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>> so you have written an account of this in san francisco where two couples challenge the ban on same-sex marriage and so. >> and it is my great pleasure to be here today. i really got into this thinking about this after i read 136 days and if it is part of this this opinion looks different and the kind then what i saw before. and it was this thoughtfulness

that intrigued me. so i talked about it in 13 volumes. and so when i first started reading it i had the experience of falling into the transcript it's an experience that i think many readers have and i thought this was the conversation that the nation has been struggling to have come of this is the most comprehensive, the most rigorous and thoughtful discussion of the topic. but i think that we have ever had as a nation. i think that that is something that we will ever have is a nation. >> you know early on in the book, we talked about the virtues of civil trials.

and to some degree there are not many civil trials anymore. and the point is that a lot of people can go on tv with writing op-ed pieces but something really nice is on the witness stand, thinking they can tell the truth and then you get cross-examined. so can you tell us a little bit about the trial and why it was so important in this case? >> a few cases went through federal court and now that figure is less than 2% and less than 1%. and this is not part of the

prior form as it is in regards to same-sex marriage. what i have discovered is that again to your point, that the quality of looking at this is really different from anything that i have seen before. so if you think about this, you say one thing, but a smart person can always give it this and then the second that it's over the plans and the benefits are up in the air. to a lesser extent into a really interesting public forum. you know, and even sadly because of academic context we have an academic debate and [inaudible]

rather than a forum and a particular party. and when you get to that, that's a different one entirely. i started it without any set of this, they just know that of course the trial is going to be different. the because before you even get an expert report which lasted for seven hours in which they are rigorously cross-examined and also the contents of the report itself, and if you make it through that hurdle then there is on the stand which is again and this includes open-ended periods of time. you are under oath if you don't

tell the truth, you are isolated. so there's no lifeline on this and it's a very lonely place to live. and then you can be cross examined in that last bit is a important piece of it. and all of the other forms, this ends at some point. so this is cross examination, not only are you under oath and not only is a stenographer taking down everywhere the right, but the cross examiner can really ask you anything for as long as he or she would like. and so they can come back. so i think this is one of the great lawyers of every

generation. not always completely never completely, but to a greater extent of any other forum and it gets pushed to the surface. and it gives us a forum of rigor that is unavailable in any other forum. and if i may, i want to drive ace wrench. people say isn't much better for the democratic process for these conversations to happen in the public square, the referendum, the legislature. and i guess what i would say to that is that i want to drive a wedge to where the best conversation is happening which is clearly in my view which is the base of the end where the most legitimate conversations are happening which arguably is not a civil trial. so i was trying to do in the book was to take something that had occurred in the confines of

the courtroom and then write about it so that i could kind of air dried to it not only in this country but hopefully looking forward. so that they don't have to reinvent the wheel and obviously some things are not going to carry over because of cultural differences. but i do think the strength of his conversation allowed people to have baseline conversations that started more than they should be able to do. >> the trial is a good way to separate the truth and it's a good way to sort of clarify what is true and what is not. and they didn't really want a trial in the first instance.

and so we have these couples that are completely heroic individuals. and so at the time a same-sex male couple who are in their 30s at the time were being represented and they had represented them. the uniting of these two characters, because i really do feel like they have a national stature and was showing that this was not a partisan issue. and it's not a liberal issue, it's not a conservative issue. so they have this on the part of it. on the other side was charles

cooper also an extraordinarily able lawyer goes by chuck. and he represented the proponents of prop a which was a ballot initiative that was enacted by the people of california in 2000 name. >> he was representing them. and there was a moment in the early preliminary skirmishes in the courtroom where cooper says look we don't want this here. so neither of us really want this trial. and he said you're right, they don't want a trial either.

and so they said they would like to get what is known is a preliminary injunction. and the thing about this culinary injunction is that it's something short of the final judgment. but the thing about it is that you can appeal it immediately. so they were hoping to do this through the ninth circuit and of the united states supreme court. in a matter of six months to a year. and then we get in 2013 because of this trial and there are too many issues of fact that are contested here in order to really get to the bottom of those factual disputes and there

are numerous things [inaudible] in 1967 1978 case, where individuals are behind. and then finally in 1987 the case where they were suing for the right to marry. and so than the other side was saying, well no that fundamental only applies to heterosexual couples because the whole purpose of marriage is to secure this. so this is a fundamental aspect of marriage.

and then the plaintiff said well we don't think that that is true. and in fact when interracial couples were deadbeat dads are trying to be a part of the marriage they were not saying we want to be bad marriages what we want is marriage. so we are talking about this and it is a controversy about what the nature of the institution is. so let's get in. and then the second had to do with the quality and what level of scrutiny or views are going to be applied to the reasons that were offered by the proponent. and so under the equal protection clause of the constitution there are

different levels of scrutiny. jenner gets the second level of scrutiny and then sort of everything else. and so we've never determined at the supreme court level whether or not sexual orientation gets scrutiny. and what they have told us to look to that includes a history of discrimination whether or not the group has an equal capacity to contribute to society, whether the group is marked by an immutable characteristic and whether the group is politically powerless. and the factual disputes of that are part of it. and so those were also going to be set for trial. and then in the third were the reason for this state was offering mess. this is not passed which would be unconstitutional any kind of

thing against them we have really strong secular reason for wanting to bar same-sex couples are getting married, that includes things like providing the optimal child-rearing scenario for children, which we believe is them being reared by their biological mother and father and number two is that we want to prevent heterosexual marriage from being institutionalized. so that same-sex couples are permitted to get married. and so one individual said to chuck cooper, what evidence do you have on the issue about this. and chuck cooper said that we believe that the marriage rate has gone down in the netherlands since 2001.

and i think walker cry whaley said what is the evidence to that. this is an imperialist entity you are making to the court and not a theoretical statement. and he said i will come and with a presentation on madden at that point he said okay this needs to be part of this and so all three of those what is the nature of marriage, what is the nature of gay people and do they deserve scrutiny based on characteristics. and finally do they offer a justification that is not religious and to justify this on same-sex marriage. and so all three of those contain facts and one in the law is known as genuine dispute over material facts. such that the case would mean you have to go to trial.

and there was enough factual conflicts that they needed to go to trial. >> i have known ted olson and chuck cooper, they were reagan administration lawyers nice guys very gracious people. both on the opposite sides of the case. but they are a classic washington supreme court lawyer. in making a legal argument in san francisco coming to this supreme court and so these legal arguments going on 20 years was not enthused about this case. >> we have the individuals [inaudible] i give david an enormous amount

of credit for what he did, clarifying this. but the trial itself was small and large to the movement. not only were many of the witnesses the product of the decades of litigation but they have talked about this also with gay-rights movements lawyers, and you are absolutely right. they're going back decades with movement lawyers like the aclu like this all of these thought it was too soon so they had built this careful strategy that was going state-by-state until they had gotten a critical amount of this before they filed

in federal court and then had a case that was susceptible to being brought to the supreme court level. so if we go state-by-state, even if they are litigating in state court so long as they are only bring this under the state constitution because they are the ultimate arbiters of state law. so any good or harm that kind of thing it would be contained within the boundaries of the state. and so what these movement lawyers are doing is to adopt this strategy and they are saying that what they wanted was you know, 10 states with same-sex marriage 10 states where the civil unions were part of this 10 states with some form of relationship

recognition. so that was a kind of guideline, definitely more than a guideline, but that was a guideline for what they were going to be prepared to go to the supreme court for her, knowing full well that it was totally endorsed that it was too far ahead of public opinion. and so what we see in many of these things. >> is at the same time it is just watching the outlines. so by the time that was decided in 1967, 34 states had talked about it in the supreme court was just watching it and they did not have it yet.

and there are 13 states -- what the scenario of the court doesn't want is the roe versus wade type of situation, changing those laws with major social issues and that is when the court gets a backlash and you get this constant pushback that hasn't been resolved to this day. so the movement for looking at this landscape, it's really hard to believe that. and they have 37 states that have same-sex marriage. and only four states had same-sex marriage.

and so there's a lot of insight in regard to this. but just to be clear there's a lot of infighting on the other side as well. and that includes making more radical arguments then cougar than his team wanted to make an argument that were based on negative for trailers. >> there are so many fascinating elements of this case. reading back over the history, i was struck by the same thing, the gay-rights lawyers in 2000 eight at 2009, i think they thought, to be blunt about it if they get this case to the supreme court too soon we could lose. and it's a bad thing to get it up so quickly. and ted olson and david wanted to move quickly.

i think they were more confident in the outset. but then judge walker he slowed things down. and it wasn't just a hop skip and jump up to the supreme court. not only airing the issues as you said, that sort of allowing them to talk about the facts of the matter and it slowed things down a little bit didn't it? >> that is absolutely right. by having this in a much more stately pace. and it they went to the supreme court as quickly as possible and so to put a finer point on it i think what the movement lawyers were worried about is that the

supreme court would it be ready yet for same-sex marriage and for the prospect this is something that they very rarely do on this social issue like this, that they would render this decision and it would be very difficult to get that reversed. and for example i was talking about this earlier, struck this down before. but you know he is overruling this and it was decided in 1986 and it was perfectly fine for some states and perfectly constitutional for them to do that. and it took 17 years for the movement lawyer to overrule that by the supreme court. and i once asked one of the movement lawyers [inaudible]

and many other individuals. but i once asked whether or not the lawyers were overly cautious because they had gotten burned. and i think that they thought that they would win it. and they lost by one vote and went down the middle. and it was really our thing for the majority and i think that we were being burned in that way. and so this is really kind of the ultimate part of politics. and so when they render a bad decision like 17 years as a

relatively short timeframe for them to overrule a major decision like this, if you look at how long it took around to overrule, it was on the order of 58. and so we really could have seemed a couple of generations go by without an announcement from the supreme court which hopefully we will get in june. >> you mentioned the little about the history of this case. and so i started doing this job, it never dawned on me that for the supreme court in 1954 to say in the strongest possible terms that racial segregation is unconstitutional. and yet justice has not been one of such of interracial marriage. by the time they did in 1967 it

was almost a non-issue. there were only a dozen or so states that continue to enforce this law, but it's an interesting thing to see how abuse and social issues change, what could be seen as too soon and abrupt, 10 years later it seems like it's a matter of common sense and everyone says that everyone is alive and talks about it and it has been remarkable in the change of public views in sentiment. just go back a couple of years there was a few states that seem to be on the front here. just a few years later three quarters of the country and it's just a few holdout states. >> as you said i thought that there were really two big questions here. what is marriage all about. and how should the log you gays and lesbians. let's talk about what the questions were what is

marriage, who should be part of it what is the purpose of marriage as you said they made this argument that is now being voiced in the supreme court that marriage is about biology and responsible procreation. can you talk about that argument and why they made it davemac. >> yes the argument is that marriage is about a heterosexual couple in responsible procreation and taking responsibility for their biological austrian. what they are focusing on is the unbreakable gap between a same-sex couple. and that is one biological gap that is an idea that heterosexual couples have. where as no same-sex couple can procreate internal to the union.

and so what they found out is that marriage exists in an institution in order to find those two individuals together because the individuals are capable of bringing new life into the world. and without marriage it's too easy for them to split up. and we want the kind of social glue that binds him to each other and binds them to their children. so they have this kind of vision of marriage against marriage as a simple emotional commitment between two adults. and so the plaintiffs on the other hand saw it quite differently. and so they set a couple things in response to that. one is to say that marriage has many purposes other than binding parents to their biological children.

on the very first day, she was the first expert witness after the four plaintiffs testified. and i think they do did that on purpose because what they wanted to do was to say what is marriage. and so this notion of marriage was laid out, saying that it's a much more stable institution and what than what you might think. we have happily dismiss marriage we've had many different traditions of marriage in the world. and so lots not decentralize marriage as having been one thing everywhere and always. but even in this country, i feel like everyone is talking about this. the desire to protect children is one part of it, but marriage is also about creating a

household. if you think about it, it creates a legal institution that operates as a buffer and between the individual and the state. both sides get something out of this creation of that intermediate buffering institution of the family. the individual get something out of it because they can create these intimate and emotional bonds that garner protection and respect from the state. so the think about testimonial privileges were an individual doesn't have to testify against this way against themselves. people say you can always just do this with all the benefits of marriage and that is not in fact a case. because insofar as the state is involved you can make a mistake with this, you cannot enter into a contract in this way.

so from this perspective is a great benefit in having the household because the household provides a fallback mechanism for individuals when they get into trouble. and so if an individual becomes disabled that person is going to lean on the other person in the marriage rather than going to the stage. so then the first line of defense, and it's only after that it would benefit them. and so there is a great benefit in having this intermediate structure between the individuals and the state. and so there are lots of other reasons for procreation reasons outside of that that we would have this area and and the other is to say let's be really careful here in characterizing couples as inherently part of this.

and many couples are not raising children. in the last marriage performed as between a 7-year-old and an 8-year-old, could i not have married them because of the purpose of procreation. and they said no it's not about that. and so to the point where you start making that kind of argument that there would be an

octogenarian spouse that you'd want to keep inside the marriage. and second of all even if you focus on procreation, a lot of them don't procreate. >> there are married couples who adopt children. and there are opposite sexed couples and same-sex couples. and so i don't think one of them, most important things that change the public's view on the gay marriage question is if you

went back 20 years and asked people about this, they would talk about love and commitment and raising children. and now there's something like a quarter million children in this country being raised by the same-sex couples. and so why should they not have an event of marriage that would be good for them and good for the children and why exclude them. and so how do they deal with that. and they asked individuals why did you get married and they would say love and commitment and they wouldn't even bring this up in the first place.

and they would answer in the marriage equality movement. and so they wouldn't see that they were capable of loving in that way. and similarly they had an analogous situation in regards to children. and so [inaudible]

and we will get this emboldened and so they are seen as potential recruiters of them in this lifestyle. and that was repeated over and over again with the company. and so protect them sounds nicer than save our children. so it was much less inflammatory. and so this may have been in the background and what happens in

this trial in the wake of the trial [inaudible] and in a very short period of time [inaudible] and he said that i have now evolved and i'm all for a same-sex marriage. so if you read and watch that, he repeatedly alludes to those that are raising kids and they say that they are raising them

with such loving care and i wonder if people who are on the other side of this issue understand that these parents are just as responsible as heterosexual parents. and then there's justice kennedy that picks up this idea. [inaudible] how do you respond to that end they gave responses.

and that is part of the legislative process. he doesn't think that's a bad argument, he doesn't have a counterargument. and the argument is truly persuasive. >> you said early on to the legal context. is that when there is a claim of discrimination or whatever the state has to at least say that we have rational basis for this law. we draw the distinction between some of our citizens and some others are dead and you at least have to have a rational basis and there is some legitimate reason. and they have really struggled to say what is the reason for excluding and this includes.

>> this is one of the things that i think is flowing so beautifully. again, going back to the context . there are various individuals, including those in anthropology.

and that this is a direct result of gay marriage. so the idea is that gay marriage will hurt a straight marriage. and this came up during trial. and there was not a lot counterintuitive and so you see marriage for heterosexual couples go down because they feel like marriage is somehow less valuable.

>> during the trial is chuck cooper says they are making a presentation on the opening statements. and so he made that promise to the court. and the only demographer that has talked about that and they called to testify on the side of that. and so [inaudible] the amherst economist are testifying about this notion of the institutionalization.

and he shows that the way marriage has declined in a uniform way eight years prior to any years past 2001. and what they have said is to say that you know, what is really important is that rather whether it has considered that. and it's helping rather than hurting. and she said if he took that redline in 2001 out and you show that no one in the courtroom would be able to tell you when same-sex couples stop the right to marry.

and so through a series of expansions, that wasn't the only one, that went on for hours. and at the same point it was made over and over again. and you can't mix any kind of powerful point between the introduction of same-sex marriage in that being defined. some jurisdictions have talked about it and the divorce rate goes down in the marriage rate goes up. and so i really feel like he just cleaned out the gutter. and there are various things that were alluded to kind of put to the trial test. and they were unable to talk

about it on the stand. so i think that it is in a highly contextual term to say ultimately what cooper had to say was that if you change the definition of this as part of it it's hard to believe that it won't have a negative effect. and so it was very conjectural. and this is an argument that the court has never accepted and that is not something to get over. >> you know, if you look at

divorce rates and rates of children being born. they have gone way up in the united states from the 1970s on. and of course, most of them have done the institute was nation of marriage.

and so one of the things and that is something that we are talking about. and so that was a read exchange that was accelerated. and so i think it is a really important point which is to say that just because that what you really have to look at is whether there is an acceleration >> i think sometimes they are joking or serious. and there are so many same-sex

couples who are taking on all that responsibility of marriage, and it's actually a wonderful thing. and it's making people think again why marriage is so important. and whether it's somehow hurt or changed the institution of marriage. >> another part of this i think is interesting the gays and lesbians. and i think one important point that you made is to hold his

point or is it really like the phrase that used to be used. and he has argued that the government should discriminate for that reason. >> i think that this is extraordinarily well giving them space. and i think that this was as far as i could follow [inaudible]

i think that the human dimension will drop out and it's going to be part of this. and it can be incredibly born for the same reason. sometimes you have to be when it comes to being rigorous. so i am not into what is called lay witnesses. and the lay witnesses were there in order to testify in a more individual human way. and there are people that actually have experiences with it. and there is this young man who is beside himself who is the colorado police department detective, he testified when he was growing up that his mother told him that she would rather have had an abortion then have

had a gay child. and this was after they discovered this. and if they are supposed to extinguish their homosexuality and that's inextinguishable inexcusable then the only way to do it is to emancipate themselves from his parents and we have this position with the

police department. and we testified this and there wasn't a dry eye because of the testimony that was so harrowing. [inaudible] and it's like they are beating their head against a brick wall. what is fascinating is that i think most of us assimilate this and we have that voice in the back of our heads and we are trying to make a decision. we have to be careful about making sure that because it is

so moving that his story doesn't take us up for it. and that we understand that this is representative. and he was an expert witness with a professor, who is coming in to show that 92% of individuals in various studies and so there's expert testimony that continues.

and so [inaudible] and it's much more part of telling the story not on having an emotional response, when someone showed him statistics about homelessness, he was left out to see that number. and so what this individual did instead was to offer that and there was not only an expert talking about it but there was an individual witness who is

testifying and that is a way that made it come to life in a kind of narrative way within the confines. >> we have a couple of minutes left. ..