it has 15 years of taking a beating financially, morally, spirit ually, politically and to can keep doing best some little take advantage of think there are a lot that want to and if we don't heal ourselves abraham lincoln is right it will have to be national suicide the outside hitting us warrior so divided is national suicide. >> host: "it is about islam" his latest book. booktv on c-span2. . .

really realistic for women at that line. the lifetime to have a commitment so she called up her fiancé and got reengaged just after graduating college and got married. needless to say say the marriage didn't last very long. only a matter of months she said she would go out with her

husband on a saturday night and if she saw two women together she would get jealous so she said to her husband look, you deserve to be loved the way you deserve to be loved 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. to get to gay the bigger problem wasn't being speegle because anybody that was middle-class at that point was totally in the closet you could live your life any other way. the bigger issue she assumes that she's going to grow up and marry a guy. so she had been good at math and high school and was going to enter the graduate program at nyu. she became one of the first-ever program to become programmers in the united states and got a job

working on the computer which was the atomic energy commission's computer which was housed in the entire state block at nyu. to work on the computer she needed what was called the queue security clearance and one day she day she's at her apartment on the upper west side indicates a letter from the fbi and it says we need to talk about the security clearance. we don't think you need a lawyer yet but can you come talk to us and she busted her fight because she was assured they were going to ask her. she was assured they were onto her. and she was determined she would imply and not only would she not have a job working on the computer but that would be the better career. it was illegal at that time that any job whatsoever in the federal government even for a company that had contracts in with the federal government if he were gay so she did a little

research on her own and she was right about it. under the new dark ball for a woman as opposed to a gay man she showed up at the fbi interview and in high heels and a silly dress hoping to throw the fbi off their game. fortunately for her and the rest of us they didn't care at all about whether she was a lesbian, only the ties to the party because they were in the teacher's union. those facts are in incredible story already of what life was like back then. she's in new york and lonely and one night she says you have to take me where the lesbian are. i'm lonely. she goes to a restaurant in greenwich village and their she needs her. and at least from eb's perspective it was love at first

sight. not so much for speed levin that she spent the next two years kind of pursuing her to find out what is she not attached, not with someone, maybe we can get together. and after couple of years, they did. and they were driving out to the countryside one weekend and she said to her what if he were you were to wear a diamond engagement ring at work, without having to ask at this point she was at ibm. she said i can't do that i'm sure that you see pictures and she was a looker and still is and she said if i show up with a big diamond ring everyone will see who is the lucky guy and i can't answer that question. so she said will you marry me and started an engagement that lasted for 40 years. what is incredible about the visit was 1967.

two years before the stonewall riots so in 1967 that would even occur to get engaged that they they would have the self-esteem and the courage to even think those thoughts are incredible and then what happened for the next four years because thia was diagnosed with a terrible form of ms about 15 or so years into the relationship she became paralyzed over time and make sure she said had the diagnosis happened to both of them. there is no question that is the way they live their lives. sadly, thia got a bad diagnosis and 2007 that she didn't want to live and even though she had been reluctant to go to lead new york to get married to go to canada because it is hard for someone that is a quadriplegic to travel even though she had been left and woke up the next

morning after getting this terrible diagnosis she said used to want to get married and she said i do. they went with four women and men to toronto and got married in the hell didn't so they could yield the wheelchair into the airport hotel. this was a couple who really, really wanted to get married. and sadly a year and a half later she died and that is what started the case because then she got hit with a huge estate tax bill because of the so-called defense of marriage act, which basically said that even though the marriage was completely valid in the state of new york as far as the federal government was concerned, they were not married. so when she inherited all the property it was as if she had inherited it from a stranger. >> as much as the book is about the story indicates it is also a personal story and i was hoping you could talk about how you decided how much of your self to include in the book. >> guest: when we first

composed of the book that isn't something i had in mind and i was going to write a book that explained the legal strategy and how we did what we did. and as a certificate plan it went through the outline of the chapter and i realized i couldn't tell that story without telling my own and i think the reason is -- i remember growing appearing from gloria steinem don't necessarily have have to be believe that about everything but when it comes to gay writes, there is no person in the co- question it is personal and i couldn't explain this incredibly dramatic change that occurred in the society with justice olea calling it a seachange without describing the changes in my own life and so probably the most interesting story i tell about how when i first met her it wasn't the first time that i had heard her name and i'm happy to tell you that the >> host: i would love to hear that personal connection. >> guest: she died in 2009, and unfortunately we have some

mutual friends. we have had been turned down by civil rights groups and soak we have a mutual friend and when i got a phone call i knew exactly who it was. i never met her before but i knew exactly who she was and that reason i knew exactly who she was not that she was a celebrity back then but about 20 years before, i had been in my 30 years of law school and i was definite and even even though i had anxiety and concern probably in high school and certainly in college and in law school i waited until the bitter end of my third year to have the gumption and courage to do anything about it and it just so happened that shortly thereafter my parents would come to visit me at new york city and it was very bad planning on my part at planning on my part because i scheduled to visit on gay pride weekend. they were coming to visit me at my apartment and have to find their way through the parade and by the time they got to the

apartment on the upper west side they were in high form and they start talking about how they couldn't understand what are people so proud about. what's with all the rainbow flags. my college roommates mother is an elected official. what is she doing in the parade etc.. i finally said to my parents, you have to stop. they persisted and i said again you have to stop and then my mom said to me why are you gay and i said yes. and i had a little one-room apartment with my mom kind of walked over to the wall and started to bang her head against the wall. when i tell the story told a story i'm not criticizing my mom let me be clear. my mom has apologized for this thousands of times by now. she fully embraces me and couldn't be more proud of me. she embraces our family and exiles about this every two seconds every chance she gets. like so many americans by mom

has evolved on this issue and that's a good thing but after that happened to me as we can imagine i was pretty low and depressed and i went around asking people -- i knew i said i need a psychologist that is good on gay issues and into the name i kept getting was her spouse. so i saw steel oven as a patient only twice. i was clerking in boston and new york for the summer in the same living room where he met eddie spouse 20 years later. she saw patients in her living room and here's the most incredible part of it during those sessions she talked about edie. i think that it's pretty not typical for a psychologist or psychiatrist to talk to their patients about their own life. looking back on it i think that speak 11 was convinced the only way she would be able to persuade me, pretty stubborn at the time, that i would have any chance of having a lifelong love

affair were committed relationship with family was a she told me about her own relationship, and i've remembered her telling me that she was a brilliant mathematician, she studied at nyu command i remember all these things. in the sessions she does amazing. an amazing sense of and really sets my mind at ease and then 20 years later in 2009 i walked into her apartment and even though i knew exactly where i was going i saw her and i saw the apartment and was like coming back to the scene of an accident. everything came back to me as i and i said you have to give me a minute and then i explained to her life. >> host: you describe a situation when you were in the new york court of appeals in the mid-1990s when he played a part you play the part of the ruling that made it possible for gay and lesbian to adopt their partner's child and you talk about a fellow clerk that was as closeted as i was at that point had criticized you for making the case personal.

how do you view that exchange now looking back? >> guest: is one of the others that i think is a symptom of how different the world was back then. so this was 1996. i was a kid to be honest with you clerking for the chief judge and we had what was a very big deal case at the time which was essentially whether people could adopt new york and it was very controversial and was high-stakes and actually when the case was first floated out, we were in dissent. we were not going to win the case and they held it over the summer and we one in the fall. and it was intense. there was a lot of work being done and lobbying being done to get the other vote. you need for votes on the court of appeals. and even though i have to tell you back then i didn't think there was a chance that i would never ever have a kid frankly. i didn't think there is a chance, certainly no chance that i would get married. that was a pipe dream that i

cared cared about the case and i wanted the couple who wanted to adopt to be able to adopt their son. so i thought very hard and i had a discussion with this other woman that worked for the judge about whether it was making his personal. i certainly didn't talk about my personal life in the case but i certainly thought very hard together with the judge to make sure we got the majority opinion. >> host: you became a partner at the law firm in 1998. can you talk about the culture was like at that point but just paul but what it's like now? >> guest: paul weiss, truly a beacon in this area, certainly my whole career there had been openly gay partners. it is a place that was kind of founded based on the principles of diversity and openness.

the first firm sounds crazy today to suggest that partners together so that was kind of the foundational firm. so it was never an issue but certainly influenced by the rest of society. and back then in 1998 there were very few people who thought comfortable in all aspects of their life. you might be out as i was to your friends. you might be out of to your close colleagues at work that i wasn't up to my adversaries. i know i wasn't out to the judge when i did get the adoption case. and it was kind of this pathway in and halfway out the kind of life where all the time you were having to evaluate should i tell this person or this person, how would he react and how would she react. flash forward to today's openly filed the case, we have a phone call with a bunch of pc all you

donors. what does it feel like i'm how do you have the courage to be the plaintiff in a case come and she said you know, you're always coming out. i have been an out lesbian for years thanks to always coming out with her usually cabdriver or dentist or hotel porter you always try making those decisions. but now it's one thing to be an out lesbian and another to bb out lesbian who happens to be suing the united states of america. now i'm the lawyer that happens to represent the united states of america and as a result i'm pretty much as out as you can be. and obviously, in my eyes right now it is only a good thing. i can't think of any negative things that i'll frankly in my life that comes from the golden

lesbian i am. sitting in thia's apartment back speaker department back in 1991 i never thought i would have been. if you have predicted to me that that is the course of my life today. >> host: did you ever faced pushback from clients where judges as you were pursuing not just the case but other cases you handled over the years? >> guest: remarkably little. the case in 1996 was different. it was a hard-fought case. and the dissent in that case to be honest i don't think is a kind of dissent and judge judge would write today and i know when the drafts were being circulated some of it got taken out which is pretty harsh language as i recall. the marriage case that i argued in new york if we fast forward to 2004 again there were questions that were asked of me in the case i remember one of two sisters and is in the

relationship between the two sisters the same as the relationship between a gay or lesbian couple and i don't think the judge would ask today i can't imagine any judge anywhere asking the question today. and today certainly during and since windsor there's been nothing. i brought the mississippi marriage case after windsor and we were like mississippi and we didn't see a single protester. when we argued a case there were a lot of people on our site outside side outside of the courthouse there wasn't a single protester. so, the rapidity of change, the speed of the paradigm shift i would say is something that's even surprising. >> host: as you mentioned in 2006 you argued in the new york court of court of appeals for marriage equality case and you write in the book about how several weeks earlier your son jacob was born and you talk about a situation that we've encountered in the hospital. can you talk about that and how it informs your approach going into the court of appeals?

>> guest: probably have to put a lot more stress on me. my son was a newborn when i argued at the marriage case of new york. he had just been born and when jacob was born we thought it was incredible. he was totally beautiful of course like every parent does in his skin had this incredible apricot hue which looked great but we didn't know which meant he had jaundice. so we had to put it essentially in the intensive care for infants for a few days under the light to get rid of the jaundice. and every day we were there for about three days i would go in and out to see him and bring him to my wife back and forth. i have a hospital bracelet and i was treated like any other parent. then it came to the day that we were finally ready to take him home which we were ready to do at that point and i went to the intensive care unit and i said we are went to take him home and the nurse wouldn't give him to me and i said what are you talking about coming you have seen me for days.

she said while you're not a parent. and my wife had had a c-section. and she was still pretty weak and bandaged. i said are you talking me i have to get give 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. this was 2006 my son was born. so even then we were pretty shocked by it and i render my wife wanted to make a big deal about it and i said i just want to get us home. we will deal with it if we have to later. it's. two later. ultimately the court of appeals ruled against the client. but for some of the lessons learned in that case as you were going into work and bring the case of? >> the standard strategy that the civil rights lawyers have been using in the cases and there was good reason to do it have been to bring cases with multiple couples. for almost any case had to

express the cases that have african american couple, male or couple etc.. and again, i understand why that was done. you do what the courts want the courts to see that this is diverse. i think what people didn't realize at the time is if you have four, five, six couples in the case, the facts of the lives kind of fade into the background because no one can focus on six couples lives and the cases started to look more like a fight between dependence, fox news and msnbc than a case about real people in their lives and their lives became abstracted and that was a bad thing i think because the way to indicate and the way to win this issue is to persuade judges, americans and ultimately the supreme court justices that the lives and relationship but gay have is the same as the lives and relationship of everyone else.

one of the reasons i got reasons i got the case was so ideal is we could focus on one couple and tell their story in the way that i thought was persuade the court the marriage that they have had is the same as the marriage i had to my wife or husband and i can understand that and they deserve the same dignity that we have in our family. >> host: you write as you were talking about taking the case, there were groups that didn't think it was the right time to take a case like edith and if that were actively advocating against bringing the lawsuit. why is that? >> guest: i had very much in mind why i started the case was what had happened with respect to the california litigation, the proposition eight case that had been brought and when they filed the case in federal court, a lot of the groups issued a press release attacking the filing indicates and as the lawyer for defendant 80 some

82-year-old woman i was very concerned that those same kinds of attacks would happen and i had actually forgotten about this and i went back and looked at the original a lot of our original e-mails with about kind of prepping her to make sure that if she did get these attacks she would be willing and able to handle them. but it turns out it didn't happen. but there were certainly a lot of doubters i think in the movement not but only if it was the right thing to challenge but more significantly whether she was the right person to do so and so the fact that edie have to pay the tax bill to the irs and that it was over $350,000 i think kind of raised the hackles of certain people in the community if they were concerned that she would be seen as a rich white lady and no one would get it and no one would care. i didn't share that view.

for me, first of all i represent wealthy people all the time and frankly compared to people i normally represent, edie was nowhere near that level. in fact, when i first met her and she said will you take my case and i said how much will it cost me invited this she said really i would like to pay and i said to trust me you cannot afford our fee. that part of it didn't bother me. but she also isn't a wealthy. most of the state tax was due to appreciation in the apartment in the village like many people in new york she bought an apartment in the early '80s, increased for a couple hundred thousand and increased greatly in value and that was the reason the driver behind the act. and then third it seemed to me that the tax was was perfect case because it was a tax on being gay. she paid taxes for being a lesbian and it was a big tax. americans don't like to pay

taxes. we certainly don't like to pay just taxes. i'm watching the pbs case liberty kids with my son and it's about the fact our country started the fight about the taxes and i thought every american would get in there got what it means to have to pay a huge tax simply because you are gay. plus they don't like the tax. >> host: once you started working on the case the word that the obama administration and the justice department are no longer going to defend doma in court. what did that mean for you personally and what did that mean practically for the case going forward? >> guest: there was little indication i indication of a company i don't need to sound conceited but there was little that surprised me. i know the judges in the southern district pretty welcome to southern district of new york. i know the judges in the second circuit and when we we brought the case i was confident he

would wind up we would win both in the southern district into the second circuit. i knew they would get to the supreme court i didn't know that it would be our case and i wasn't thinking about that at the time. the one part of the case that just totally astounded me is when they switched their position and it's a great story because we find out the case and the government always gets a certain amount of time to respond. i got a call from the trial level attorney basically saying we need 30 days. we are thinking about what what to do in the case and we need time to decide. to be honest with you i didn't be deeper. i thought she was stalling for time and i first of all don't get to be a plaintiff all that much and number two, she had a lot of serious health issues during the case, so i was greedy and wanted to make sure that when the case was over but only was she still a life that alive that she was healthy enough to enjoy it so that was waiting on me and i said forget it, no extension. then i got a call back from the

mid-level attorney and police we said the same thing. forget about it. then i got a call from tony west through at the time was the third in command and he basically said what is this i hear that you have turned down the two lawyers asking for an extension and i said she's not getting any younger, she's not healthy we want to move the case. and look, i'm telling you that the president and the attorney general and i need to talk and discuss what we are going to do in this case it with position and we need time the time to do that. are you telling me you're not going to give the president of the united states and extensions were even then i had to say nothing think about it and i will cause 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: then you ended by saying you were going to pray

for you >> guest: it shows how cynical we all are today. 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 why he will be praying for you and i have to tell you i was in a pretty sarcastic tone of voice and that was the end of the call so i get a e-mail it was spring break i remember we were on vacation saying tony would like to talk to you and immediately it's not the kind of e-mail that they get every day. and we had a call and on the call he explained he and the president had gone through the factors for heightened scrutiny and they decided they couldn't conclude that the law that treats people differently shouldn't contain a form of heightened scrutiny and therefore that it was unconstitutional. during the call i have to tell you i think i cried more on the call than any other time in the case grade i had tears streaming

down my face i was completely shocked that they have done had done this and at the end of the cold tony said to me you remember that thing you said to me about praying for me and the president i just want you to know sometimes prayer works at the end of the call. it was an extraordinary thing to happen and extraordinarily courageous for the president to do. i think that we live especially here in dc in a society where we assume everything that happens in dc isn't based on principle but it's based on some other reason that doesn't have to do with the merit. sometimes politicians and elected officials do things because they are the right thing to do and i am convinced in my gut that's what happened here and i don't think -- i'm very reluctant to compare directly the civil rights movement to the african civil rights movement. no civil rights lawyers i know a have to live with the dalia sight of lynching or violence by

thurgood marshall and his colleagues did so i don't think they are directly comparable however i don't think it's a coincidence that the three people who made the decision of not defending doma had to have been three black guys. >> host: and at that point your adversary changed. >> guest: when the government essentially bowed out there needed to be someone that would defend this and so we wanted someone to defend it. we didn't want to have -- we needed someone on the other side of the house republican committee are known as the bipartisan legal advisory group which i renamed because it wasn't really bipartisan. they have more votes and so they decided to defend the statute and they hired the preeminent thinkers litigator in my

generation. >> host: eventually the case makes it to the same court. why did you want to do that? >> guest: i had a complicated range of emotions and thoughts in my head at the time. there was a lot of pressure on me not to argue the case. there was no such thing as the bar but there is today and there was a lot of pressure that i should give the case to be argued by someone that is a member of the supreme court. after thinking about it for a while i called up pam who's a professor at stanford who i brought in on the case into the into the minute he knew we had a chance to get into the supreme court and i said to her i want you to know i'm thinking about whether or not to argue this case and i want you to note know

that if i don't argue the case and that if she agrees with labor committee should because ultimately it will be her call. there were arguments may be a dozen at that point and immediately she said to me there's things about arguing in the supreme court that are different. you will have to learn them. they are not that hard to learn and you know this case it is absolutely no reason why you should deny them. so that was a conversation that i will never forget for the rest of my life. i don't know how many other lawyers out there would have said the same thing but it's a great tribute to her that she said what she said. >> host: what's different about preparing to argue the supreme court as opposed to other federal appeals courts? >> guest: a lot of it is a

fact of time. you get 30 minutes, 45 minutes to argue. often it goes past the time and it's no big deal. that was pretty much true in the case. because you have the luxury of time pr give it often tends to be at a very high level. there is precedence and statute and very technical discussions of the law and it's a great kind of interchange. you have an intellectual discussion and try to persuade him or her why you should win the case.

supreme court particularly in a case like this it doesn't work that way. that you have very little time. your job as an advocate is to help the justices on your side kind of argue with the justices on the other side pretty much their minds are made up when they come up. it's very rare that you are going to persuade someone at an argument. so it's really this kind of almost diplomacy that you're doing where you are trying to help the judges on one side, the justices on the other and help the justice on the other hand there's almost no time for the kind of high-level intellectual discussion. a lot of it is about political issues. i think if you go back and look at the transcripts, not a single case was raised in the arguments other than by me. to ask the questions on any of the cases it is a very different

animal. >> host: you talk about moot court claim before the panel of lawyers appearing to be justices and they can bury you with questions and you attended that you you are in a moment and you write how the first one didn't go so well. talk about that. one lawyer told afterwards that you needed to be gay in the case. talk about that and how backwards and for your preparation. >> guest: i think pepper would be an understatement. when you prepare for a case like this you go through the process and i don't know. maybe root canal without anesthesia would be more painful but i'm not sure there is much that could be said to be that it works in front of the panel of lawyers or judges they ask the question throughout 45 minutes sometimes even an hour and then you spend another hour and a half where they critique everything you say.

we did a bunch of those. we walked into the room with a lot of people there. there were other people in the audience watching. and i want that discussion tended to be about theoretical issues that were very unlikely to come up in this argument. so i never want academic on the panel said you know, is it your argument really about training blacks aren't you saying that people should have the same equal access to marriage that they have for utilities and i know that isn't in a brief but shouldn't you make that argument in the supreme court and it's the kind of thing that i can't argue the supreme court before but i've been litigating for a lot of years and every one told me that was really probably not a good idea to introduce the issue. and then another argument came up with this idea that we

shouldn't. the way to win wasn't in place her life with thia but empathize other scenarios not involving gay people and which the supreme court overturned the statute on the grounds of irrationality that they felt were hopeful. my view this case was about being gay. if you looked at some of the questions for example one was about hippies. i didn't think the supreme court was really all that interested in hearing that we should win the case because in the early '80s it held that that because of a statute that reflected the way that hippies look at each other. i didn't see that as a direct analogy. i saw the direct analogy as i said before that we need to persuade the justices that they had the same have the same marriage is anyone else as long as there was that, there was no good reason for why doma was

constitutional and we thought we needed to kind of pick the case has 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 gay marriage and you write a briefing in the case began with brown v. board of education and you write that wasn't the approach he wanted to take in your case you wanted to differentiate your case from proposition eight. talk about that. >> guest: brown v. board is one of the greatest if not the greatest supreme court decision ever. it was a revolution in american legal thought about equal protection and about the rights of african-americans in this country. and it was an enormous historic leap forward in supreme court jurisprudence. we wanted the court not to see windsor that way. now again the one difference is

the end of proposition case they were arguing everyone in the country every gay prison in the country should have the right to marry. when there was different. all we were arguing is then when we started the case, when i argued the case mind, when we won the case got 12 states that allow gay people to marry that in those states was wrong and unconstitutional for the government to say even though new york or massachusetts and allows people people to marry we are going to treat those as invalid. it is a much narrow were released but we were seeking in a much more moderate case and we wanted to really differentiate the case. we were worried the court wasn't ready to go all the way there and we wanted the court to see windsor as the sort of easy moderate next step. >> host: you write that when proposition eight was argued that lawyers have to hire line standards to meet sure they

could get into the court and get into the seats and recently the supreme court said we are not going to allow that not for lawyers at least. what was your reaction to that? >> guest: there is no question of the right decision. pam karl has been very vocal on this and she sent me an e-mail saying look at my huge victory which it was. there is no question that people who we visited arguments should do it the same as everyone else and it shouldn't be that people have more resources can hire someone to do it for them. i have to admit i've done that in the past but i'm glad i will not be able to do that anymore. >> host: or focus in the doma case you write was on justice kennedy, the other justices but you write kennedy's greatest hits as the were preparing past opinions you could quote from coming your focus was on him. how come? >> guest: in big cases like this even putting aside the gay writes area justice kennedy is

often a deciding vote and we were comfortable doing and that we had the goods on our side. we were comfortable doing and that we probably had four votes against us and therefore we knew we needed to justice kennedy's vote area that is true in any case but when it comes to gay writes, justice kennedy really holds a unique position because i don't think that any other justice ever in american history has so dominated an area mike gay supports the justice committee has. at this point now every major decision, romer, morgan's, and about equal rights of gay americans. we knew we had to persuade him and we had no chance of winning the case if we could persuade him so one of the things i did to prepare -- the justices if you listen to the argument arguments they will say to each other as justice kennedy said whereas earlier written we knew i couldn't see that. it looked at all to obvious for me to say that but one of the things we did instead is we took

at that point the great language from its prior decisions. at that point it was romer and lawrence and we put him on a kind of cheat sheet piece of paper and i walked through the streets of dc for a couple days i'm sure i look like a crazy person giving that i wanted to have his language on the tip of my tongue so that i could say it without saying as justice kennedy said. so we had have a bath whether i would succeed. i did come actually. there's a point of the argument i use the language times can blind on every single one of the justices they knew exactly what i was doing and i could see it in their eyes. this was her general speaks before you and you write as he begins his arguments my feelings turned to a mild state of panic

and you then had to essentially rewrite your opening statement on the spot. >> guest: this is why being a trial lawyer is a good thing. we talked to them a lot as you can imagine during this process. and they had attended the nude and we attended a practice session with them so i had a good idea. we had a good idea of the position at various points. but we had said no we haven't exchanged for opening so i didn't know what the solicitor general was going to say. and when he got up to speak, the highlight of the opening argument was this issue that was probably the best example i think of how the defense of marriage act was an insult to the divinity. what happened after tabasco tell -- "don't ask, don't tell," there were a lot of gay service members who were married because

after all they tend to be more conservative and they tend to want to get married. so you have quite a large number of gay married soldiers. and after doma come even though they were married first for the federal law they were not married. and so what happens is when it happens when one of the soldiers was injured critically or critically once been killed in the line of duty, the military couldn't notify their spouse of what had happened because the spouse under 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 it. they thought that it completely tightly to the concept of military honor and respect hit sacrifice and it was driving them crazy. my opening was very much keyed into that. i read a list i had to come up

with something very quickly in the courtroom. >> host: you've explained there were multiple ways you could win in the courts but not all of them would be a good thing necessary for the future cases that thought to indicate the rights of gay and lesbian. can you talk about that distinction? >> guest: there was a possibility that the supreme court could say that's the case only applied to edie which it did on its case. that she should get her tax money back to her check back that they were not really giving a broad opinion that talked about the impact of doma and other areas. if only impacted 11 federal statutes. the case only involved one, the tax statute and there was a concern on our part that they would co cater is no reason to pay this tax. but when it comes to health care or child support or social security, maybe there is a reason and we believe to hear that case later via there is a

principle that the courts sometimes should do things like that and we were very concerned that they would do that here. fortunately, we got the opposite. the language of the majority opinion of windsor could hardly be broad. it speaks in this beautiful very deep, very broad language about the principle that gay people have the same had the same dignity as everyone else and so something like 11 times in the opinion. and once you get to that point, once you've said that they have the same dignity as everyone else, then it's really all over but the shouting because you can't come up with a good reason for why it's okay to treat them differently under the law. >> host: justice scalia in his defense calls the majority opinion written by justice kennedy legalistic than he predicts the ruling will lead to nationwide marriage equality as you note in the book, he was exactly right. describe what happens next in

the federal district lower court after the doma ruling. >> guest: he's been right about this a couple times. first of the war and in 2003 that related to managed quality and then again that when there would lead to marriage equality and both times he was right. what happened to -- had this happened faster than i expected. i just didn't think it would happen so quickly. and here following windsor i think it was 70 some courts in almost every state of the country decided that given this very broad principle that people have equal dignity that there was really no basis to design a quality of marriage. so we started getting case after case after case and in the states that no one would have expected, utah was one of the first. oklahoma was one of the early ones. virginia, indiana where judge after judge had the same thing and you are a court reporter so i don't have to tell you this,

that it wasn't a popularity contest. judges do not act out of pure pressure. the lifetime tenure and they didn't do it because they want to be in with their colleagues i don't believe. they were doing it because given the holding there was no other results result they could reach. so we saw this remarkable unanimity. i think they tried to say he's never seen a groundswell like that in american legal history all going towards marriage equality at all leading ultimately to the decision. >> host: as the cases were decided it was clear that this was headed to the speaker was a product of what was coming out of the courts. the critics charged that this was inappropriate for the courts to step in and display data should be left to the legislatures of the democratic process to make these decisions. what was your response to hat? >> guest: we have the thing in the country called the constitution and what the

constitution means particularly the bill of rights adhere to the 14th amendment at issue or any of the amendments is that sometimes legislatures passed laws that violate the rights of minority groups. and sometimes those walls cannot be justified given the constitutional guarantees every american has. and of course legislature passes laws all the time in the vast majority they pass the constitutional muster. but every once in a while, you saw this with african-american civil rights and now civil rights there are laws laws the past that are passed where the only reason for passing the law is to treat a certain group differently than anyone else. for those about banning gay married it isn't really about marriage, it isn't about any other kind of policy reason. they would about separating gay people and under the law making sure they were different and that is what we call the constitutional no-no in my world.

>> host: the legal term. >> guest: the fancy legal term. they shouldn't be in the business of doing that and particularly after winter it was clear to the court that is what the statutes were based on and that this was the time and responsibility for the court. >> host: as the courts this year prepared to take up the gay marriage case, you were involved in drafting the people's briefing. what was that? >> guest: so hilary rosen who has been involved as an activist now for many years had this great idea which was its use to kind of benefits of modern technology and the internet and do an amicus brief that's never been done before. so we did this brief to allow people to sign on the basically posted on we basically posted on the internet and anyone could read it and say they agreed with it. they have to certify that they had read and agree with it and they could sign on. because i think it was over 250,000 signatures from people

in all 50 states not surprisingly huge number of signatures in states where they were kind of ongoing marriage and quality battles. in texas there were a lot of people that sign on i recall an event he had to deliver to the court we have have to get a certain number of copies so it was like 50 boxes when you look at the ones that it's about this high on the table. >> host: in december it was again justice kennedy wrote the majority opinion. what was your reaction to reading that at that moment? >> guest: on the one hand, i expected it. we saw this title wave of decisions. i believed the the principal the principle into the logic i agree that the logic and language of windsor required this result but i am a cautious lawyer and a gay person so in my heart of hearts i was still pretty nervous. and when it came down i was in

san francisco at that moment a good place to be. when it came down it was very early. i was in my hotel room and i saw the link which it was overjoyed. i was on a phone call he had a conference we had a conference call with the team of new york and it wasn't quite as dramatic on the windsor but was pretty dramatic there was a lot of screaming and crying on the call. >> host: a few federal and state judges have cited the decision since it came down. in some cases doesn't involve same-sex couples. there was one in california where the court rejected a challenge to the denial of his female fiancée's petition and the court cited to describe what marriage was versus an engagement. how far a reach from the legal perspective do you see this decision and doma as well having down the road? >> guest: i haven't really thought about it in terms of cases comparing marriages to an

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 was the equivalent of the battle of normandy and what we have to do is continue taking the rest of europe and there was no question that we would do so. i think that it was that capitulation legally speaking of the other side. there was no question in my mind that they read together and meaning that no government in this country to, state, federal, local can discriminate against gay people because they are gay. so, the era of the discrimination is now over. no question about that and that's why you see decision after decision and to have a piece on this right now to mississippi has the last ball on law on the books for treats people differently.

i normally don't like to predict if i'm going to win a case plenty confident we will win this case. the next question of course is going to be what does that mean with respect to the government is is one thing but does that mean when private employers and private businesses want to treat gay people differently. there i think the answer is partially not legally. what i mean by that is i don't think there's a lot that there's a lot of appetite out of this country for any business owner anywhere in the country to say to two young girls to walk and 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. they want to serve their customers. they have no interest in doing that. that's why you are going to see it from time to from time to time and thursdays one offs. i don't think it is going to be a groundswell. i think that we have one. we obviously need to clean it up for private employers. the doc has taken the position

that discriminated people is the same as gender discrimination it is 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 through congress that basically says that to >> host: before the court ruled, there was the alabama supreme court that refused to issue marriage licenses going against a federal court order requiring that and as you mentioned davis, the kentucky clerk she also refused to issue marriage licenses. what do you make of that and what does that reflect on the court, does that reflect on how people view the legal system? >> guest: i think it's a reflection on andy warhol. he said everybody is going to get there five minutes of fame can i forget the braves, whatever he said. and i think that's what this is about. i think that davis is about davis. i think that she loves the

attention that she's getting all of a sudden she gets invited to these rallies indicates these awards and is on tv every day. i think that is what has grabbed her. every federal judge who is doing the same thing with one more in alabama, every judge has looked at these issues and agrees that there is no merit for them, but the rulings of the supreme court or the rulings of the court and they govern the supremacy clause three of us again why i think you are going to see these one offs the reality is what's happening. gay couples are getting married in alabama today and getting married in the county in kentucky where davis is the clerk. so the reality on the ground is that the quality is happening but particularly in this kind of instant culture that we live in i think he was the you will see people that are attempting to

become the next ten to 25th but it's not going to be a lot. it will just be noise and smoke and in the end it won't mean much. >> host: take you so much for being here. >> guest: it's my pleasure. >> that was "after words," booktv program in which authors of the latest nonfiction books were interviewed. watch past "after words" programs online at booktv.org.

the way to win the case is cases to focus on the facts of her life and they really are remarkable. edie's wife told a panoramic story of how life has been or how life was for gay and lesbian people in this country so i thought that was important.

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