Ted Olson, former U.S. solicitor general, was joined by David Boies in a suit for same-sex couples, which ultimately overturned Prop 8.
Are we going to see a religious-freedom case before the court?
I suspect cases may be generated in different parts of the country with respect to the religious-freedom issues. I think those cases will percolate through the federal court system. Those cases will take a long time to get to the Supreme Court, and I think that the court will probably wait until it has a very compelling case to take.
Do you expect a backlash?
I think the backlash is going to be a lot less momentous than some people are predicting. The fact is that pretty much 60% of the American people accept marriage equality now. And something over 70% according to the polls of young people accept the rights of individuals to get married to the person they love, even if it is someone of the same sex. I think that major corporate employers have become reasonably supportive. Even more conservative political figures are trying to stay away from the issue, because they can read these polls just like everybody else can.
Could opposition to marriage equality hurt a presidential candidate?
Yes, I think so. In our Proposition 8 case, at that point there was about a 17-point differential in the polls, the majority opposing marriage equality. Now it is 15% to 16% in the other direction. That is a swing of 30 points by the American public in just six years. It is not just gay and lesbian people. It is friends of gay and lesbian people, relatives of gay and lesbian people. The American public is now seeing this as a matter of tolerance and liberty, and humanity and equality. I think that a candidate who comes out and says, “I am opposed to it,” and would try to change the outcome, will suffer a lot.
How important is public opinion for the Supreme Court justices?
I believe strongly that the court and the justices feel that they are making decisions strictly based on their understanding of the law. But as human beings, I don’t think it is possible to be immune from the knowledge that public opinion feels that this is the right answer — the right answer not just from the standpoint of emotion, but the right answer from the standpoint of whether it is legal or constitutional.
Do you think the entertainment industry had an influence on public opinion?
Absolutely. Films and TV have demonstrated that gays and lesbians are going through the same thing that the rest of us are.