 I want to welcome everyone here to the the LBJ library for what I think is a great event that means a lot to me that we're doing and I want to also welcome each of you to the Future Forum. Future Forum is the younger group here, Public Policy Discussion Group and we have a little bit of fun. I'm the the chairman of the board of directors right now and for the Future Forum members who are here welcome back and for those of you who are new we'd encourage you to think about joining us as members. We try to get together at least quarterly and we easily get together about eight times a year for informative programs on current public policy and other items. I'm coming together really in the spirit of LBJ whose favorite biblical quote was come let us reason together and that's really what we try to do here which kind of led to the the genesis of of this panel and and this topic. There's a lot of other groups that did have done discussions and have done panels on pros and cons or the the gay marriage debate if you will. I started taking a look at it and actually really coincided in Dovetail nicely with a article that I got tipped off that that Pam was writing and the more I started talking to Pam the more we started looking at it. The debate shifted from being a debate into really exploring the context of the same-sex marriage issues what's going on historically where we've been where we are now with the court decisions and where we're going and and how this is going to shape societal issues both within America but also within the the gay community as a whole. And that's part of the reason for the title an idea whose time has come question mark invoking Victor Hugo and in his quote which was then later used in 1964 by MLK in his Nobel Peace Prize speech and also by Everett Dirksen Republican Senator from Illinois Minority Leader when making a motion for cloture on civil rights bill. So it all comes full circle. I'm thrilled to have the panel that we have here and I'm so thrilled in fact that I actually invoked executive privilege as chairman of the board of directors to be able to moderate it. So I'm going to introduce them and then get the heck out of the way. First I'm going to introduce Pam Colliff. Pam is executive editor of Texas Monthly and has written for the magazine since 1997. Her work has also appeared in The New Yorker and has been anthologized in the best American magazine writing, best American crime reporting, best American non-required reading and next wave America's next new generation of great literary journalists. Wow. Pam is a four-time National Magazine Award finalist. She's nominated in 2001 for her article on school prayer and then again in 2011 for a two-part series Innocence Loss and Innocence Found about wrong and convicted death row and made Anthony Graves which was an aside a one of my favorite events that the Fuchs forum has ever done was a panel discussion with Pam and Anthony Graves that was just phenomenal. In 2013 she was nominated twice for more for Hannah and Andrew and then as a man two-part series about Michael Morton the man who spent 25 years wrongfully imprisoned for the murder of his wife Christine. I have the latter earned a National Magazine Award for feature writing. Pam I'm just thrilled to have you here so thank you. Next I'd like to introduce Boyce Cabanus who Boyce is an attorney at Gray Story here in Amity here in Austin specializing in legal writing and also particularly writing briefs at the both the appellate and trial court level. He's held briefing for clients in the U.S. Supreme Court and pretty much every district around the country. He has extensive experience representing plaintiffs and defendants and everything from constitutional law matters to federal and state regulatory matters and everything in between. Boyce wrote a very interesting amicus brief helped write it on behalf of a group of history professors that was quoted by the Ninth Circuit in their decision just recently really looking at the a lot of the historical where where we've been to get to this moment and also where does it fit into the context of the the greater both marriage debate but also civil rights debate. And then I will not last but not least I want to introduce Vic Holmes and Mark Ferris. Vic entered the Air Force right after high school in 1988 and retired from active service in December 2010 as a major after almost 23 years of service. Thank you for doing that for our country. While in the military obtained by this bachelor's and master's degree from the University of Nebraska became a physician assistant received numerous awards including the 2004 Outstanding Provider of the Year, the Air Force Achievement Medal three times and the Air Force Commendation Medal. He's currently a physician assistant studies instructor at the University of North Texas in Fort Worth positioning cells since December 2010. In addition he provides home based medical care and services to physically and mentally challenged at Fort Worth and Lewisville. Mark Ferris a fellow attorney received his undergraduate degree from Westminster College and his law degree from Vanderbilt law school where he was classmates with a guy who currently is the highest-ranking public official in the state of Texas. Mark has priced general corporate law for over 29 years, was a partner at a major Dallas law firm and is currently the assistant general counsel of expert global solutions Inc. a 1.2 billion revenue business process outsourcing company based in Plano Texas. He currently serves on the board of directors of team essay endowment the foundation is supporting the nonprofit San Antonio Spurs sports and Family Place a Dallas based safe haven for families of victims of family violence which is a great organization my dad actually once served on that board in Dallas great place. The reason we're here reason they're here is October 2013 Mark and Vic applied for marriage license in San Antonio and when denied file suit along with another couple challenging the constitutionality of Texas ban on same-sex marriage the district court ruled Texas ban on constitutional in February 2014 Texas appealed the decision to the Fifth Circuit which heard Earl arguments in January of this year a decision is currently pending we're all waiting at the same at the same time and they'll get into this there's also a Supreme Court is taking another case but I want to start things off because really kind of the inspiration for this and in partnership with Texas Monthly for those of y'all who haven't read it Pam's cover story is fantastic it's a fantastic look at both the people involved but also with the the issue in general so you know Pam I want to start off with you and ask you you know obviously this has been going on for a while and the the appeals were heard in January why why now why do you think this is relevant now it seemed to be the the perfect moment to be writing about this issue because you know when we when I started working on the story the safe bet was that the Supreme Court was going to be taking this up between now and June and that will indeed be happening and we knew that the Fifth Circuit had oral arguments scheduled for January so it seemed like a really great opportunity to write about this issue because I was literally going to be able to see the state stand up in front of a federal court and argue its position and and the opposite side as well and so getting to know the plaintiffs in the case the story is primarily focuses on the two female plaintiffs in the case who were hoping to join us but are on the verge of having a baby so they could not be here but sort of exploring their life and their history together and then juxtaposing that with the way that the Attorney General's office characterized them as being a threat to marriage seemed like a rich source of material that's the way I'll put it so that's great and then Vic and Mark one of the things that has struck me about about your story in particular is you know rewind two and a half years you guys are I don't want to play through again yeah yeah and that's and that's the thing is I mean you guys had a at a quiet life and you're involved in in your careers and in the community what made you decide to kind of depart from that that quiet life and say we're going to do this and and and also you know what were the the what are the things y'all thought about then and what's the reality been well it was clearly a temporary lapse of sanity yeah uh you know that I mean the main reason to to pursue the lawsuit was because I love him I met him over 17 years ago I was immediately taken by him when I met him I met him at the birthday party of mutual friends and and and I had to follow him around at the party we would talk in one group and he'd meander off and I'd have to go and see him again and and then he'd meander off again so eventually I I and then he left and so I got his phone number and called him a couple days later and you know waiting the proper amount of time and and I didn't get that book so anyway I eventually asked him out it turned out he was dating someone else so I had to wait for for that to end and then the minute that did I pounced and we've we've been together ever since we went on a on a date which actually coincides since we're in a historic place it coincides with the resignation it was the anniversary of the resignation of Richard Nixon from the presidency and that's why as a historian if I can always remember when we when our anniversary is but you know it we you know we brought the lawsuit I brought the I got involved in the lawsuit because I love Vic more than anything else he's the person that I fell in love with when I first met him he's the person that I've loved over the last 17 and a half years he's the person I want to spend the rest of my life with and he's the person I want to marry and from my part of it that for the lawsuit I could take it or leave it when we started this that's that was pretty much my attitude then I can't take or leave him I'm I I will take him and that's that and anything that I can do to maintain that certainly but when we first started this there was there's a lot of angst and the angst wasn't necessarily from my side of the uh so to explain a bit uh real fast I was in the military most of you know that you heard the intro when I was in the military I was that was a different world it was a different environment it wasn't it wasn't what it even what it is now and when I left the military I left that behind and I I promised myself and I didn't I have that when I left the military that second life would go away and I would just have one life and that one life would involve him and that's that's all I needed and when when this all started after the Windsor decision Mark had talked to Frank Stinger who was a friend of his where they can go up and they've been friends for 20 years I've got more than that maybe how old is Frank anyway um crap recorded anyway uh so they've been friends for a long time they talked about the Windsor decision and how someone in Texas should do something and gosh if only somebody could do something but that would require a pretty substantial commitment from from a law firm from the plaintiffs etc and we weren't in it at that point it was just a discussion that somebody should do something and Frank actually took that back to his group they can dump Barry Chasnov took it to the the board the board said hey let's do this and then they started looking for plaintiffs and the Frank called back and said yeah all we have to do is find plaintiffs any idea where we could find plaintiffs that maybe one of them might be a veteran one of them might be a lawyer so and we only thought about it and I was okay with it and I I could take it or leave it frankly because it really wasn't it wasn't a decision that I was making it was a decision that if he was going to do this with me we would do it and if he didn't want to do it then we weren't going to do it and and that was it it wasn't there was nothing else to it and so we talked about it and many times we said yes someone should do this thing and so we yes we're on board with it and then the reality of what that would involve hits you're not yourself anymore there's all the people there's everyone knows your life and the hope of having that quiet in the closet that's gone and so with those realizations maybe not my office awesome great folks but my office isn't as conservative as Marx and that is a very important point so that made that was a big driver I mean we had all kinds of fears from security fears you know and all you have to do is see in the news from last June when I think it was June when a lone gunman attacked the synagogue in Kansas City to to reinforce in your mind that it only takes one nut and and then you see that a bill is or an attempt to have a ballot initiative in California by a lawyer that filed the fee and that wants literally the citizens to vote whether or not gays and lesbians should be put to death so you know when you know that there are people out there with those positions that that immediately is internalized me that makes me worry that we're a little too out there we've received from and thankfully they were all they were all good but we've received about seven or eight letters from different people at state pens across the state address to the house to my yeah to our house to me and and you know asking for legal advice and a couple of them I'm ill equipped for that a corporate lawyer doesn't know how to help anyone out of a pen much better all the way around yeah a couple of them wanted me to introduce them to some of my friends which I'm not inclined to do and and then a couple I have no idea what in the world the letters were saying so but in any event they were not they were not threatening so in in general it's it's we've had a lot of fears both with job and with security and with a whole slew and and thankfully none of that's come to pass and one thing I'll say is that and people when when you're a real person you are all here and I can see you here and so when you express your opinions I can see you doing that but when you're not a real person when you're a name on a blog for example or an email or an anonymous tip that was where the majority of negativity that we saw came from and the thing that I found the most reassuring about that entire process wasn't that we had negative people it was that the number of negative people was counterbalanced by the number of positive people and in almost every case every negative opinion was beaten down by the number of people saying you know dude you are you're off base whatever you're seeing is you need to go to a closet and work it out yeah we learned not to read the comments to articles yeah usually good yeah and boys you know this is all kind of against a backdrop of you on Texas of course in 2005 had a ballot initiative data constitutional amendment bathing same sex marriage a lot has happened over the last decade it still is a in a conservative state like Texas still a a hot issue particularly with the legislative legislature we have right now and so you know it's commonplace to see a lot of different political groups phalamicous briefs but the thing that for me was different about the amicus brief that you wrote was on behalf of a group of history professors talk about why the group of history professors were involved and and really what the the direction of the amicus brief was okay well first of all you're giving me a little bit too much credit for it because it was written mostly by Nancy Codd who's a wonderful history professor at Harvard and her her specialty is social history a particular history of marriage and there were 19 other professors from around the country including one from the University of Texas that specialized in the history of marriage and they had filed this brief in some of the other federal cases that were challenging same sex marriage state bans and Danny Ramon who is another one of our law partners sitting in the audience back there they I believe they asked you didn't they to help with with with the brief at the in the Texas case at the Fifth Circuit and I kind of took over the project I think Danny was busier than I was but what I did and any value I added to it was to tailor it to the arguments that the state of Texas was making and the the first thing I did was go back and look at the old miscegenation cases that Texas like at one point virtually every state in the union had statutes banning interracial marriage and those statutes were periodically challenged um and in Texas the main case was a 19th century case um which upheld the anti miscegenation laws but the arguments that the state made in that case were virtually identical to the ones they're making now I mean almost word for word um and it was it was just astounding so I added a section of the briefs voice voice what are those arguments well there's there's a bunch of them the first ones are the the brief starts out with in 2005 76 percent of the voters of the state of Texas defined marriage as between a man and a woman well of course that they leave out that that was based on seven a 17 percent voter turnout so that 76 percent of 17 percent the the 19th century case on the anti miscegenation laws started out with almost the same thing it said it is pointless to count the innumerable laws that incorporate the concept that has long been upheld by the citizens of Texas that that marriage between whites and blacks should not occur and this going down the list one of the more one of the more galling arguments was the ban on same-sex marriage is not unconstitutional because it affects everyone equally everyone has the right to marry somebody of the opposite sex therefore it's not discriminatory the same point was made in the 19th century case I mean it's just eerie how you can go down the list and they're all exactly the same arguments it's interesting that mark said that he did this for love because the to encapsulate the main argument that Texas is making now love is not enough marriage is a subsidy an economic subsidy and a social subsidy that the state has a discretion to give two couples that it thinks are adding something to the value of society and heterosexual couples reproduce marriage fosters a stable home to raise a child so the state can prefer them over same-sex couples that by definition don't reproduce but my understanding was that the one of the plaintiffs was sitting not too far from the attorney when he was making the argument to the fifth circuit and she's obviously with child so the judges can kind of the the responsible procreation argument was my favorite part of writing about this story because it it just fails on its face that there are several things that just on its face make no sense so we don't prohibit infertile couples for marrying we don't prohibit the elderly from marrying we would never dare to say that their unions are not beneficial to the state and yet somehow this was different in this case and it was also really striking to me again when the Solicitor General went before the fifth circuit in in January what Boyce was referring to that he's on the one hand making the case that the children of Texas need the stability of a two-parent home but somehow that only applies to the children of straight people and not of gay people there are 19,000 children in Texas being raised by gays and lesbians and gays and lesbians have children either via adoption or through surrogates or other other means and so to literally sit there and deny fact with one of the plaintiffs sitting there 15 feet away was really remarkable clearly showing by the way yeah and an interesting thing about Nicole and Cleo is that they actually before they had their first child they actually went to Massachusetts to get married so that they would have their first child in a marriage and and the other interesting thing about Texas's position and before the fifth circuit was they and in their briefs they have the ability to argue that it's about procreation and love that it's it's a combined principle they don't argue that though it's purely procreation and has nothing to do with love and it it is the oddest argument i think i've ever heard and the and certainly the least persuasive um they would have gotten a lot further it seems to me if they were to argue that it was procreation and love and you had to have both of those but but again they didn't do that and as our lawyer neil lane with achon gum said when he was uh at the lectern argued before the fifth circuit he pointed out that if there was anyone redefining marriage it was the state not us it was a wreck it was a redefinition that few people if anyone would recognize these days and i wish you could have been there i mean just the visual it was an experience for me having not been in that kind of a situation before but the justices were very they were intent on getting the information they asked questions of both sides they really were interested in the case and that i personally found gratifying but each of them has their own mannerisms and majority of them are fairly laid back fairly quiet they they make their decisions they sorry my hands um they they asked the questions and so forth but uh they they do so kind of like you know just like we're having a conversation and when the uh solicitor general stood up and said that marriage is not about love all three of them leaned in and all three of them had the look on their face of they could not have been more surprised if he'd pull the tap dancing squid out of his briefcase it was just astonishing the way that they reacted to his argument as well and and and this is the fifth circuit court of appeals which is widely regarded as as one of the most if not the most conservative court of appeals federal court of appeals in in the country and and actually um you know i i wasn't there but by most accounts both in your article ban but by people where they were there um they were were pretty uh they grilled uh this the solicitor general pretty darn well uh you know especially over this this whole notion of responsible uh or responsible procreation exactly it was fun to watch but point out that may be a little bit kind of counterintuitive to what may be in the best interest of children in the state and wasn't it maybe you remember better than i do wasn't it higginbotham who who made the comment that you don't have to have incentives to have sex yes you don't have to pay people it's to that point you know that the notion that heterosexuals should benefit from the fact that they can have casual sex and accidental children but the gays and lesbians who have to go to great lengths to create a child within a relationship should be penalized uh it just every aspect of it was was rather ironic higginbotham's questions were i don't know if they were surprising but he he's 76 he's from alabama he was appointed um by reagan and he's he has a reputation for being a a reason conservative but his his his questions indicated that he was very sympathetic to the plaintiffs very sympathetic and then the other two members of the panel uh was judge graves who was an obama appointee um and then jerry smith who i believe is also a reagan appointee or a bush one appointee and he is he is best known as one of the most social uh most conservative judges in the panel especially on social issues so and his i think he only asked a few questions and they were directed at why the federal government has the the authority to redefine what has traditionally been a state issue i'll just add one other thing higginbotham himself an alabama native drew a parallel between this and the civil rights movement it was a really powerful moment when because there were three states arguing their same-sex marriage cases that day so uh louisiana mississippi and texas and so i believe it was during mississippi's case their attorney general was speaking and he said something in response to you know something about a same-sex marriage being legalized at some point in mississippi in the future and he said something to the effect of i don't know when mississippi will be ready i'm not i'm i'm not getting that quite right but something to that effect and higginbotham said in this very regal way we've heard those words when will mississippi be ready in these halls before and and everybody knew what that meant and it was really powerful it's very powerful the the with i think only maybe two exceptions every federal court that's looked at this issue um has has struck down state court bans and the supreme court was willing to let that process continue um because they refused to take one of these early on which surprised everyone but they're they would rather not have to exercise their authority on this unless they're forced to when they were forced to in the sixth circuit in a two to one decision was the first appellate court that reached a contrary conclusion at that point the supreme court had to act because clearly you can't have a constitutional right to same-sex marriage in some states but on others that just that wouldn't do so that's that's why they took the case but they took it with some reticence i think but but and the only thing i'll add to that is what's interesting is the sixth circuit was i think put their decision on hold they took the longest to issue a decision they put their decision on hold while there were certs on appeal by uh before the supreme court for various states and the supreme court in in october denied those certs and allowed the states to be lifted so that in all those various states including my home state of oklahoma same-sex marriages are now allowed to occur which baffles me beyond belief that oklahoma is ahead of anything um but oklahoma so you know you you yeah by the as an aside i was told by my lawyers never ever to tell anyone that i have season tickets to oklahoma football but uh you know the interesting thing about this six circuits decision is it came after the supreme court denied cert from all those states and what's baffling is how could the sixth circuit not get a hint you know how did they miss that signal um and i i think um they just could not in their own minds get there regardless of i think they have to know how the supreme court's gonna rule but i think they just refuse to to write that opinion themselves the the the odd thing is apparently they wanted to go on record as as being opposed to this and i think the vast majority of judges do not because they don't want to be on the wrong side of history one of the cases we cited in samica's brief is peres v smith it's a 1948 um california supreme court decision and it's the first um state supreme court decision striking down the um anti-miscegenation laws and one of the justices who i think is the longest serving in history the longest serving member of the california supreme court very um august career all sorts of first very very well respected he dissented and if you google him now the first thing that comes up is that dissent his entire 40 year career he's known for that dissent and judges are aware of that sort of thing they aware of how they're aware of how history will judge them they don't want to be on the wrong side of this issue um and i think that that's guiding i think that's guiding some of them um boys let me ask you a question of the audience real quickly because you've mentioned amicus briefs a couple times does everyone know what amicus brief is because if not i mean yeah i'm sorry i'm i'm i'm used to talking to other lawyers and i forget that sometimes people don't understand what i'm talking about um it's a friend of the court brief that somebody with an interest in the outcome of the case can file a brief to help the court not reach the right decision support one of my favorite amicus briefs filed uh on along with the plaintiffs was filed by a number of fortune 500 companies who want to see these laws change in texas they want to do business in texas um and it would that was fascinating to me to read that that was pretty awesome actually good business a phase in 90 percent i think fortune 500 countries uh companies have have anti-discrimination policies so business is spoken i think on the issue and and and looking at the fifth circuit case and then also looking at uh the sixth circuit giving the uh stream court with this opportunity to uh or or whether it's an opportunity is a euphemism or whether that being forced to actually rule on the issue um one of the things i want to ask the panel you know uh you know obviously the same-sex marriage cases are are one issue um that that that faces the uh homosexual community right now um talk a little bit about you know where where does that issue fit with the larger issue because one of the things that that really struck me but being a lawyer but also just um being a human being um is in in the article Pam you mentioned that you know if the fifth circuit um rules in favor of uh uh the plaintiffs and if the stream court obviously um strikes down uh bands on uh same-sex marriage you could have a situation where you legally be able to get married but you could still from a civil rights perspective get fired from your job yeah i mean i'll the the movement um as as two people somewhat involved in the movement i can say it's not over when the supreme court rules in in june i mean there's really uh in my opinion no chance absent of death on the supreme court there's no chance the supreme courts uh gonna uphold a ban on same-sex marriage but what what will happen is someone in texas literally um uh could go get married on a on a saturday or sunday return to work on monday announce that they they're married unless they're in one of the cities that provide protection could be then be fired uh for having gotten married or be fired uh because the employer now finds out that uh they're gay and that's an under under state law that's under state law under 20 that was the very thing we were worried about when we started this because it's one thing to file the suit and even if the suit plays itself out even when the suit is long gone we still have to work and you know i like what i do he likes what he does i think we do a good job at it and the folks seem to appreciate it but we can't do it if every employer we go to says oh gay what 29 states have no protection um for um for gay people and title seven title seven is the federal law that prevents discrimination in employment um but it does so based on specific categories including race gender national origin um ethnicity religion not including sexual orientation um and the the law the title seven law on lgbt people has become very strange in that courts courts have not found uniformly not found protections for people based just on their sexual orientations but since gender is one of the categories if you fail to conform to gender stereotypes then you are protected so courts have ruled that men who dress like women or wear makeup or wear women's jewelry are protected and um women who dress like men or come to work in biker gear are protected but people in the middle are not protect gay people in the middle are not protected and that's a very kind of strange situation for the law to be in and in a couple and there's a couple of district courts have ruled and i don't think any circuit courts have ruled on this yet but in states where well in states where there is no protection um but someone gets married in another state and comes back so say somebody gets married in massachusetts comes back to texas um and they're fired and then they sue and at least a couple of courts have held that being married to somebody of your same sex is a failure to conform with gender stereotypes and therefore is protected under title seven but the next general step i think and you may have been about to say this is to get into past which is the employment one month non-discrimination act um which is it been trying to be past your congress for a while now there's not much chance in the current congress and it's going to go through it'll have to wait to some future date and the other possibility is for the um well it actually there needs to be legislation i was going to say a supreme court decision that finds that gay people are are a member of a suspect class which increases the protection of the equal rights um um under the equal protection clause um but that probably wouldn't be good enough to protect people from from private employer discrimination so inda really needs to be passed at some point and and that's a very key point because that actually ties in very nicely to the case currently before the supreme court and it and it and it ties into how the vote comes out there are two issues before the supreme court there's a recognition issue and then there's a rights issue the recognition issue is the recognition of an out-of-state marriage in in another state and the rights issue is whether or not vic and i unmarried have the right to be married in the state of texas so those those are really the two issues before the supreme court there's a a lot of speculation going on about how the vote will come out on the supreme court and and uh it is viewed that the recognition issue is more likely to get more votes than the rights issue that it's potentially possible you could get a seven to vote on on uh the recognition issue and not on the rights issue that at best you'll get a six three vote maybe uh most likely as a five four and how the vote turns out is very important because roberts as the chief justice gets to determine who writes the opinion as long as he's in the majority if he's not in the majority the net the senior person in the majority gets to determine and so there's a lot of speculation i personally believe that roberts is going to join the majority so that he gets to write the opinion so that he gets to write it in as narrow way as possible so that you do not have a decision coming out of the supreme court that has heightened scrutiny of other actions going forward that's that's my fear in some ways i'd prefer that we stick with a five four decision because a kennedy decision will probably be a little broader and a little more protective uh going forward so that's um you know that's kind of what's going on in the background and for those of you that don't get that part suspect class basically that means that if we want it if the state wants to discriminate against you they can either just discriminate against you just flat out and say no we have a we have an overwriting game we have an interest in this particular outcome rational we yeah the rational basis we don't have to prove why we have an interest we just have to say that we have an interest and that's that's pretty much it it's basically because i said so and the next level up they have to actually prove the heightened scrutiny levels that's where they have to actually say okay we don't actually have a rational reason for it but we have this very specific thing that we're trying to get across that's that's why we're cutting all of you people out of something because there really is a state interest and now i'm going to prove that the state has this special interest where they didn't have to prove it before um chris of all time um how do i mean and and this is i think it's just i think we pretty much all agree that um how do you see the the fifth circuit um ruling coming out and and how do you see the uh the string court ruling and and with with acknowledgement the stream court ruling could effectively mood out the uh the text court ruling i think everyone who is there for oral arguments before the fifth circuit thinks it'll be a two one vote overturning the state bans um and for more details you can read my article to explain but uh but i what's frustrating is we don't know if the fifth circuit is going to rule before the supreme court takes this up or not and i was just uh saying before we started i get these email um announcements every time they hand down a decision and it's always this heart stopping moment in my day and then oh it's not there so i don't know if they'll wait for the supreme court or not i think that'll be really interesting to see the easy way out would just be for them to punt and wait but based on the passion with which higginbothan ask his questions i think they're gonna rule well that didn't yeah well i mean we i i mean it's all a guess everyone's reading tea leaves i mean i certainly think they're going to rule there is there was a case on the monday before our hearing on abortion and that case has not yet been issued the decision has not yet been issued in that either um the fourth circuit and the tenth circuit took two and a half months to issue their decision we are just as of last friday and i'm counting we're at two months uh this friday you know we're getting closer obviously next friday we'll be at uh two and a half uh mine so that's been the the time frame for most of the decisions um considering that the abortion case hasn't uh been issued yet it would indicate that in that's a different panel but it would it would indicate that they're going slow and that doesn't necessarily mean they're sitting on it they could be we have no idea but but it doesn't necessarily mean that or it would be oral arguments or before the supreme court in about a month would be very powerful obviously to have that decision come down before then from such a conservative court yeah but regardless of where the decision comes from it's also really kind of important to understand that a decision that comes down is going to change things that is true it's going to change the legal landscape certainly but it's not going to change people people are still going to be people and i think that one of the things that's really influenced this whole case set of cases issue the most is that people have gotten to know their neighbors they've gotten to know their friends they've gotten to know their cousins their uncles aunts whomever they've gotten to know these people who were previously demonized they know that they're not these horrible people that whoever is in power has painted them as and so they know that that's not the case anymore when the law changes that's the only thing that changes it doesn't change the people they have to change inside themselves but what the law will do it will it will allow us to be public about who we are without having to worry as much does it mean that we're going to walk down the streets of Dallas hand in hand who would feel safe with that things will still have to change we've clearly not been public up to this point so uh the only thing the only thing i'll also point out in terms of the timing from the fifth circuit is is uh the former attorney general uh as well as uh uh us have asked the fifth circuit to go ahead and rule both that so that both sides have asked the fifth circuit not to sit on it and to issue a decision to influence the supreme court so i think that helps weigh in in favor as as well that uh the fifth circuit will rule mark you touched on something i want to follow up on and and you mentioned the sick i think the uh either fifth or sixth or just heard a case on abortion which raises an interesting question assuming that the fifth circuit and supreme court rulings come out the way that i think all of us think it's going to do you think in terms of of politics and in terms of of what i would call kind of legislative activism do you think um uh a a constitutional right to same-sex marriage do you think it will go the way of the anti-misogynation rulings and where society just says well hey we're ready for what it makes sense or do you think we'll see what we saw on in the aftermath of roe v wade where you see social conservatives chip away and critic chip away and and try to almost do an end around against the constitutional um uh uh arguments i mean that that's a very good question uh and and i believe and and obviously certainly hope that uh that the the historical precedent is how everyone reacted after loving v virginia and and they'll accept interrelational marriages uh uh they'll accept same-sex marriages just like they accepted interracial marriages and will move on and i pretty much think if you look at the polling uh now that's where we are we've got across the country the nationally it's 60 percent uh or more now support same-sex marriages even in texas and this is uh an outdated poll but it was uh more than a year ago um it's a texas tech poll and it was a plurality of texans supported um same-sex marriage and i just think as as as we go forward and and everyone uh sees couples and meets couples who are married and and um you know they i mean the simple fact of the matter is not one married couple is going to get a divorce because vick and i can get married not one engaged couple is going to uh uh call it off the market right i mean it's it's going to have it has no impact on anyone else i mean vick and i are a couple now that doesn't affect anyone else and the fact that we are married and get all the rights and benefits and recognition that everyone else gets um will have no impact on anyone else so i i i just simply do not see it i think we have an example though i mean it's we can guess i suppose but uh so when i retired from the military seven days before i retired that's when they signed the repeal for don't ask don't tell and i remember that that whole year there was a lot of prep work the the military was getting people ready this is gonna happen and there's a lot of education that went into it this is the policy this is how things are gonna work out and there was so much angst about when this thing happens now there's gonna be all kinds of bizarreity in locker rooms and what's gonna happen on the front lines and nobody's gonna know who to trust anymore and it never happened none of it not one bit of it people who acted inappropriately were treated for exactly the same way that people who act inappropriately would be treat or be kind of be treated rather and none of the things that they said would come to pass did it was a lot of worry it was a lot of angst but it was for nothing because when the thing actually happened everyone went on with their lives i i agree that from a social perspective i think it's going to be like loving v virginia which is the spring court decision that struck down the remaining anti-miscegenation laws in the 13 states that still had them sadly including texas texas kind of always brings up the rear it looks like um and because the tipping point you know has been reached in society it's it's you can't watch a show on television now without seeing a gay person um and the nfl threatened to pull the superbowl from arizona if they passed the law allowing discrimination against against gay people but but what arizona the law that arizona was suggesting that the governor said she would veto that so far is the reaction by social conservatives it's to it's to use the first amendment's free exercise of religion clause as a a weapon to push back the anti-discrimination laws it's pitting the equal protection clause against of the 14th amendment against the first amendment um and the examples they use we don't want any anti-discrimination laws to force a catholic church to hire a transvestite i mean of course the extreme examples but they the argument is it is it is important to protect religious beliefs and many religious beliefs do not accept homosexuality open homosexuality gay marriage um therefore we're going to pass these state laws that protect those beliefs and allow people to decline to allow a baker to decline to make a wedding cake for a same-sex marriage and it it's kind of the it's kind of the same argument that it's a it's a step beyond actually the argument that carried the day in the hobby lobby decision the supreme court decision from last year i suppose it said that hobby lobby even though it's a corporation could opt out of health care provisions that required providing insurance coverage for various birth control things um so that's going to be i think of the battleground you can already see that it's already happening it's happening in our legislature right now it is session has been pretty interesting on the subject pamm i have a i have a quick kind of final question for you before we open up for a few uh questions um you know focusing once again on your story when you sat down and and thing i i i love about um i think you described yourself as a unabashed uh lover of long-form journalism which which i think is is terrific um and speak of long-form journalism and and being able to really get into a story um did this end up being the story that you originally set out right no um which it never is but uh i'm i love legal stories and i was fascinated with the legal arguments and i thought that um writing about the plaintiffs would be obviously part of the story but uh that it would really be a legal drama um and i think what the story ended up being though part of it is a legal drama is a love story and it's a love story between two women who um don't have the same civil rights as i do and don't have the same ability to have a lot of the freedoms that i do and that was really um very upsetting to to really think about especially as i got to know nicole and clio more and i thought more and more about the gay and lesbian friends who i parent beside and who i'm friends with whose lives i thought i understood and i really didn't and um so hopefully the story addresses that yeah i think it's wonderfully uh can i come up two quick points you said that you remember your anniversary because it's on the date that uh that nixon resigned i remember mine with my partner tom because we met on the 100th anniversary of the hurricane that destroyed galveston and the what's with his disasters you could read a lot of it and the other quick point is somebody before i came asked if we were going to have anybody to represent the con position on same-sex marriage and i said well i don't think so so um i will i will uh mention a new yorker cartoon from a couple of years ago to represent the con position it showed um a woman at a breakfast table and her husband who's looking very grumpy and just kind of sitting like this and she's reading the paper and saying i oppose same-sex marriage because those people have just suffered enough that's awesome and with that uh anyone in the audience have any questions that they'd like to eat and i asked them or is everyone just really really ready to get to the board um the thing that's sort of really interested me about the court cases and the progress of same-sex marriage and the courts is and it's all happened with the courts and then pretty much a legal process by which this has happened and the lawyers have really driven the show in this and because of that um the same-sex performance that prevailed because it turns out that they have the stronger legal arguments um and what's been really striking to me is the legal arguments on the anti-nurage society have just completely collapsed along the way i mean the thing about the circuit argument that really i was really kind of surprised when i read the the dailies about uh the subsidy argument uh that said texas was they were surprised it was just really i mean yeah it's like that's what you got i mean you know like it's sort of like a card game and that's sort of like like came down to and the thing is is that you know like that's the legal arguments it turns out that the legal arguments are really weak because the the aspiration for the opposition to the same-sex marriage is not coming from laws coming from social traditions specifically from religion and that of course within the court system you can't make the legal argument based on your religious beliefs and you know like as much as i'm personally happy the cases have been going this way i have to say that i'm not i think that the good you know like that's a good question about whether or not the result of the supreme court decision is going to be more like loving or it's going to be more like row and i would like it to be like more like loving that i'm not sure that that's going to happen because there's um there's some social religious beliefs that are tied up with the um opposition to the same-sex marriage that the court cases are not going to grasp and so these are more sort of observations i'm just sort of like that i'm curious to hear from particularly the main people on the panel why you think you know like why you think if you agree with that assessment the the opposition the legal opposition fell apart so quickly because they couldn't bring up religion and how you and the second part of the question would be how you think this very legal secular decision that it comes down from the supreme court will be accepted by people through this basis for their opposition to same-sex marriage comes from religion um the your your your second point is is an interesting one uh justice ginsburg who is one of the um the the four you know liberal considered liberal members of the court in public comments she has she has said that it would have been possibly better in retrospect and i i don't want to put words in her mouth but the thought was if the supreme court had not decided rovey wade the states looked like they were going in the direction of loosening restrictions on abortion themselves some had already done so others were kind of moving in that direction and it wasn't it's it's become a big evangelical issue a protestant issue and then it kind of wasn't um and that's happened after uh the decision of rovey wade and it's become this huge political issue and i think and this is maybe just me maybe other people agree that one of the reasons the court didn't take this case when all of the court's appeals were lining up and agreeing was to kind of avoid that to step back and not and not not make a ruling on this but now they have to um and that's that is a good question is it going to cause a backlash um because society is the we've i think we've reached the tipping point society is moving toward acceptance but this might cause a little bit of a of a backlash i don't know it may not that's that'll be an interesting it'll be a very interesting question and the reason that the reason to your other point the the reason they the religious arguments can't really be made here is because of the two religion clauses the free exercise and the establishment clause and if you argue that we're doing this this statue banning same-sex marriage we're doing because the bible tells us so then that immediately runs afoul of the establishment clause are you surprised frankly yes um it was hard to argue with equal protection clause yeah yeah but they they just it was really like there's like phoning it in and we know we've lost this and here's these arguments we have to make so see you yes sir the nature of the arguments no they they knew they knew even then not to fall into the establishment clause trap the the the best survey of those arguments is in the dissent in that california supreme court decision i was telling you about peres b smith 1948 and the that judge is very accomplished was a brilliant jurist and and explained all the arguments and when we go back and read them now he he one of the arguments was based on biology like the state is making now that you know doesn't biology itself teaches that the races are separate and should remain separate and they have always been separate and nothing like this has ever happened before and these the mixing of the races has you know been illegal for forever and ever and ever and tradition is a big part of the big part of the argument um and and children there was an argument that you know why would you do this to these the children that would be products of these you know unnatural marriages because they would be you know they would be different from everyone else and they would be discriminated against and you were giving them horrible lives and why would you even consider doing that and the worst thing of all the most shocking to somebody from a perspective of 2015 um they relied on eugenics studies from the early part of the last century which are just horrifying uh and the california the main reason the california statue was passed was not california didn't have the history of slavery and didn't have at that time the early part of the century when these laws were passed didn't have a large black population they had a large asian population and that's what california was trying to prevent was was marriages between asians and and anglos i think we have time probably for one quick question and then i want to invite all of our uh uh panelists to uh join everyone else for a uh a reception where hopefully uh the discussion can continue um but so one more hand and it's pretty much within the movement it's odd but the state has been left out like nobody's even looking or asking of the state of anything relating to this but eventually if we talk about protection for our jobs and said oh we will have to depend on the state's legislatures and legislative movements somewhere all right can we just like depend on it at all or is the the the current one i don't think we can depend on it depends what you're depending on before they there there was a there was a celebration i guess week before last um at the capitol with a with a pink cake and celebrated the tenth anniversary of the um of the ban on same sex marriage in texas and they celebrated the day they voted away civil rights yeah who does that and there were of course speeches about how same sex marriage was would destroy the fabric of society and was more dangerous than terrorism and would end civilization as as we we know it and there's a famous quote about uh that no man woman or child is safe the 135 days that detects the legislatures in session um and and that was said a long time ago before this one i think you know this is one of those issues where um like i think a lot of issues where um a legislature uh can do more good by just getting out of the way um than than anything else um uh having said that i want to thank each and every one of you for being part of this i want to thank mark and vick especially for coming down from this thank you