Courting Attention: Covering Calif.'s Marriage Trial

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross. The case for gay and lesbian marriage is being made in a San Francisco courtroom, and whatever the outcome, the case is likely to go to the Supreme Court. The plaintiffs are challenging Proposition 8, the California referendum which passed in November, 2008, overturning a state supreme court decision allowing same-sex couples to marry.

The two lawyers defending gay marriage, arguing that Proposition 8 is unconstitutional, are an unlikely team: Ted Olson and David Boies. They were on opposite sides of the Bush v. Gore case after the contested 2000 presidential election, with Boies representing Al Gore and Olson representing George W. Bush.

My guest, Margaret Talbot, wrote a background article about the gay marriage case, Perry versus Schwarzenegger, for the New Yorker. The article is titled "A Risky Proposal: Is It Too Soon to Petition the Supreme Court on Gay Marriage?" And she's blogging about the trial, which began last week.

Margaret Talbot, welcome back to FRESH AIR. You know, it's so interesting that the case for gay marriage should be argued in part by Ted Olson, who is a conservative, and of course, it's surprising that it's Olson and Boies. How did Ted Olson get on the case?

Ms.�MARGARET TALBOT (Author, "A Risky Proposal: Is It Too Soon to Petition the Supreme Court on Gay Marriage?"): Well, it is an interesting story, and it certainly surprised a lot of people. As you say, he's a conservative. He was the former solicitor general under George W. Bush. He was in the Reagan administration Justice Department. He's associated with the Federalist Society. He's a conservative. He, apparently, though, had some sympathy that went back some time that he had not particularly acted on in a public way, but he did have this sympathy for gay rights, and this had come up in a few small ways in the administrations he'd worked in previously. For example, he told me that he had opposed George Bush's idea of making a federal amendment that would have defined a constitutional amendment that would have defined marriage as between a man and a woman. He felt it was a bad idea to amend the Constitution in that way.

But how he actually got involved in this case was he had a former sister-in-law who knew a couple of knew a gay rights activist and Rob Reiner, the actor and director Rob Reiner, who were hoping to launch some sort of strategy to overturn Proposition 8 in California. And this woman, this former sister-in-law of Ted Olson's, ran into Rob Reiner and this activist and political strategist, Chad Griffin(ph), in L.A., and said you know, I think you would be surprised, but I think Ted Olson is on your side on this. Why don't you contact him and see if he could help you. And they did, and he was quite receptive from the beginning.

GROSS: And how did Ted Olson decide to ask David Boies, his former opponent in Bush v. Gore, to be his partner on this case?

Ms.�TALBOT: Well apparently, although they were opposing counsel, of course, in Bush v. Gore, and on opposite sides of the political spectrum, they had become friends in the aftermath of Bush v. Gore, and Olson felt that it would make a more powerful case, a case that would get certainly more coverage but also a case that would suggest that this was a nonpartisan issue, that it was an American issue, as he has said repeatedly, and a constitutional issue, if he were to find someone from the opposite end of the political spectrum to be on his team.

And of course, Boies is known as an excellent, crack litigator. So I think he felt that he would also add a lot legally and strategically to the team.

GROSS: Olson and Boies had to actually look for plaintiffs for this case in an attempt to overturn Proposition 8 in California. So what were they looking for in the plaintiffs?

Ms.�TALBOT: Well, it's interesting. I mean, I think they were looking for couples who had stable, long-term relationships. Of course, in cases like this, these can take several years to wind their way through the courts and ultimately, in this case, up to the Supreme Court is their hope.

So you want couples who you think are going to stay together throughout this process, and it of course can be a very stressful process. You're the public face of this case. You're giving depositions about personal and even intimate matters. And so I think that, you know, partly what they're betting on is couples who look like they're going to stay together. That's a hard bet to make, right? But I think that's part of what they hope to find. And also people who are willing to be, as I say, the public face of a case like this, a case which actually was controversially controversial, excuse me, even among gay rights activists.

A lot of the mainstream gay rights groups were skeptical about this case in the beginning especially, feeling that it was premature, that it didn't stand a good chance of prevailing in the Supreme Court and could be a real setback for the movement. So, you know, it's a hard choice to ally yourself with a suit like that, but these were two couples.

It's a couple who are the female couple live in Berkeley and have four children that they're raising, four boys, and then there are two men who live in Southern California. Both have been in fairly long-term relationships, both couples, but were unable to marry, did not get married in the six-month period in California when it would have been legal for same-sex couples like them to marry.

GROSS: How did they do during their testimony in the first day of the trial?

Ms.�TALBOT: Well, I think they did you know, the consensus is they did well. They spoke directly about the hurt they felt at being denied the right to marry, the sense of being sort of devalued. They talked about not really having a word to describe their marriage, particularly the female couple talked about this, the idea that, you know, when you say domestic partner, it just doesn't carry the same meaning for most people as when you say husband or wife or spouse. And they talked about, you know, the meaning for their children of their being involved in a relationship that was sort of held to be lesser by society in general.

So you know, I think they were personal without being overly personal, and I think they were effective. They're very articulate, I would say, all four of these people.

GROSS: The case is called Perry versus Schwarzenegger, but Schwarzenegger isn't actually Governor Schwarzenegger really isn't participating in this case. The state of California declined to join the suit, and the California attorney general says Proposition 8 is constitutional. So can you explain how the case can still be Perry versus Schwarzenegger when the state has declined to join in?

Ms.�TALBOT: It is a bit confusing. Yes, Schwarzenegger and the attorney general of California, Jerry Brown, as you say, declined to defend Proposition 8 in this case, which apparently is an option they have. And so private lawyers came forward, lawyers for the advocates of Proposition 8, the original sort of sponsors of Proposition 8, and also lawyers for a group called the Alliance Defense Fund, which is kind of an equivalent of the ACLU for social conservatives. So they have kind of stepped into the breach and are defending Prop 8. And in fact, the city of San Francisco is an intervener on the Olson-Boies side, on the pro-gay-marriage side.

GROSS: Let's talk about the defense's strategy in trying to get the courts to rule that Prop 8 is unconstitutional. On what grounds are they saying that it's unconstitutional?

Ms.�TALBOT: Well, they're arguing that it violates the Equal Protection Clause of the Constitution, that basically this proposition, and in fact all bans on same-sex marriage, are saying that there is a class of people who, solely on the basis of their sexual orientation, have been denied a fundamental right, marriage being a fundamental right in our society and one that's been upheld by the Supreme Court repeatedly.

So they're saying that this is fundamentally unfair and unconstitutional, that sexual orientation is largely innate, biological or genetic, so it's not something that people have a choice for the most part in and that if you are taking this class of people and on the basis of this apparently immutable characteristic, denying them a fundamental right, then you are in violation of the Constitution.

GROSS: Now, the defense is also saying that Proposition 8 is a good basis for a lawsuit because it created three unequal classes of people in California. Can you explain that?

Ms.�TALBOT: Yes. This is an argument that Olson has made repeatedly in the press and in court, which is that yeah, it's created this he's called it sort of a patchwork of inequality because there were 18,000 couples that got married in California, 18,000 same-sex couples that got married in California, during the six-month period when it was legal. So they actually their marriages are still legal in California. Their marriages are recognized. However, were they to divorce, they couldn't remarry, or at least they couldn't remarry someone of the same sex. Then there are gay and lesbian couples who want to marry but can't marry, so that's the second class. And then the third class, of course, would be heterosexual couples who can marry, divorce and so on.

So yes, I mean, Olson argues that there's a kind of absurdity or irrationality to this setup that makes it ripe for a constitutional challenge.

GROSS: The Olson and Boies team is also arguing that separate is not equal, that civil unions and domestic partnerships are not the same as marriage. And they're also saying that they're not inventing a new right or asking the courts to recognize a new right, although the opposition says gay marriage would be a new right. On what grounds are Olson and Boies arguing that gay marriage is not asking the courts to recognize a new right?

Ms.�TALBOT: Yeah, I mean, one of the reasons, of course, that they -Olson in particular wants to emphasize that is because he doesn't really want to be accused of judicial activism, which is of course the great bogeyman of the conservative jurists, so and, you know, a real concern for some political reasons, as well.

So what he's saying is I'm not creating a new we're not seeking to create a new right here. Marriage actually is one of the fundamental rights, although it's not stipulated in the Constitution. It has been upheld in various ways by the Supreme Court as a right of association or right of privacy and so on, and you know, that right encompasses the right to choose who you're going to marry.

And so there have been cases, for example, that have upheld the rights of incarcerated inmates to marry and where the court has again said, you know, that marriage is an equal protection issue and is fundamental.

And so he's saying we're not inventing that right. We're merely and merely, of course, is tricky but we're extending it to marrying someone of the same sex. So that's the leap they're making, but they're basing it on the notion that marriage and the right to choose who you marry are these fundamental rights.

GROSS: You mention that conservative jurists don't want to extend new rights because that's what activist judges do, and conservative jurists are officially opposed to activist judges. Doesn't Ted Olson kind of fall into that category? Wasn't he one of the people behind the Federalist Society, which is a society of conservative jurists who oppose, you know, new rights and, quote, "activist judges?"

Ms.�TALBOT: Yes, he does, and that's you know, that's why a lot of conservatives have been so surprised and put off and even felt kind of betrayed by his taking up of this case.

Ted Olson in a recent edition of Newsweek has an article called "The Conservative Case for Gay Marriage," where he tries to address some of those complaints, and he brings up this notion about not inventing a new right. And he also says basically that there is a conservative case for gay marriage because, you know, conservatives believe in encouraging stable, committed, long-term unions, social and economic partnerships and partnerships for the raising of children and so on. And so, you know, they should be supporting people who want to enter into this institution and are excluded from it.

GROSS: My guest is Margaret Talbot. She's a staff writer for the New Yorker. She wrote an article in the magazine about the gay marriage trial currently underway in San Francisco. We'll talk more after a break. This is FRESH AIR.

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GROSS: If you're just joining us, my guest is Margaret Talbot, a staff writer for the New Yorker, and in the January 18th edition of the magazine, she wrote an article called "A Risky Proposal: Will A New Legal Strategy Help Gay Marriage?" about this case that is now in federal court in California, which is opposing the constitutionality of Proposition 8, which bans gay marriage.

Okay, so let's look at the legal team that is supporting Proposition 8 and does not want gay marriage. What are their main arguments?

Ms.�TALBOT: Well, they have a couple of arguments. One is, as I think I mentioned before, that Californians voted on this issue, and so this is a matter of the popular will expressing itself and the court stepping in, perhaps illegitimately, to reverse that.

GROSS: I just want to stop you there and say what the Olson-Boies argument against that argument is...

Ms.�TALBOT: Yes.

GROSS: Is that, you know, people's constitutional rights should not be put up to a public vote.

Ms.�TALBOT: That's right, and in fact, their argument is that, you know, if you look at cases that would be precedents for this in the area of segregation in race, for example, you know, Brown v. Board of Education or, even more relevantly, Loving v. Virginia, which was the case in 1967 where the Supreme Court overturned the remaining laws that made interracial marriage illegal. And, you know, they say basically if you had asked people to vote, if you had put those matters up to a vote at the time, they would not have prevailed. They would have lost. People would have voted against them.

And I think if you look at what the public opinion polls at the time showed, I think they're absolutely right. I mean, at the time of Loving v. Virginia in 1967, 80 percent of Americans opposed interracial marriage. So that's actually quite a lot more than opposed gay marriage today - about 40 percent of Americans are in favor of gay marriage and 50 percent in favor of civil unions.

So in fact, I think, you know, that argument just factually carries a lot of weight. And then there's the more sort of philosophical argument or legal argument, as well, which is that, you know, this is what the Constitution is for, that to protect the rights of the minority, you don't put that up to a vote. You seek remedy through the courts.

GROSS: Getting back to what the legal team supporting Proposition 8 has to say, they're saying that there is a legitimate moral interest that justifies the ban on gay marriage. Can you elaborate

Ms. TALBOT: Right.

GROSS: on what their case on that ground is?

Ms.�TALBOT: Well, on the one hand they argue simply on the basis of tradition, which is that, you know, marriage traditionally has been between a man and a woman. Of course, the counter-argument to that is there are a lot of traditions that we've decided were unconstitutional or unreasonable or morally suspect, like the tradition of sending children to segregated schools or saying that marriage was only between people of the same race. So that's the counter-argument. But tradition is something that, at least kind of in the general public, people cite quite a lot. So that may it may be an argument that is successful in terms of sort of moving people outside of the courtroom.

The other argument is that the state has a legitimate interest in upholding procreative marriage so that somehow and this is a little tricky, I think, how exactly they're going to make this argument but somehow that allowing marriage between same-sex couples would diminish traditional marriage or heterosexual marriage, procreative marriage, either because it would somehow make people of the opposite sex less likely to marry or simply because, you know, marriages are less likely to be procreative if they are between or, you know between people of the same sex, although, of course, people of the same sex do have and raise children by various means now. But that's the argument.

GROSS: To which Judge Walker has pointed out that the judge who will be ruling on this case that he performed a marriage between a 95-year-old groom and an 83-year-old bride. So for example, their marriage was not about procreation.

Ms.�TALBOT: Right. That was a great exchange, actually, in the pretrial hearing where the judge said well, yeah, the last marriage I performed, as you say, was between a 95-year-old groom and an 83-year-old bride, and you know, was should I not have performed that marriage? He asked the attorney who was defending Prop 8, Charles Cooper, and he said: No, no, of course you should have. And the judge went on to say, and, you know, they have a very happy union. And Charles Cooper said, well, I rejoice to hear that.

But yes, I mean, that is a serious, serious challenge to their argument because many marriages obviously do not result in children. Many people marry without the intention of having children. We don't ask them about their intention to have children or not before we allow them to marry. And so that seems to me quite a problematic argument, actually, but they are making it.

GROSS: Now, you write that if the court uses strict scrutiny that Prop 8 will be struck down. Can you explain what strict scrutiny is?

Ms.�TALBOT: Yes, when the court is looking - the Supreme Court is looking at equal protection claims like this, and it's looking at a category of people that a law singles out, there are three kind of levels of scrutiny that it can use. And strict scrutiny is the one that, as it sounds, is the most stringent, the strictest, and so it, though, has only been used for certain classes of people in the past.

It's basically been used for the categories of race, religion and national origin because these are categories that the court has considered to meet certain criteria. They're immutable characteristics or - I mean, that's a little tricky because religion is not a completely immutable characteristic. But you know, they tend to be immutable characteristics, they tend to be groups that can demonstrate a history of discrimination and of political powerlessness. So there are a few criteria that are used.

Gender, for example, does not fall into the strict-scrutiny category, so and there are two levels of scrutiny, intermediate and rational basis, that are less strict and in which case, you know, the state doesn't have to come up with as good a reason for why they have this law on the books.

So basically when you're using strict scrutiny, you know, the state has to prove that it has a really quite compelling reason to have this law, despite the fact that it singles out, it targets this group of people who have this history of discrimination and so on.

GROSS: Margaret Talbot will be back in the second half of the show. Her article "A Risky Proposal: Is It Too Soon to Petition the Supreme Court on Gay Marriage?" is in the January 18th edition of the New Yorker. You can find a link on our Web site, freshair.npr.org. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. Im Terry Gross. We're talking about the case that's currently underway in San Francisco challenging Proposition 8, the referendum which passed in 2008. Prop 8 banned gay marriage by overturning a state Supreme Court decision that allowed same-sex couples to marry. The two lawyers defending gay marriage, arguing that Prop 8 is unconstitutional, are an unlikely team: David Boies and Ted Olson. They were on opposite sides of the Bush v. Gore case after the contested 2000 presidential election.

My guest Margaret Talbot wrote a background piece about the current gay marriage trial in the January 18th edition of The New Yorker.

Tell us about the judge in this case, Judge Vaughn Walker.

Ms. TALBOT: Mm-hmm. He, actually, is a Republican appointee. He originally - actually, Reagan wanted to appoint him, but didnt, and he was ultimately appointed by the first Bush. And he is a little unusual in that he is - seems to have some kind of Libertarian sympathies in cases involving drug legalization and so on.

And he really has treated this case - I mean, one thing that's been striking, he's really been aware, I think, of the historic importance of this case and really had an eye to the fact that it was likely to go to the Supreme Court and wanted to run a proceeding where he would really hear just all kinds of evidence, everything from sort of the history of marriage to, you know, expert witnesses testifying on whether homosexuality is innate or not, to psychologists testifying about the fitness of gays and lesbians as parents, and so on.

Apparently, he could have done a lot of this on court filings alone, but he decided to have a trial and to have oral testimony. And he also really wanted to have the proceedings, or was very sympathetic with the idea of having the proceedings broadcast, having cameras in the courtroom, and ultimately was thwarted in that. But he clearly wanted to run a fairly and open and high-profile proceeding here.

GROSS: And he was thwarted in terms of having cameras in the courtroom. The opposition to that said that the people who were testifying against gay marriage would be harassed in retaliation for that testimony, and they were fearful, and that's why the Supreme Court decided that this case couldnt have cameras.

Ms. TALBOT: Yeah, that was surprising. The Supreme Court kind of came in on this emergency basis and stopped this plan at the very last minute. What Vaughn Walker, the judge, had wanted to do - and this had been approved as part of a pilot program for the 9th Circuit, the Appeals Courts in the West. He wanted to have the proceedings videotaped and then show them in two ways: One, by streaming video to federal court, like five federal courthouses around the country that people could come to and watch, you know, because the idea was that this was such a historic trial and that there would be interest in it. And then there was even talk of actually uploading the video every night to YouTube. And, of course, a lot of us journalists who weren't going to be there and others were very, you know, pleased about this.

But the defenders of Prop 8 were opposed to this - very opposed to it. Actually, the Olson-Boies team was in favor of it, but the defenders of Prop 8 appealed to the Supreme Court, and the Supreme Court sided with them. And yes, the argument was that some of their witnesses would be intimidated and perhaps harassed. And there was some basis for concern about that in the sense that some donors to the pro-Prop 8 campaign, according to some articles in The New York Times that ran last winter, had received some hate mail and, you know, picketers, and some had been harassed.

And I dont know how widespread this was, but there was some reason to be concerned about that. Although, as Stephen Breyer, who wrote the dissent in the Supreme Court decision leading the liberal bloc and wanting the - or, you know, wanting to allow the proceedings to be videotaped - as Breyer said, you know, a lot of these people were already public figures. They'd been around the state arguing against gay marriage. They'd been on TV. So it wasnt clear that, especially if it was going to be this closed-circuit broadcast at federal courthouses, that this was going to put them into some whole other category of, you know, familiarity than they already had.

GROSS: Since this trial is not on YouTube, how have you been able to follow it, being in Washington?

Ms. TALBOT: Well, it's interesting. I dont know if this is completely unprecedented, but it's certainly unusual. There are people in the courtroom - reporters, and also, you know, advocates for both sides -who are live tweeting and blogging from the courtroom. They're allowed to have their laptops. So, you know, the last big trial like this I covered - which was an intelligent design trial in Pennsylvania a couple of years ago - you know, nobody was allowed to have laptops in the courtroom.

So this is a new thing, and you can follow. And it's kind of interesting, because you can follow the perspective of the Alliance Defense Fund, you know, person who's tweeting and also, you know, the various gay marriage groups, Courage Campaign and other people who have people in the courtroom tweeting. And you can kind of see kind of what they notice about the witnesses' testimony and what jumps out at them and compare them. And that's really quite interesting.

GROSS: And youve been blogging based on the tweeting that youve been reading.

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Ms. TALBOT: That's right. Yeah. Yeah.

GROSS: So...

Ms. TALBOT: And, of course, they're reporters there, too, who are live, blogging from, you know, many newspapers and the AP, and so on.

GROSS: So, so far, what has surprised you most either in what the witnesses have said or what the lawyers have said?

Ms. TALBOT: Well, one of the things that's been interesting is to try and figure out how the defenders of Prop 8 were going to make this case that allowing same-sex marriage actually harms heterosexual marriage. Because in the pretrial hearing when this came up, at one point the judge - kind of in frustration, after asking this repeatedly - said to Charles Cooper, one of the lawyers defending Prop 8, said: You know, just explain to me, how does it actually harm heterosexual marriage?

And apparently, there was a long pause and Charles Cooper said, I dont know. I dont know. He repeated it. So people wondered, well, hmm. I mean, when it actually came to trial, were they going to have, you know, a little bit more to say on this, this being kind of the nub of their argument?

And the other thing that I guess has come up, one of the people who was an original sponsor of the Prop 8, his name is Hak-Shing William Tam, he actually was an intervener in this case, but then said he wanted to get out of it because he was concerned about retaliation. And so he -actually, he had a videotaped deposition that was shown, and there's some question about whether he will actually testify in person or not.

They were able to get some of his writings, some of his letters from the campaign where he expressed some fairly hysterical views about the direction that the, you know, homosexual agendas - as he called it - is going, so that it, you know, it was going to lead to first legalization of prostitution then legalization of sex with children.

And also that, you know, his argument - and I guess the argument of some other sponsors of Prop 8 - was that somehow homosexuality, if people were allowed to marry, was going to become this kind of irresistible force and lots of heterosexual children would suddenly decide they were gay. So that has come up as an argument, and that's interesting that that's been introduced because one of the things that Olson and Boies hoped to establish is that Proposition 8 was motivated by what is often referred to in the legal terms as irrational animus, that there was a kind of irrational hatred of or fear of gays and lesbians that was part of the justification or intention behind it.

GROSS: My guest is Margaret Talbot, a staff writer for The New Yorker. She wrote an article in the magazine about the gay marriage trial currently underway in San Francisco.

More after a break. This is FRESH AIR.

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GROSS: My guest is Margaret Talbot. She wrote an article in The New Yorker about the trial that's now underway in San Francisco challenging the constitutionality of Proposition 8, which bans gay marriage in California.

Now, no matter how Judge Walker rules, this case is likely to go to the Supreme Court because whichever side loses is likely to appeal, right?

Ms. TALBOT: That's right. Yes. It would go first to the 9th Circuit Federal Court of Appeals, and then to - and then from there to the Supreme Court.

GROSS: And...

Ms. TALBOT: And it almost surely would because, you know, either way, as you say, someone's going to appeal. If, for example, you know, the 9th Circuit was to allow, you know, was to say that bans on gay marriage were unconstitutional, then you would have legal gay marriage in states like, you know, Alaska and Montana and, you know, a large chunk of the country. And I dont think that would be a viable situation. The Supreme Court, I think, would have to take it up. And if they were not to side with Olson and Boies, you know, I think Olson and Boies will definitely appeal because they want to make this a Supreme Court case. They want to make it a contemporary Loving v. Virginia.

GROSS: Now since this case is likely headed to the Supreme Court, it's been pretty controversial among gay legal rights leaders. Some people in the gay community who are active legally feel that the Supreme Court isn't ready to side with gay marriage and that the better strategy is the state-by-state strategy. Do you think this case remains controversial within the gay community?

Ms. TALBOT: Well, as you say, initially...

GROSS: Strategically, yeah.

Ms. TALBOT: Yeah, strategically. Initially, there was, you know, fairly open criticism. I mean, there was a group of organizations, including the ACLU and Human Rights Campaign and GLADD, some other national gay and lesbian organizations that issued a statement that kind of said efforts like this are just, they're premature. They're risky, and they compared it to a case called Bowers and Hardwick in 1986 that went to the Supreme Court, which was an attempt to overturn the sodomy laws in the country that targeted, you know, intimate sexual practices of homosexuals. And that case failed at the Supreme Court, and it took 17 years - till 2003, with Lawrence v. Texas - when those laws finally were overturned. And they, you know, that was a long wait, and they felt that it was - you know, it had been a significant setback, that that case had been premature and that this case might be like that.

Also, that yes, as you say, that going state by state - which is what the sort of mainstream gay marriage equality movement has been doing -is, you know, is effective because, you know, even though you have a lot of two steps forward, one step back, you are kind of bringing people around. Youre changing hearts and minds. Youre showing that, you know - like Massachusetts has had same-sex marriage since 2004 and, you know, the sky hasnt fallen and, you know, the state seems to be doing just fine. And so youre kind of convincing people - youre showing them that their worst fears about what this might do are not coming to pass.

And also, youre allowing people to vote and - or at least to, you know, have their state legislatures vote and not feeling that this is being imposed from above, and that they have more sort of buy-in to it if they feel that way. And also, just that - the other concern was just that the Supreme Court, as presently constituted, could very well not go for Olson and Boies' argument. So, you know, it's just...

GROSS: Yeah, a lot of people think it just - it's in the hands of Justice Anthony Kennedy.

Ms. TALBOT: Well, that's right, because if you could count on the four liberal justices - which, okay, assuming you can - but yeah, then you have to look to Kennedy. Youre certainly not going to get Scalia. Youre certainly not going to get Thomas or Roberts or Alito. So, yeah, so you think, well, maybe Kennedy. Because Kennedy, he's not quite the swing voter that - on the court that Sandra Day O'Connor was, but he did write the majority opinion in Lawrence v. Texas, that 2003 case that overturned the sodomy laws. And it was a pretty sympathetic argument to gay rights.

So people say, well, okay, even though he votes usually on the conservative bloc, maybe there's room to be optimistic for the Olson and Boies side because of this opinion that he wrote in Lawrence. But that's a lot riding on him. And yeah, I dont think you could hope - I mean, you know, Loving v. Virginia, for example, was a unanimous decision. This, you know, you could certainly never hope for that here. The best you could hope for would be a 5-4 decision.

GROSS: Let me just quote something that you quote that Justice Scalia said in his dissent in Lawrence v. Texas, the case that overturned the sodomy laws. He said: "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's' schools or as boarders in their homes. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

Ms. TALBOT: Right. Yeah. And that was in 2003, and I dont think we have any reason to think that Scalia certainly has changed his mind on that. I mean, one thing that, you know, Olson has said is, Scalia, in that descent does say, you know, theres nothing in Lawrence that would prevent the court from recognizing a right to same-sex marriage. Now, he was saying that, you know, rhetorically, as a way of saying Lawrence was a terrible decision because it doesnt even protect us from gay marriage. But again some people looked at that and say, hmm, well, you know, maybe thats something to hang or hopes on.

You know, the other argument, I guess, against bringing this case now is public opinion is changing on this issue. Its changed a lot. And if you look just kind of at the demographics of it, you know, younger people are much more supportive of gay marriage. So, actually, you know, 18 to 29 year olds, a majority 58 percent, support gay marriage. And then you get into older groups and basically with each successive generation the support becomes a less and less, and when you get up to 65 and older, its, you know, quite low.

So, you know, people sort of say, well, if you look at just generational replacement if this is the direction were going and were going to have same-sex marriage just by virtue of people, you know, changing their minds in the direction of supporting it and by virtue of this demographic, you know, divide that you see. So, you know, maybe its better not to rush it, to just kind of let public opinion take its course. You know, the argument against that is well, in the meantime, youre denying a lot of people their rights who, you know, want them and feel theyre constitutionally entitled to them.

GROSS: So, meanwhile theres another lawsuit pertaining to gay marriage - Gill versus Office of Personal Management. This is in Massachusetts, a lawsuit thats filed by GLAD - the gay and lesbian advocates and defenders. And its challenging, one part of DOMA - the Defense Of Marriage Act, which was passed when President Clinton was president. What is this suit challenging?

Ms. TALBOT: Well, what its saying is in Massachusetts same-sex couples have been allowed to marry legally since 2004. Their marriages though, are not recognized at the federal level because we have this DOMA -Defense of Marriage Act, which Bill Clinton signed although he has since renounced. And its, you know, defines marriage as being between a man and a woman. So, there are a lot of benefits that married couples are entitled to at the federal level, you know, tax benefits, you know, if your one spouse of federal employee, you know, there are health insurance benefits and so on.

And so these couples who have marriages that are legally recognized by the state of Massachusetts have marriages that are not legally recognized at the federal level. So, this is not a case thats going to lead more same sex marriages in other states. Its a case that seeks to extend these benefits that are accorded to heterosexual couples, to gay couples in states where they are allowed to marry legally.

But the sort of implications of it would be to point out this sort of contradiction to kind of challenge the status of DOMA. And simultaneously there is actually a bill in Congress to repeal Defense Of Marriage Act. And if it were either struck down as unconstitutional or repealed, that would be significant because it would be saying basically it was a mistake for the federal government to have done this, it didnt need to do it and it was, perhaps, unconstitutional.

GROSS: So, which case is likely to get to the Supreme Court first - the case challenging part of the Defense of Marriage Act or the case arguing that Proposition 8 as unconstitutional?

Ms. TALBOT: Well, they were filed at almost the same time. And nobody really knows, which will get there first. A lot of people say that this Massachusetts case is just a much - because its much narrowly targeted and very carefully crafted, that its kind of a better case - that it stands a better chance of succeeding.

And if it were to get there first it might actually pave the way for the Olson-Boies suit. It would probably be helpful to the Olson-Boies to parry, if this case really gets there first because a lot of times these kinds of laws, then challenges to laws like this, they succeed incrementally. I mean, certainly that was true in the Civil Rights segregation decisions that, you know, before Brown v. Board of Education there were cases that struck down segregation in law schools and higher education before you moved on to public schools. So, this could be a kind of a step along the way - and prepare the way.

GROSS: Well, Margaret Talbot, thank you so much for talking with us.

Ms. TALBOT: Thank you.

GROSS: Margaret Talbot is the staff writer for The New Yorker. Her article about the gay marriage trial "A Risky Proposal," was in the January 18th edition of The New Yorker. You can find a link to her article and her trial blog on our Web site, freshair.npr.org.

Coming up, Maureen Corrigan reviews the novel, "36 Arguments for the Existence of God." This is FRESH AIR.

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