Venerable PBS talk show host Bill Moyers interviewed Boies and Olson on his Feb. 26 show. Watch the video (49 minutes) here. The transcript and related links are also available on the site. One of the most interesting links is MarriageTrial.com. According to Moyers, the district court would not let the proceedings be filmed, so two Los Angeles filmmakers decided to reenact the trial on their website, with professional actors, using the trial transcripts as their script. So far they’ve covered four of the 12 days of testimony.

The Moyers interview contains many quote-worthy passages. I chose this one because it’s a clever argument that I haven’t heard before. Boldface emphasis mine.

TED OLSON: …You asked me the most effective thing that happened on the other side? I will, I didn’t find any of their arguments effective. I have said from the beginning of this case, I’ve yet to hear an argument that persuades me or even comes close to persuading me that we should treat our gay and lesbian colleagues differently and deny them equality.

But what really happened, which was a very eye-opening event, during the course of the trial, during one of the earlier proceedings. The judge in our case asked my opponent, “What harm to the institution of heterosexual marriage would occur if gays and lesbians were allowed to marry?”

This went back and forth and back and forth. The judge kept wanting an answer. “What damage would be done to the institution of marriage if we allowed this to happen?” And my opponent said, finally, he had to answer it truthfully. He paused and he said, “I don’t know. I don’t know.” That to me sums up the other side. They say the traditional definition of marriage, but nothing by allowing the two couples that were before the court or others like them to engage in a relationship with their partner where they can be treated as an equal member of society hurts your marriage or my marriage or David’s marriage or any other heterosexual marriage. People are not going to say, “I don’t want to get married anymore if those same sex people can get married. That’s not going to happen.” There is no evidence to support a basis for this prohibition.

BILL MOYERS: And yet your opponents kept coming back to the argument that the central reason for Proposition 8, and I’m quoting here, is it’s role, quote “in regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation.”

TED OLSON: We have never in this country required an ability or a desire to procreate as a condition to getting married. People who are at 70, 80, 90 years old may get married. People who have no interest in having children can get married.

And what that argument does is tip it on its head. The Supreme Court has said that the right to get married is a fundamental individual right. And our opponents say, “Well, the state has an interest in procreation and that’s why we allow people to get married.” That marriage is for the benefit of the state. Freedom of relationship is for the benefit of the state.” We don’t believe that in this country. We believe that we created a government which we gave certain authority to the government. The government doesn’t give us liberty, we give the government power to a certain degree to restrict our liberty, but subject to the Bill of Rights.

So, our fundamental differences there, no one’s stopping the procreational function of people that wish — heterosexual people to get married and have all the children that they want. No one’s stopping that. It is simply allowing people that have abiding affection for one another to live a civil life as your next-door neighbor. The same way you are.

DAVID BOIES: The most important thing is that there’s no connection between gay and lesbian marriage and procreation. It doesn’t limit procreation. It doesn’t discourage heterosexual marriage. In fact, it allows gays and lesbians to raise their children. They’re talking about the children of heterosexuals, okay? Those people aren’t being harmed. They’re ignoring the children of the gay and lesbian couples, who even the defendants in this case admitted were being harmed by Proposition 8.
…

…The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life’s joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution’s protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

It is true that marriage in this nation traditionally has been regarded as a relationship exclusively between a man and a woman, and many of our nation’s multiple religions define marriage in precisely those terms. But while the Supreme Court has always previously considered marriage in that context, the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals.

Marriage is a civil bond in this country as well as, in some (but hardly all) cases, a religious sacrament. It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state’s support and benefits. The California Supreme Court described marriage as a “union unreservedly approved and favored by the community.” Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.

What, then, are the justifications for California’s decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.

The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors’ prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite “tradition” as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate.

The second argument I often hear is that traditional marriage furthers the state’s interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?

This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What’s more, it is pernicious to think marriage should be limited to heterosexuals because of the state’s desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.

Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.

The simple fact is that there is no good reason why we should deny marriage to same-sex partners. On the other hand, there are many reasons why we should formally recognize these relationships and embrace the rights of gays and lesbians to marry and become full and equal members of our society.

No matter what you think of homosexuality, it is a fact that gays and lesbians are members of our families, clubs, and workplaces. They are our doctors, our teachers, our soldiers (whether we admit it or not), and our friends. They yearn for acceptance, stable relationships, and success in their lives, just like the rest of us.

Conservatives and liberals alike need to come together on principles that surely unite us. Certainly, we can agree on the value of strong families, lasting domestic relationships, and communities populated by persons with recognized and sanctioned bonds to one another. Confining some of our neighbors and friends who share these same values to an outlaw or second-class status undermines their sense of belonging and weakens their ties with the rest of us and what should be our common aspirations. Even those whose religious convictions preclude endorsement of what they may perceive as an unacceptable “lifestyle” should recognize that disapproval should not warrant stigmatization and unequal treatment.

When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.

I understand, but reject, certain religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural; and I take strong exception to those who argue that same-sex relationships should be discouraged by society and law. Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual. To a very large extent, these characteristics are immutable, like being left-handed. And, while our Constitution guarantees the freedom to exercise our individual religious convictions, it equally prohibits us from forcing our beliefs on others. I do not believe that our society can ever live up to the promise of equality, and the fundamental rights to life, liberty, and the pursuit of happiness, until we stop invidious discrimination
on the basis of sexual orientation.

If we are born heterosexual, it is not unusual for us to perceive those who are born homosexual as aberrational and threatening. Many religions and much of our social culture have reinforced those impulses. Too often, that has led to prejudice, hostility, and discrimination. The antidote is understanding, and reason. We once tolerated laws throughout this nation that prohibited marriage between persons of different races. California’s Supreme Court was the first to find that discrimination unconstitutional. The U.S. Supreme Court unanimously agreed 20 years later, in 1967, in a case called Loving v. Virginia. It seems inconceivable today that only 40 years ago there were places in this country where a black woman could not legally marry a white man. And it was only 50 years ago that 17 states mandated segregated public education—until the Supreme Court unanimously struck down that practice in Brown v. Board of Education. Most Americans are proud of these decisions and the fact that the discriminatory state laws that spawned them have been discredited. I am convinced that Americans will be equally proud when we no longer discriminate against gays and lesbians and welcome them into our society….

I can almost forgive the guy for helping George W. Bush get elected…