it goes past the time and it's no big deal. the fifth circuit in a marriage case was over an hour. i think that was pretty much true in the windsor case when we argued in the second circuit. because you have the luxury of time, the argument very often tends to be a very high level. there's a lot of discussion about the precedence and impact of the precedence and the
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statute and technical discussions of the law and often it is a great intellectual interchange but particularly if you have a great judge to have a discussion to treasure persuade him or her why you should win the case. the supreme court particularly in a big case like this it doesn't work that way so you have very little time. to help the justices on your side of kind of argue with the justices on the other side are doing which is very different. he much their minds or come up to become a death that you are going to persuade someone at the argument. so what is this kind of almost diplomacy that you're doing when you are trying to kind of help the judges on one side and justices on the other side and hope for justice on the the justice on the other and there's almost no time for kind of
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high-level intellectual discussion. a lot of it is about political issues. i don't think -- if you go back and look at the transcript, not a single case was raised in the windsor arguments other than by any. i wasn't asked a question by the charges without any of the cases, so it is a different animal. >> host: you talk about as part of the preparation going through the court where you stand before a panel of lawyers pretending to be justices and you pretend that you are in the moment and you write how the first one didn't go so well. talk about that. one lawyer told you afterwards that he needed to be gay to win the case and that didn't go over well. and talk about how the chords and form your preparation. >> guest: you go through co. you go through the process and i don't know, maybe a root canal without ossetia would be more
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painful but i'm not sure that there is too much more that can be so the way that it works you sit in front of a panel of lawyers that are judges. they asked questions usually forgot 45 minutes which is a long time, sometimes even an hour and then you spend another hour and a half where they critique every single word that you've said so it's not the most fun experience you can have as a lawyer. we did a bunch of those in the organic and the first one as you said is not the greatest. so we walked into the room and there were a lot of people there. there were a lot of people in the audience watching and a lot of the discussion tended to be kind of a theoretical issues that were very unlikely to come up in the second second quarter to make. i remember one academic on the panel said it sent your argument really about training backs aren't you saying people should have equal access to marriage that americans have to utilities
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and i know that isn't in your brief, but shouldn't you make that argument in the court backs i had been litigating and all of my instincts told me that wasn't a good idea. then another argument that cannot does this idea that we should be gay indicates that the way to win was not to emphasize the dd and her love affair with to emphasize a whole bunch of other scenarios not involving gay people under which the supreme court had overturned statutes on the grounds of rationality that they thought were helpful. if you look at some of those precedence for example one was about hippies. i didn't think the supreme court was really all that interesting in hearing the case because in the early '80s it helped that
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you can have a statute that reflected the way they did with each other. i didn't see that as a direct and how she. i thought the direct analogy as i said before was that we need to persuade the justices that they have the same marriage is anyone else as long as they were, there really was no good reason for why it was constitutional or unconstitutional. and if it was the case we needed to kind of related case and make the case as gay as possible. >> host: at that point the supreme court was getting ready to hear the case of proposition eight, the california referendum that had banned same-sex marriage and you write the brief in that case began with a nod and you write that was not the approach that he wanted to take in the case. he wanted to differentiate the case from proposition eight. talk about that. >> guest: it was one of the greatest if not the greatest
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decision ever. it was a revolution in the american legal thought about equal protection and about the rights of african-americans in the country. and it was an enormous historic leap forward in the circuit court jurisdiction. we wanted the court not to see windsor that way. now again the one main difference in the cases, they were arguing that everyone in the country can be gay person in the country should have the right to marry. all these were arguing is when we started the case that i our people to marry in those states was wrong and unconstitutional tuesday even though new york or massachusetts you allow people to marry we are going to treat those as invalid. it was a much narrower release that we were seeking in a much more moderate case and we wanted to really differentiate the case
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we were worried the court case wasn't able to do all the way in proposition eight and we wanted to see it as kind of easy moderate next step for them to take. >> host: you write that when it was argued it was that lawyers have to hire the standards to make sure that they couldn't get into the court and get the seat and recently the supreme court said we are not going to allow that. not for lawyers at least read what was your reaction to that? >> guest: there is no question that it's the right decision. they have been very vocal on this and days they sent me an e-mail saying look at my victory which it was. there was no question that people who wait for the arguments should have to do with the give it the same as everyone else and shouldn't be people that have a lot more resources can hire someone to do it for them. i'm very glad i thought people do that anymore.
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>> at your focus in the case you write on justice kennedy. the other justices that you wrote out kennedy's greatest hits as you were preparing your focus was on him. how come? >> in a cases like this you were putting aside the area. we had four votes on the side we have probably four votes against us. that is true in any case when it comes to raise justice kennedy really holds the unique position because i don't think that any other justice ever in american history has so dominated an area like civil rights of a justice kennedy has. we are at every major decision about the equal rights, and we knew that we had to persuade him. we knew that we had no chance of
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winning the case if we could persuade him and so one of the things i did to prepare -- the justices if you listen to the argument that they will say to each other as justice kennedy said or asked justice kennedy has earlier written when he knew i couldn't say that. it looked a little too obvious for me to say that but one of the things we did instead is we took at that point the prior decisions and at that point it towards it was grown her and laura did we put them on kind of a cheap sheet piece of paper and i walked through for a couple of days kind of saying them out loud. i'm sure that i will catch a crazy person doing that for the reason i did it if i wanted to have his language on the tip of my tongue so that during the argument if i needed to use it i could say it without saying as justice kennedy said. that was a point in the argument i used the language and every
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one of the justices knew exactly what i was doing and i could see it in their eyes when i said, but i still haven't collected on that bet. >> host: you write as he begins his arguments, arguments, quote, by the feelings turned to my old state of panic and you even after he's actually rewrite your opening statement on the spot. would have happened? >> guest: we actually talked a lot as you can imagine during this process. he had attended the practice session with them so i had a good idea of what the position was on the various points. it probably would have said no we haven't exchanged the opening. and when he got up to speak, the highlight of the opening argument was this issue that was probably the best example of how
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the defense of marriage act was an insult to the divinity of gay americans. after "don't ask, don't tell" had been repealed in congress, understandably this wasn't a surprise there were a lot of gay service members who were married because of the people in the military tend to be more conservative and they tend to want to get married. so you have quite a large number of gay married soldiers. after doma even though they were married what happens is when one of them was injured critically or was even killed in the line of duty, the military could not notified her spouse of what had happened because the spouse and federal law wasn't a spouse and we have been hearing a lot of reports that as far as the pentagon was concerned, this was horrible. they felt they were agonized by
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it and they felt it completely violated the concept of military honor and respect and a sacrifice and it was just driving them crazy. so my opening was very much keeping to that. when he got up to his credit he used the same example and i realized i couldn't copy what he said so i had to come up with something very quickly in the courtroom. >> host: you explained there were multiple ways you could win in the court but not all of them would be a good thing necessarily for future cases have sought to vindicate the rights of gay and lesbian. >> there was a possibility here that this court could say the case only applied to easy to come -- edie but they were not really giving the broad opinion is that the impact and a whole bunch of other areas.
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it impacted 1100 federal statutes and the case only involved one of the texas statute and there was a concern on our part but they would say okay there is no reason to pay the tax. but when it comes to health care or child support or social security maybe there is a reason and we will wait to hear the case. there is a principle the court sometimes should do things like that and we were very concerned they would do that here. the language of justice kennedy's opinion could hardly be broad. it speaks in this beautiful deep very broad language of the principle that gay people have the same dignity as everyone else. something like 11 times in the opinion. and once you get to that point and once you've said that he had the same dignity as everyone else then it's really all over
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because you can't come up with a good reason for why it's okay to treat them differently under the law. >> host: justice leah calls the majority opinion written by justice kennedy legalistic and then he predicts that the ruling would lead to nationwide marriage equality and as you note in the book he was exactly right. describe what happened next in the federal district court after the ruling. >> guest: he's the first in the war ends in 2003 that he they believed marriage equality and then again both times he was right. i thought it would have been adjusted to a just didn't think that would happen so quickly. in the two years following windsor idea was 70 some chords in almost every state of the country decided that given this very broad principle that people had the equal dignity but there
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was no basis to design the quality of marriage and we started getting case after case after case in the states but really no one would have expected a. i don't have to tell you this. they are doing it because really given the holding there was no result that they could reach and so we saw this remarkable unanimity. he has never seen a groundswell like that in american legal history all going towards marriage equality at all leading ultimately to the decision. spin it as the cases were decided it was clear that this was headed to the courts there
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was a product of what was coming out of the courts to be the critics charged that this was inappropriate for the courts to step in. it would be left to the state legislatures and the in the democratic process to make these decisions. what was your response to that? >> guest: with the constitution means for the bill of rights and here it's the 14th amendment in that issue is that sometimes legislatures passed laws that violate the rights of the minority groups and sometimes they cannot be justified given the constitutional guarantees. and of course legislatures passed laws all the time in the vast majority because constitutional muster. usefulness of the african-american civil rights and again in the gay civil rights there are laws that are passed into the only reason for passing the law is to treat to treat a certain group differently than anyone else.
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about gay marriage isn't really about marriage. they really were not about any other kind of policy. the word about separating gay people and making sure that under the law they were different. and that is what he we call the constitutional no-no in my world. >> host: the legal term. >> guest: exactly the legislature shouldn't be in the business of doing that. and particularly after windsor it was clear to the court that is what they were based on and that is the time and response ability for the courts to step in. >> host: are they prepared to take up the case you are involved in drafting the people's bodies. what was that? >> guest: hilary rosen who has been engaged now for many years had this great idea which was let's use kind of the benefits of the modern technology and the internet to do an amicus brief
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that has never been done before. so we did this brief called the people's brief and to allow people to sign onto the brief we basically posted on the internet and anyone could read it and say that they had read it and agreed it's over 250,000 signatures for people in all 50 states. not surprisingly we got huge numbers of signatures where they were kind of ongoing marriage equality battles and in texas there broke up of people that signed on i will recall and what we have to do before we had to get a certain number of copies so it was like 50 boxes when you look at one set of the brief it was about this high on the table >> host: and again it was justice kennedy that wrote the majority opinion. what was your reaction to reading that at that moment? >> guest: on the one hand i
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expected. we saw the tidal wave of positions into the principle i agree that the logic and the language really required this result but i am a cautious lawyer and gay person and i think in my heart of hearts i was still pretty nervous and when it came down i was in san francisco, good place to be and when it came down it was very early i was in my hotel room and i saw the language and i was just overjoyed on a phone call. and it wasn't quite as dramatic but it was pretty dramatic there was a lot of screaming and crying on the call. >> host: a few federal and state judges cited the decision as it came down and in some cases that doesn't involve same-sex couples. there was one in california where the court rejected the
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challenge to the style of his fiancée petition and the court cited they described what he marriage plus marriage plus purses and engagement. how far of the reach from the legal perspective do you see this decision and doma as well having down the road? >> guest: i hadn't really thought about it in terms of the cases to engagement but in terms of the rights of gay people, i said in august of 2013 i gave a speech in dc which i predicted as the battle of normandy equivalent in the back of continued taking the rest of europe there was no question that we would do so. i think that it is the capitulation legally speaking of the forces in world war ii.
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today that's what you're why you're seeing decision after decision. they are the last on the four on the books that treat gay people different. what is again when private employers and private businesses want to treat people differently dare i think that the answer is partially not legal and what i mean by that is i don't think that there's a lot of appetite out of this country. we are not going to sell you ice cream cones because you have two fathers or you have two mothers. businesses want to make money.
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they have no interest in doing that and that's why you are going to see it from time to time and there's these little one offs i don't think it's going to be a groundswell. i think that we need to clean it up and they've taken the position that discriminating against gay people is the same as gender discrimination and has already prohibited under title vii. but that would have to get litigated and hopefully at some point they would be able to get a statute for congress that basically says that. >> host: before the court ruled there was the alabama supreme court that refused to issue marriage licenses going against the federal court order requiring that and as you mentioned at the kentucky clerk after the decision came down also refused to issue marriage licenses. what do you make of that and does that reflect on the court,
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does that reflect on how people view the legal system? >> guest: andy warhol said everyone is going to get there five minutes of fame. i think that is what this is about. ken davis is about ken davis and loves the attention she's getting all of a sudden she gets invited to these rallies and get these awards and is on tv everyday. i think that is what has grabbed her. every federal judge -- and the same thing in alabama every federal judge that has looked at these issues agrees there is no merit. of the rulings in the supreme court of the supreme court are the rulings govern us a primacy clause and they governed a state. so again while you are going to see these the reality is that's
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happening. they are getting married in kentucky where ken davis is the clerk so the reality on the ground is that equality is happening but particularly in this kind of instant culture that we live in i think that you're going to see people that have attempted to become the next kim davis but i think it is just a lot of noise and smoke and in the end -- >> host: thank you so much for being here. >> guest: thank you so much. it's a pleasure. the booktv program in which the authors of the latest nonfiction books are interviewed. watch past programs online at
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