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Analysis of Prop 8 Ruling

February 7, 2012 1 p.m.


Paul Katami and Jeff Zarillo are two of the plaintiffs in the Prop 8 trial.

Mattheus Stephens is a civil trial lawyer who has more than a dozen years experience in LGBT law, he is a lecturer in Constitutional Law at UC San Diego

Charles LiMandri, was general counsel for National Organization for Marriage, his law office is in Rancho Santa Fe.

Related Story: Analysis: Prop 8 Ruled Unconstitutional


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

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CAVANAUGH: A federal appeals court upheld a ruling that struck down California's ban -- same-sex marriage. The 3-judge panel's decision affirmed the unconstitutionality of prop eight. But the fact that it was a two to one decision may lead to complication in the debate. Paul Katami and Jeff Zarillo, two of the plaintiffs in the prop eight trial. Welcome to the show.

KATAMI: Thank you for having us.

CAVANAUGH: Now, you both recently spoke at a news conference after the decision was announced. Paul, can you tell no a little bit. What you said?

KATAMI: Sure. I just was so happy about the affirmation that the proposition eight is unconstitutional for many reasons, but primarily because it strips away the rights of Americans and Californians. So I went back to being a kid, and growing up here in San Francisco, and being gay, and hiding who I was because of the Fremont that the LGBT community most often suffers from. And today is a day where I can be proud to be gay, and standing next to Jeff, and know that we will be married and treated equally. That our fundamental rights are recognized

CAVANAUGH: What has this prop eight legal journey been like for you?

STEPHENS: It's been a long process. You know, we're two and a half years in from what we first had our press conference about this. We wouldn't trade this system and America for anything in the world. So we just have to let it play out and be patient. We feel like we're not only on the right side of the law, but on the right side of history. We'll be fine.

CAVANAUGH: I heard 1 of your attorneys, Ted Olson, speaking at this conference. He sounded quite jubilant. That the mood around the courthouse?

KATAMI: Absolutely. This is Paul. We are so happy. The team has done an outstanding job. Other plaintiffs in the case are with us, with their sons. And we're just overjoyed. There was a moment of silence, and someone said why are we being so silent! It's because of the wet of the situation, this is our lives we're talking about,s one of the most important things we've ever done. Today is a new step forward to that full equality.

CAVANAUGH: We're gonna be talking about the possibility of more legal battles ahead for prop eight. And I'm just wondering if you and Paul are ready for the legal battles that lie ahead.

STEPHENS: We certainly are. With the thorough record in we've put together, we had -- and we've got an amazing legal team. And I would be very confident going up against any other attorneys in any other court with them.

CAVANAUGH: Thanks so much for speaking with us.

KATAMI: Thank you for having us.

STEPHENS: Thank you.

CAVANAUGH: My guests in studio, Matt Stevens is a civil trial lawyer who has more than a dozen years experience in LGBT law.

KATAMI: Thank you having us.

CAVANAUGH: General counsel for national organization for marriage. Thanks so much for coming in

STEPHENS: Good to be with you.

CAVANAUGH: What do you think is the most significant language in this rule something

KATAMI: I think as David and Jeff alluded to, the most significant language is the equality that they now share with all Californians, and they did a nice job in emphasizing how important that was and stating that there is no legitimate reason for proposition eight.

CAVANAUGH: As I said during this press conference, Ted Olson, one of the lead attorneys for the plaintiffs against prop eight called this a very important, very many significant legal decision. Would you agree?

KATAMI: Absolute. I think the Court took greater care in crafting the opinion to make it solid, to insulate it from the appeals that no doubt will come, but will not have a foundation, and largely for the reasons that David and Jeff already said.

CAVANAUGH: You no, Charles, since this was a two to one decision from a tree-judge panel, do you think that this ruling should be considered significant?

STEPHENS: Significant only in the sense that it's a weigh station on the way to the United States Supreme Court. We all knew that this would not be the last stop for this issue. And I don't consider it all that significant when you weigh it up against every other federal appellate court and state appellate court that has addressed the issue as it applies to the constitution, and have uniformly held that of course this is an irrational basis between distinguishing between gay and heterosexual couples. To say there's no legitimate reason for prop eight when people have recognized that the coming together of men and women in marriage to produce children, which are the gnarl product of thirds requirement conjugal union, to say that that is insignificant or irrational or not a legitimate basis, defies logic.

CAVANAUGH: So it sounds as if the idea that the wording of insignificant and nonrational basis to make this is the kind of thing that really sticks out to you.

STEPHENS: Well, and the flip side of that is, because the Court found there was no rational basis to quote them, they say prop eight enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class. Nothing could be farther from the truth. We have 63 million Americans in 31 states who have ruled on this. Most of them probably have family and friends that are gay. We are not taking a stand on their worth and dignity. Their worth and dignity is every bit as valuable as our worth is dignity. I would not put myselfabove them in that regard. We're talking about preserving an institution that we feel is vital for society.

CAVANAUGH: Does this decision rendered by the panel of the ninth circuit mean that same-sex couples in California will be able to marry again? Soon?

KATAMI: It does, pending any stays or appeals. But the Court's got to grant a stay. If the Court doesn't grant a stay or there's no rehearing sought, within 21 days, David and Jeff can celebrate a marriage.

CAVANAUGH: And can you give us a brief rundown of the legal history of prop eight? Same-sex marriage was first approved by the California Supreme Court then prop eight was approved by voters to ban gay major. Matt, how did this wind up in federal court?

KATAMI: The way it wound up in federal court is the plaintiffs saw a marriage license that was denied. So they went to the federal courthouse, walked across the street from the state courthouse to have the law declared uninstitutional under the 14th amendment, which guarantees equal protection to all citizens.

CAVANAUGH: I see. And so from that point on it's been a federal matter. But didn't it go back to the state courts about the issue of stand something

KATAMI: There was an issue of standing that was raised because the government agencies refused to support the law, recognizing that it bred inequality.

CAVANAUGH: The state government agencies did not defendant prop a lot in federal court, and therefore the defendants are at this point?

KATAMI: That's correct Tthe defendants are the private citizens, who, by the way, are exactly the same people who brought you proposition 22 in 1999.

CAVANAUGH: Remind us?

KATAMI: It was the exact same language, but addressing foreign marriages, meaning marriages outside of California. So if you got married in Hawaii, proposition 22 would bar you from having that marriage recognized here in California.

CAVANAUGH: Charles, was your organization the national organization for marriage, involved in fighting to support prop eight, and if so, how so?

STEPHENS: Well, first of all, what happened was after the California Supreme Court overturned proposition 22, proposition eight was put on the ballot because we wanted to reaffirm what has always been recognized as the role of marriage, which is to provide a stable relationship for couples to raise their children. And so the national organization for marriage actually, even before the court struck down proposition 22, was working to get it on the ballot. And then proposition eight did pass. And it became part of the constitution of California that marriage would remain as 1 man and one woman. Before it went to the federal courts, the opponents of proposition eight tried to get the Californian Supreme Court to find proposition eight unconstitutional. The California Supreme Court which found proposition 22, which was only a law, but they Tuesday the people of California are the final say on what's institutional. So they upheld prop eight. So it has been a long history. After it was upheld by the California Supreme Court and the state constitution, that's when the opponents of prop eight said, fine, we'll go into federal court and challenge it under the federal constitution. That's what happened here.

CAVANAUGH: Right. Now, when you say the voters are the arbiters of what's constitution in California, California is still subject to the constitution of the and United States of America, including the bill of rights. I mean --

STEPHENS: That's correct. And the United States Supreme Court will be the final arbiter as to whether or not proposition eight truly does violate the federal constitution.

MAUREEN CAVANAUGH: And what legal options are available now? Do you see this going straight to the US Supreme Court or an appeal to the ninth circuit?

STEPHENS: The usual course is to do I petition for review on the ninth circuit panel of 11 justices. And if they take it, whichever side they rule against, presumably the losing party here it would definitely appeal to the US Supreme Court. It's possible in this particular context since we know that this is an important case that's going to end up with the US Supreme Court anyhow, that the parties will leap frog over the en banc panel and go right to the Supreme Court. I don't know what decision has been made in that regard.

CAVANAUGH: Now, our discussion here, gentlemen, has been very legal. And I appreciate that, because that's what it's supposed to be in height of this ruling today. We had to explain and clarify. But Matt, there are currently seven states that now Allah same-sex marriage. Is this an issue that has already been settled in public opinion?

KATAMI: I really do. I think that the federal and state court got this issue exactly right based on where middle America is. People are comfortable with recognizing same-sex couples and acknowledging that they are fully contributing to a better society. So the Court has not stepped out of a place where America is not. America is exactly where this court is, and by the way, we've had many Republican judges who have agreed exactly where the precise legal analysis because it's so transparent that this had no rational basis other than to make a set of our citizens a stranger toure laws and full dignity.

CAVANAUGH: Charles, many polls have shown us that prop eight would not pass if it was placed benefit California voters today. Do you think that public opinion has shifted away from your and your organization's position?

STEPHENS: Please. We have to look at the facts. We have had people vote in 31 states. In each case, even liberal, whether you states like California, Hawaii, Wisconsin, Maine, people have always voted to preserve traditional marriage. The polls show that at least it is somewhat evenly matched. But according to the polls, prop eight was supposed to lose when is it went to the ballot. People are afraid to even tell pollsters how they feel because of bullying that's been brought to bear to make people say they're going to vote one way on the issue. So the polls are not accurate. We know that from the election results.

CAVANAUGH: If the California legislature had approved same-sex marriage instead of the Courts deciding it, would that have made an to same-sex marriage?

STEPHENS: No. The legislature did try to pass laws saying that marriage would going to be between -- the law of California leave its in the hands of the voters if they want to have a referendum, and the California Supreme Court has upheld that. The legislature which is very liberal tried. And the people rejected it.

CAVANAUGH: It sounds as if there is almost 100% likelihood that there is an appeal, when it comes same-sex couples in California waiting, what is it? 21 days? Is it likely that there is going to be a stay of this particular decision if it is accepted by another legal body? A higher court, so to speak.

KATAMI: That's an important question. And based on the fashioning of this decision, there will not be a stay grant. Because the Court took a very narrow view of the interpretation of the question they were answering. So there is no reason under the rules for a stay. And the folks who want one are going to have to persuade the Court that a stay is necessary to address this important issue.

CAVANAUGH: The ongoing legal battle over proposition eight. I want to it thank you both for explaining it to us today. Matt Stevens is a civil trial lawyer, a lecturer in constitutional law the UC San Diego. And Charles is a San Diego attorney, formerly general counsel for the national organization for marriage.

STEPHENS: Thank you Maureen.

KATAMI: Thank you.