Wednesday's CBS This Morning turned exclusively to David
Boies, one of the main attorneys who argued against California's
Proposition 8 at the Supreme Court on Tuesday. The morning newscast
failed to bring on any of the prominent supporters of the voter-approved
ban on same-sex "marriage" in the Golden State, and granted Boies over
three and half minutes to promote his cause.
During the interview, Gayle King trumpeted how, supposedly, "many people were touched...by Justice [Anthony] Kennedy, who raised the welfare of the children in same-sex marriages."
Both King and co-anchor Charlie Rose let Boies give extended answers to
their questions. Rose first asked, "What do you read into the questions
from the justices yesterday?" When the lawyer asserted that the Supreme
Court justices were "troubled by having taken the case and being
confronted with trying to make a decision on that issue now", the PBS
veteran followed up by asking, "Does that concern you as the one who had been so supportive of making the argument against Proposition 8?"
After King asked her slanted question about the oral arguments, Rose returned to the justices' apparent reluctance to handle the marriage issue: "David, would you reconsider the strategy – listening to the justices yesterday – that you and the team had?"
Interestingly, the morning show used an on-screen graphic to highlight a CBS News poll result that found that Americans overwhelmingly prefer that state governments handle the controversial issue rather than the federal government.
Just before the Boies segment, CBS This Morning aired a report from correspondent Jan Crawford, which, as the MRC's Scott Whitlock pointed out, was more balanced than Good Morning America's coverage of the Supreme Court case on ABC.
The full transcript of the David Boies interview from Wednesday's CBS This Morning:
CHARLIE ROSE: David Boies is one of the lawyers who appeared before the
Court yesterday. He is part of the team arguing against Proposition 8.
He's a same-sex marriage supporter. Good morning, David.
DAVID BOIES, ATTORNEY FOR SAME-SEX MARRIAGE: Good morning.
[CBS News Graphic: "Supreme Debate: The Case's Attorney Argues For Same-Sex Marriage"]
ROSE: What do you read into the questions from the justices yesterday?
BOIES: I think the most that you can read into them is that it's a very complicated issue from their standpoint. There were four different legal theories that they were grappling with, all in the space of about an hour. So, you had a number of questions coming from different justices about different legal theories. And so, I think it's – it's particularly hard, in this case, to read too much into their questions. I think that you can say that they were troubled by having taken the case and being confronted with trying to make a decision on that issue now, perhaps without letting it percolate a little bit, as one of the justices said in the courts of appeals (sic).
ROSE: As civil rights had – I mean, does that concern you as the one who had been so supportive of making the argument against Proposition 8?
BOIES: Well, obviously, we would like to see a 50 states solution. We would like to see the Court rule that banning gays and lesbians from marrying the people that they love is unconstitutional in all 50 states.
On the other hand, we recognize that the California statute is particular to California. The court of appeals in the Ninth Circuit decided it on California's specific grounds. And so, that's always been one of the alternative ways the Court could decide it, as is the technical question of standing – that is, whether or not these particular proponents of Proposition 8 are able to bring their case to the Supreme Court.
GAYLE KING: Many people were touched, David, by Justice [Anthony] Kennedy, who raised the welfare of the children in same-sex marriages. What did you make of that, and does that indicate to you any way that he, in particular, is leaning?
BOIES: Well, I think, again, it's hard to interpret too much into that. But one of the things that was absolutely clear from the record – even the defendants' expert witnesses admitted it – which is that the children – tens and hundreds of thousands of children being raised today by gay and lesbian couples – are seriously harmed by not permitting the people raising them to be married. And there was no dispute about that. Even the defendants' witnesses admitted that. And so, you've got a serious harm to these children that's ongoing every day, and I think focusing on that harm was an important aspect of the consideration.
ROSE: David, would you reconsider the strategy – listening to the justices yesterday – that you and the team had?
BOIES: No, because we've always presented this as giving them an effective menu that they could choose from. For example, we argued that there was no standing, which, if the Court agrees, would send the case back and put the district court opinion into effect. We've argued that the Ninth Circuit opinion was justified, in terms of holding that California, having granted same-sex marriage, could not take it away without any rational basis. We argued in support of the Solicitor General's argument that said there's no basis other than to impose a badge of inferiority on gay and lesbian citizens, to prevent them from having the name 'marriage' when they get all the other rights. And we've argued that there ought to be a broad right to marriage equality all across the country. So, we presented all four of those.
[CBS News Graphic: "Who Should Decide About Same-Sex Marriage? State government, 62%; Federal government, 26%; Source: CBS News Poll: Margin Of Error: +/- 3% Pts."]
ROSE: David, thank you very much for joining us.
BOIES: Thank you.