the legal battle over gay marriage is now one step closer to going before the supreme court. supporters of proposition-8 which bans same-sex marriage in california brought their case before a federal appeals court today and david boies and ted olson were once at odds in the bush versus gore case. david boies joins us now, he s an attorney for american foundation for equal rights. and chad grafen is the board president. let me start with david boies. could you give me, david, a layman s case for striking down prop 8? sure. marriage has been ruled to be a fundamental right by the united states supreme court 14 times over the last hundred years and the question is should that
never be put up for the vote of the people. political campaigns are decided who has the best political rhetoric, who can put the best ads on television. one s fundamental constitutional rights should never be put for the vote of the people and i am one who believes in the ballot initiative process and there are certainly things across thus country voted on by the people. a fundamental constitutional right, particularly that of a minority, should never be put up for a vote of the people and decided by a political campaign and who has the best advertising. and the most money. what are the chances, david, of getting scalia on this, some of the more conservative judges on the argument that it is a it is a fundamental right and that they might just jump the fence and join you guys? right. we re not giving up on any of the justices because i mean, if you look at ted and myself, it s hard to find two lawyers farther apart on the political spectrum. right. we ve always believed from
well, elena kagan s seat is probably secure, but what will the future of john roberts court look like? ted olson and david boise have teamed up to fight california s ban on same sex marriage. before we get to the future of the court, i want to start with the news of the day. ted, i want to start with sort of this lawsuit the federal government has initiated against the state of arizona. walk us through the procedure on this. so the federal government is suing a state over a statute. where will it go from here? first, what court hears it first, and how long will it take to the get to the supreme court? well, it is my understanding they file the case in a federal district court in arizona to seek the blockage of the
supreme court to hear? we are challenging proposition eight which is a measure adopted by the california voters to amend the california constitution that said that marriages would only be recognized between a man and a woman. they put that in the california constitution taking away the rights of gay and lesbian citizens to get married, which had already been recognized in california. david and i are challenging that constitutional amendment on federal constitutional grounds and we re representing private individuals who, in close relationships who wish to get married and we re saying that it denies them the equal protection of the law because we re putting gay and lesbian fellow citizens in a separate class denying them rights that are available to other people and taking away from them the right to marry, which the supreme court has repeatedly held is a fundamental right in our country. david, i m sure you watched the elena kagan confirmation hearings. it seemed democrats were mak
and federal statutes being struck down. but activism is activism. if by activism you mean the supreme court stepping in and striking down state statutes, striking down congressional statutes and giving a particular lead narrow interpretation to laws that they don t like and a broad interpretation to laws that they do like, almost every court is activist in that sense. fair assessment really quickly, ted. activist is in the eye of the beholder. people who say that over and over again. what david, i think, was saying is one important point. we have an independent judiciary to enforce the constitution. legislatures and the executive branch officials sometimes deprive people of their individual rights because they re minorities. that s what we expect the courts to help us with. ted olson, david boies, thank you both for being here. we look forward to seeing you