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CNN Live Event/Special

Marriage Warriors: Showdown at the Supreme Court

Aired March 30, 2013 - 19:30   ET



UNIDENTIFIED MALE: There is nothing civil about a man marrying another man.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST (voice-over): It has been called the last civil rights fight of a generation.

TED OLSON, ATTORNEY: These people are suffering from discrimination every moment of every day.

BORGER: Should same-sex couples be allowed to marry?

SANDY STIER, PLAINTIFF: I am a 50-year-old American woman and I can't marry the person I want to marry.

BORGER: Is it a constitutional right?

DAVID BOIES, ATTORNEY: There are certain rights that are so fundamental to everybody that we say no majority can take it away.

BORGER: Or a right reserved for a man and woman?

AUSTIN NIMOCKS, ATTORNEY: There is no fundamental right to same- sex marriage in the U.S. constitution.

BORGER: Former political adversaries once on opposite sides of history now joining forces.

ROB REINER, DIRECTOR: To get the two guys who oppose each on Bush v. Gore to team up and saying this is a nonpartisan issue.

BORGER (on camera): Literally you are preparing for the case in here.

(voice-over): Now the Supreme Court will decide the case.

OLSON: Marriage is fundamental right -

BORGER: That could change a nation.

It's a script that could have been written in Hollywood. The opening scene, lunch at the famous Polo Lounge at the Beverly Hills Hotel. At the table, a Hollywood fixture. Director and actor, Rob Reiner. REINER: This was after Proposition 8 went the wrong way for us.

BORGER: It was November 2008. Barack Obama had just won the White House.

UNIDENTIFIED MALE: There is nothing civil about a man marrying another man.

BORGER: But voters approved Proposition 8, taking away the right for gays and lesbians to marry in California.

UNIDENTIFIED MALE: California has made it very clear.

REINER: We were sitting there and licking the wounds and saying what do we do now? And you know, serendipitously a friend of my wife's came by the table and she says I think you would be very interested to find out that you might find an ally in Ted Olsen on your issue.

BORGER: That's the Ted Olson, the conservative legal icon.

BORGER (on camera): That stunned you, right?

REINER: Yes, it more than stunned me. It stunned me, but I said if this is true, this is the home run of all times.

I mean the idea that Ted Olson, this arch conservative, the solicitor general for George Bush who has argued Bush v Gore and basically put me in bed for a couple of days I was so depressed after Bush v Gore was interested and in gay rights, I thought let's check it out.

BORGER: But didn't you have doubts about Ted Olson?

REINER: You know, they say that politics make strange bedfellows. Well, you don't have a stranger bedfellow than me and Ted Olson.

CHAD GRIFFIN, GAY RIGHTS ACTIVIST: I was skeptical. Absolutely.

BORGER (voice-over): Gay rights activist Chad Griffin was at lunch with Reiner that day and volunteered to make that first call to Olson to check him out.

GRIFFIN: Much to my surprise it was an issue that he clearly thought a lot about, and the moment I hung up the phone I realized that there was a chance that I was talking to someone that overnight could become the most important significant advocate for marriage equality that this movement has ever seen.

BORGER (on camera): Were you kind of shocked to get that phone call?

OLSON: No, I wouldn't say I was shocked. I was a bit intrigued. I was disappointed in my fellow citizens where California had adopted a amendment that would prohibit gays and lesbians from getting married. What does that tell them? They are not equal. They are different. They are less respected. That's harmful. BORGER: So Olson and Griffin met on Olson's terms.

(on camera): One of the first things you see when you walk through the door is a picture of Ronald Reagan.

OLSON: Yes, Ronald Reagan. He was a wonderful man to know and to work for. And of course, President Bush is here, too.

GRIFFIN: I knew I was in foreign territory. I was in the office just enough to know how Republican of a world that Ted Olson comes from, and my world could not be more different than that.

BORGER (voice-over): But they were on the same page on marriage, and so weeks later, the deal was sealed here at Reiner's home in California.

(on camera): Was this kind of like an out of body experience for you. I mean, here you are sitting and talking to Ted Olson whom you probably regarded as -

REINER: Yes, the enemy.

OLSON: Rob Reiner said he was the devil.

BORGER (voice-over): Now Olson is seen as the devil by some in his own party, like legal scholar Ed Whalen.

ED WHALEN, LEGAL SCHOLAR: I felt he was betraying the constitutional principles that he took an oath to stand for.

BORGER: Some critics wonder whether there is something more personal to this crusade.

(on camera): People have said, particularly conservatives who were sort of stunned that you took this case at first, were saying "Oh, he must have somebody in his family who is gay."

OLSON: I am a little distressed by that because it's basically saying well you must have a motive other than principle. For me, it's the principle of equality and looking people in the eye and not having, harboring this feeling that you are somehow different or you're not as good as us.

BORGER (voice-over): And once Olson made the decision, it became an emotional journey.

OLSON: Shortly after we filed this case, a young woman in the law firm came up to me and she said "I am a lesbian, I am with my partner, we have children, and what you are doing for us means so much to me, and to my partner, and to our children. I just can't thank you enough." And she began to dissolve in tears and so did I. We wound up embracing. That has happened to me again and again and again.

BORGER: Then Olson made a move right out of central casting. He wanted a co-counsel and picked of all people, the liberal David Boyce, his former Supreme Court rival, the man he beat in Bush v Gore, deciding the 2011 elections. The director loved it.

REINER: And when he suggested that we get David Boyce to be his co-counsel, and I thought, wow, to get the guys who opposed each other on the Bush v Gore to team up, was saying that this is an nonpartisan issues.

BORGER: Not to mention irresistible public relations.

BOIES: I think that in the very beginning there was a curiosity factor, which I think actually served as well. And one of the things that out kind of novelty, odd couple status did was attracted people to begin to think about the issue in ways that they had not thought about it before.

UNIDENTIFIED MALE: It has amplified our voice. It has made more people listen to us.

BORGER: Coming up -

BOIES: Gay and lesbian citizens are entitled to the same dignity as other citizens.

UNIDENTIFIED MALE: A lot of Americans believe in marriage between one man and one woman.

BORGER: A battle that ends up at the nation's highest court.

BOIES: This is defining the civil rights issue of this time.


BORGER: It was the historic case that decided the presidency and divided the nation. The 2000 race between Governor Bush and Vice President Gore. There was a recount. A constitutional challenge. And Ted Olson and David Boies fought it out at the Supreme Court, and that was then but this is now.

(on camera): If anybody had told me in the year 2000 after Bush versus Gore that I would be sitting with you both today on the same side of a case about gay marriage, I would have said are you nuts?

OLSON: Well, in the first place, I think we both came to the conclusion that we could probably be unbeatable if we were on the same side. But if we were on the opposite side, one of us would lose.

BOIES: Neither one of us likes to lose, so.

BORGER (voice-over): With the election over they became friends, really good friends, even though they still square off in court as recently as last month.

BOIES: And it was really great -

BORGER (on camera): Who won?

BOIES: The judge will tell us. But I will tell you one thing, and that's I like it a lot better than when he is on my side than when he is against me.

BORGER (voice-over): They are teaming up in what they both say is the biggest case of their distinguished careers.

BOIES: I think this is the defining civil rights issue of this time.

OLSON: It wasn't a Republican issues or a democratic or a conservative or a liberal issue, it was an American issue that we could go to the courts and to the American public and say "Listen to us, this is about human rights and human dignity and respect for all of our citizens."

BORGER: Citizens like Sandy Stier and Kris Perry.

SANDY STIER, PLAINTIFF: I am a 50-year-old American woman and I can't marry the person I want to marry.

BORGER: They have been together for 13 years. They are raising four boys as a family, and they want to get married for a very simple reason.

KRIS PERRY, PLAINTIFF: It's about love.

BORGER: And love says, Perry, is not what their domestic partnership is about.

PERRY: Domestic partnerships have nothing to do with love. They are not about love. They are about health benefits. Title. Protections and hospitals. We are domestic partners in the city we live in, the county we live in and the state we live in. We have three and not one of them - can I tell you a date at which it was executed nor could I tell you for how long we have had them, but I can tell you this, the day I get married, I will remember that day and I will celebrate that day every year with Sandy.

BORGER (on camera): Not being allowed to marry, how has that impacted you every single day of your life?

STIER: It's the most important decision one makes in her adult life, and not being allowed to do so makes me feel like society thinks there is something kind of wrong with us. If there weren't something wrong, then why wouldn't we be allowed to get married?

BORGER (voice-over): And that was the question Olson and Boies wanted answered. They took on Perry and Stier and another couple, Paul (INAUDIBLE) and Jeff Cirillo (ph) as clients. They won in California against Proposition 8, and now the case is where they always suspected it would end up, at the Supreme Court.

Their argument is simple. Same-sex marriage is a constitutional right, period. No matter how many states have voted to ban it.

BOIES: The reason we have the Constitution, the reason we have adult rights, there are certain rights that are so fundamental to everybody that we say no majority can take it away. BORGER: The attorneys arguing the other side read the constitution differently.

AUSTIN NIMOCKS, ATTORNEY: There is no fundamental right to same- sex marriage in the U.S. constitution.

BORGER: Austin Nimocks is part of the legal team defending Proposition 8.

NIMOCKS: Would you say that Proposition 8 discrminates you would have to say that marriage laws and marriage from the very beginning of civilization only existed to discriminate against gays and lesbians, and we know that's not the case.

BORGER: He says it's not a matter of discrimination but rather of definition and that marriage is defined between a man and woman for one main reason.

NIMOCKS: We have marriage laws because we have children. And marriage laws attach men and women to each other and legally to the children that they bring forth.

BORGER (on camera): So do you think the Olson boys' case is pure overreach?

NIMOCKS: Ultimately the sovereignty in this country belongs in the hands of their people and their democratically-elected representatives and that's where we need to keep this debate.

BORGER (voice-over): That debate in the states has resulted in a seismic shift in support of same-sex marriage and some argue the court needs to just stay out of the way.

JONATHAN RAUCH, COLUMNIST: My real worry is that we, gay people, gay Americans, lose the opportunity we are now in to finish persuading the public that same-sex marriage makes sense not only as a right, but as a social policy.

Jonathan Rauch is a columnist who supports same-sex marriage and believes that a sweeping ruling in favor of Olson boys could backfire.

RAUCH: Then the issue is how do we feel about the Supreme Court ramming that down our throats.

Rights, durable solid and lasting rights do not come from courts, they come from public consensus. They come from the fact that your fellow Americans believe in this right and will help you enforce it and seek it.

BORGER (on camera): I remember when you two first took this case, and you came under a lot of criticism even within the gay community saying this was moving too quickly, and there wasn't any reason, this shouldn't just go through the state process. Essentially, why rush this?

OLSON: Part of our response to that is these people are suffering from discrimination every moment of every day, and if you tell them, yes, you are a victim of discrimination and it's unfair and we believe it's unconstitutional, but why don't you live with it for a few more years? This is not what you do in this country.

BORGER (voice-over): Coming up, an exclusive look. The high stakes and high pressure of going before the nation's highest court.

OLSON: The burden is enormous when it involves the way they live, the way they live their life.


UNIDENTIFIED MALE: One man! One woman!

BORGER: A decision that could change a nation. An answer from the country's highest court on same-sex marriage.

UNIDENTIFIED MALE: One man, one woman!

BORGER: A case years in the making.

NIMOCKS: There's no fundamental right to same-sex marriage in the U.S. constitution.

PERRY: this idea that a wrong can be righted is a moment I've been waiting for, for a long time.

OLSON: This is the most important piece of work professionally I could every hope have ever had a chance to do.

BORGER: To prepare for this monumental case, Ted Olson spends countless hours in his private war room.

(on camera): I notice you have a legal pad here. So you're old fashioned about this.

OLSON: My computer is the number two pencil and the yellow pad.

BORGER: And these are your notes as you're reading other briefs?

OLSON: Yes. Now, each of the cases that we might be relying on is in these binders, along with the briefs.

BORGER: So you're reading all those briefs.

OLSON: I'm trying to read as much as I can. But you can't read everything.

BORGER (voice-over): This case is Olson's 60th before the Supreme Court. And with 44 high court wins under his belt, he's the one facing the nine justices.

UNIDENTIFIED MALE: Mr. Olson, you have 20 minutes.

OLSON: Thank you, Mr. Chief Justice and may I please the court. BORGER: Olson sharpens his arguments in a mock Supreme court, with elite lawyers playing the parts of justices. We got an exclusive look inside.

OLSON: Proposition 8 took away from gay and lesbian Californians the right to be married.

In 30 minutes, you can have 50 to 60 questions asked by the justices.

UNIDENTIFIED MALE: So it's a matter that it was a provision of the constitution rather than just a statute?

OLSON: Isn't that something that the legislature should be doing, not us?

UNIDENTIFIED MALE: Mr. Olson, do you defend the Ninth Circuit's rationale?

OLSON: They may interrupt themselves.

UNIDENTIFIED MALE: We also have focused on the ability to procreate.

OLSON: They will interrupt you.

UNIDENTIFIED MALE: But wasn't the court talking about marriage between the opposite sex?

OLSON: Individuals.

UNIDENTIFIED MALE: You don't seriously dispute that gay marriage was unheard of?

OLSON: You must answer their questions but you must bring the case back to the prism through which you want them to see the light.

Marriage between persons of the same sex and marriage between persons of opposite sex is identical.

You better be good, because if they're asking questions you don't answer properly, what's going to happen to you in the Supreme Court?

BOIES: You can't sit up there when you're on your feet and asked a question, you can't go diving into the notebooks or go consult somebody else. There's no lifelines.

BORGER (on camera): No net.

BOIES: There's no net and no lifeline.



UNIDENTIFIED FEMALE: Now! BORGER (voice-over): March 26. Four years after the battle first began. 13 years after Sandy Stier and Kris Perry wanted to get married. Olson and boys are finally at the steps of the Supreme Court.

OLSON: Just walking into the Supreme Court and standing before the justices, for a lawyer there's nothing like it.

UNIDENTIFIED MALE: We'll hear arguments this morning case 12144, Hollingsworth versus Perry. Mr. Olson?

OLSON: Thank you, Mr. Chief Justice. May it please the court -

BORGER: At first, the justices seem cautious, questioning whether now is the right time and if the Supreme Court is the right place to make a decision on same-sex marriage. Starting with Justice Alito.

JUSTICE ALITO: Same-sex marriage is very new. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the internet?

BORGER: Then came the zinger from Justice Scalia.

JUSTICE SCALIA: I'm curious, when it did become unconstitutional to exclude homosexual couples from marriage?

OLSON: May I answer this in a form of a rhetorical question? When did it become unconstitutional to prohibit intra-racial marriages.

SCALIA: Don't give me a question to my question.

BORGER: And Justice Kagan challenges the opposing argument that marriage is about having children.

JUSTICE KAGAN: Suppose the state said, because we think that the focus of marriage really should be on procreation, we're not going to give marriage licenses anymore to any couple where both people are over the age of 55, would that be constitutional?

OLSON: Thank you, counsel. The case is submitted.

BORGER: In just 90 minutes, it was all over.

BOIES: It's now in the hands of the Supreme Court. It's been a long journey here for the last three and a half years.

BORGER: Now it's up to the nine justices to make a decision.

OLSON: The court has several ways to decide this case from a very broad sweeping conclusion with respect to the rights of our citizens in this country, to a narrower ruling that would be limited basically to California.

BORGER: Opposing attorney Austin Nimocks agrees the court was conflicted and the outcome uncertain.

(on camera): Can you tell at all from the questions that you were getting about the way in which the justices were thinking about this case?

NIMOCKS: Well, you can tell a lot about how they're thinking about it. What you can't tell is how they may decide the case.

BORGER (voice-over): It will be months until the court announces a decision.

OLSON: This could be a step along the way or it could be the end of the line in terms of vindicating the rights of gay and lesbian citizens in this country.

We've put a lot of faith in this country, in the Supreme Court, we always have, and we will accept decisions from the Supreme Court. Maybe like Bush versus Gore, that some people thought was the wrong decision.

BORGER (on camera): He thought it was the wrong decision.

OLSON: He still thinks it was the wrong decision. I haven't been able to win him over on that one.

BOIES: We're working on it.