Courting Attention: Covering Calif.'s Marriage Trial

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Courting Attention: Covering California'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.

(Soundbite of music)

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.

(Soundbite of music)

GROSS: This is FRESH AIR. I’m 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 didn’t, 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 couldn’t 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 don’t 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 wasn’t 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 don’t 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 you’ve been blogging based on the tweeting that you’ve been
reading.

(Soundbite of laughter)

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 don’t
know. I don’t 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.

(Soundbite of music)

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 don’t 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. You’re changing hearts and minds. You’re showing that, you know
- like Massachusetts has had same-sex marriage since 2004 and, you know,
the sky hasn’t fallen and, you know, the state seems to be doing just
fine. And so you’re kind of convincing people - you’re showing them that
their worst fears about what this might do are not coming to pass.

And also, you’re 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. You’re certainly not going to get Scalia.
You’re 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 don’t 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 don’t 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, there’s 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 doesn’t even protect us from gay
marriage. But again some people looked at that and say, hmm, well, you
know, maybe that’s 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. It’s 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,
it’s, you know, quite low.

So, you know, people sort of say, well, if you look at just generational
replacement – if this is the direction we’re going and we’re 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,
you’re denying a lot of people their rights who, you know, want them and
feel they’re constitutionally entitled to them.

GROSS: So, meanwhile there’s another lawsuit pertaining to gay marriage
- Gill versus Office of Personal Management. This is in Massachusetts, a
lawsuit that’s filed by GLAD - the gay and lesbian advocates and
defenders. And it’s 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 it’s, 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 that’s going to
lead more same sex marriages in other states. It’s 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 didn’t
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 it’s much narrowly targeted
and very carefully crafted, that it’s 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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'36 Arguments' Poses Questions Of Faith, In Fiction

TERRY GROSS, host:

Rebecca Newberger Goldstein is a novelist and philosopher with a finely
developed sense of fun. Her novels, which she said are philosophically
motivated often investigate the tensions between the life of the mind
and wayward desires of the body.

Book Critic Maureen Corrigan has a review of Goldstein’s latest novel
called "36 Arguments For The Existence Of God."

MAUREEN CORRIGAN: The new year began badly for me — with a thick head
cold and one of those artfully written novels that start off with a lot
of beguiling razzmatazz and turn out to be about nothing. The novel in
question, "The Privileges," chronicles 20 years in the life of a golden
couple who never lose their luster. Other critics have rightly enthused
over the novel’s evocation of the world of the New York mega-rich.

But I found myself growing crankier with every passing chapter in which
very little of substance happened. By frustrating narrative
expectations, "The Privileges," certainly makes readers conscious of the
cliche plot lines we carry around in our heads. But my poor head was too
congested for games. I wanted a dose of diverting plot, interesting
characters, and a point, along with my Nyquil.

That’s just when Rebecca Newberger Goldstein’s new novel appeared like
an answer to a fevered prayer. Ever since her 1983 debut called, "The
Mind-Body Problem," Goldstein has marked out a singular space for
herself in the world of contemporary fiction. A philosopher by training,
she holds a PhD from Princeton, Goldstein writes about what happens when
worlds collide, the realms of the ethereal versus the everyday, of
erudition versus gut instinct, of ration versus lust. Best of all,
Goldstein gets away with this high-hating because she’s so funny and she
knows how to tell an engrossing story. When you have as much gleeful
gravitas as Goldstein, you don’t have to find quirky ways to show off.

This latest novel is called, "36 Arguments for the Existence of God" and
they’re really listed — along with their refutations — in the appendix
of this book. Our hero here is named Cass Seltzer, and like many of
Goldstein’s characters, he’s a Jewish academic, in this case, a learned
psychologist of religion. But Cass has lately become a crossover success
because of his surprise bestseller entitled, "The Varieties of Religious
Illusion."

Dubbed, the atheist with a soul, Cass has attracted the notice of Oprah,
Time Magazine, even NPR - with his compassionate and timely tackling of
the existential jackpot question: does God exist? Thanks to the efforts
of his canny literary agent, a shark who boasts that he knows how to put
the antic back in pedantic and the earning back in learning, Cass is now
that rarest of animals: a wealthy public intellectual. His success is
tempered, however, by the return of an old girlfriend who, strangely,
calls to congratulate him on writing such a profoundly autobiographical
book.

Taken aback, Cass realizes that he’s indeed still replaying the life-
shredding events that took place some 20 years ago, when he was a
graduate student. Back then, he was under the charismatic sway of a sage
— or maybe a madman — named Jonas Elijah Klapper, a scholar who composed
the entire department of faith, literature, and values at the fictitious
Frankfurter University.

As Klapper became swept up in the study of Kabbalah and the secluded
life of a nearby Hasidic sect, Cass tried to airlift a young boy out of
that community — a boy who was clearly a mathematical genius, slated to
have his gifts ignored because of the worldly suspicions of religious
orthodoxy. Of course, Cass would still be haunted by that tumultuous
time and by the larger questions about identity, loyalty and most
importantly, why people embrace religious belief that still linger.

"36 Arguments for the Existence of God," ends with a suspenseful set
piece in which Cass debates another famous academic on the proposition
that God exists. The brilliance of Goldstein’s satirical, yet affecting
narrative is that even as Cass, in the midst of the debate, finds
himself drawn to his cutthroat opponent’s religious point of view,
there’s enough secular ammunition left in these ending pages to garner
the endorsement of uber-atheist Christopher Hitchens, who blurbed this
book.

Part academic farce, part metaphysical romance, all novel of ideas, "36
Arguments for the Existence of God," may not settle the question of
whether God exists, but it does affirm the phenomenon of literary
miracles.

GROSS: Maureen Corrigan teaches literature at Georgetown University. She
reviewed "36 Arguments for the Existence of God," by Rebecca Newberger
Goldstein.

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GROSS: You can follow us on Twitter at nprfreshair and you can download
podcasts of our show on our Web site freshair.npr.org.

I’m Terry Gross.
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