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California's Prop 8 Set To Go Before Nation's Highest Court

March 25, 2013 1:42 p.m.

GUESTS:
Glenn Smith, Constitutional Law professor, California Western School of Law
Rev. Darryl Kistler, senior pastor, Kensington Community Church

Charles LiMandri, Freedom of Conscience Defense Fund

Related Story: California's Prop 8 Set To Go Before Nation's Highest Court

Transcript:

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.


MAUREEN CAVANAUGH: Supporters and opponents of same-sex marriage in San Diego wait for tomorrow Supreme Court arguments. This is KPBS Midday Edition. California's proposition eight and the federal Defense of marriage act will be argued before the justices this week. We will hear from two San Diego activists who are getting ready for rallies for and against same-sex marriage. A homeless teenager from San Diego captured the hearts of Academy Awards voters this year. We will meet Inocente and hear what her life is like after appearing in the award-winning documentary. And celebrated poet Billy Collins talks about his work and what it's like to be called America's most popular poet. I am Maureen Cavanaugh. KPBS Midday Edition is next. First the news. Rallies are planned as California's prop eight goes before the US Supreme Court and audiences got to know her as the girl with the painted face in the award winning documentary. We will meet Inocente Izucar. This is KPBS Midday Edition. I am Maureen Cavanaugh. It is Monday, March 25. Here are some of the San Diego stories we're following in the KPBS newsroom. Enrollment at California community colleges is at a record low. Officials say state budget cuts account for it. The city of Carlsbad votes tonight on controversial Query Creek housing development and the Jewish holiday of Passover will be celebrated around the county tonight. The eight-day festival begins at sundown. Listen for the latest news through the day right here on KPBS. The top story on Midday Edition, both supporters and opponents of proposition eight are gearing up for tomorrow's arguments before the US Supreme Court. California's ban on same-sex marriage will be argued before the justices Tuesday and Wednesday the court will hear from lawyers on the federal Defense of marriage act known as DOMA. In San Diego people will taking part in rallies both here and Washington DC. I spoke with two people participating in rallies. Rev. Darryl Kistler senior pastor of the Kensington community church, who will be at the steps of the Supreme Court in support of marriage equality for same-sex carpet couples. I spoke with him about his trip. Rev. Kistler thank you for speaking with me.

DARRYL KISTLER: Thank you for having me

MAUREEN CAVANAUGH: You will be leaving soon for Washington DC in support of marriage equality. What will you be doing to show your support.

DARRYL KISTLER: The main thing we will be doing is partnering with the human rights campaign they are united for marriage rally and prayer vigil. There are three major events that to stay and I will be participating in all three.

MAUREEN CAVANAUGH: And will you be holding signs or what will the rally be like?

DARRYL KISTLER: First everyone is asked to wear the color red on the Supreme Court steps we could be in solidarity with those who are lacking marriage equality rights at this moment and also I'll be taking a petition that my church's signing to deliver it to the Supreme Court in favor of marriage equality and civil rights for those Americans who are lacking that. And finally we are going to be doing a prayer vigil and that is probably the most powerful event that we are going to be taking place that morning.

MAUREEN CAVANAUGH: Now why do you feel strongly about this issue to make district in the nation's capital.

DARRYL KISTLER: Well this is really at the heart of what I believe being a person of faith and a person of integrity means in the United States. I mean, and also it's a very personal issue. I have friends I have family I have neighbors who are gay and lesbian who are in committed relationships who have families. Those who are opposed to equal marriage rights often say we are in favor of traditional marriage. These people are involved in traditional marriages. It is two people in a couple, they have families, they have a dog, they pay their taxes, yada yada yada. I feel very strongly that they deserve equal rights as being American citizens but more so as a person of faith, peace and justice equality inclusion I truly believe are at the heart of being a person of faith in the Christian tradition and as a Christian I have to admit, we have been the harshest critics of gay and lesbian people. So, as a Christian who is in favor of marriage equality I feel very strongly it's important that I stand up and be counted as those people, one of those people who are in favor of extending civil rights to these people who have been denied it purposely almost because of my tradition.

MAUREEN CAVANAUGH: You make that point, and you know of course that we have seen the election of a new Roman Catholic Pope recently who reportedly has strong moral convictions against same-sex marriages. Is this likely to remain an area of dispute among Christian denominations?

DARRYL KISTLER: You're asking me to look into my crystal ball 10, 20 years down the road. I think in the US are going to see a groundswell from the bottom up. Younger people are challenging the status quo of those leaders who are in opposition to equal marriage rights. I think it is the young people who are really going to make a difference, and American Christianity more an equal and inclusive place. Worldwide I think you're asking a much different question as cultures and societies are impacted and wrestling with this. I cannot really speak with a lot of integrity about that as someone who is not from one of those cultures but in the US I can see most denominations struggling and changing over the next couple decades.

MAUREEN CAVANAUGH: How do the members of your congregation feel about you going to Washington?

DARRYL KISTLER: Huge support I'm so proud of my congregation stepping up and supporting me. My wife and I made the choice we would do this out of our own pocket and the church members of the congregation and community members in Kensington have stepped up and offered $10 $20 $100 to help us get there and they are very proud of the stance we are taking a proud of the fact that I'm going to be there.

MAUREEN CAVANAUGH: Rev. Kistler thank you for joining us.

CHARLES LIMANDRI: Thank you for having me.

MAUREEN CAVANAUGH: I also spoke with Charles LiMandri, he's president and chief counsel of the freedom of conscious defense fund he was general counsel for the national organization for marriage. He will be speaking here in San Diego at a rally in support of proposition eight tomorrow. I spoke with him about that rally. Charles, what kind of rally are you expecting in downtown San Diego tomorrow?

CHARLES LIMANDRI: Actually it's going to be in front of the federal courthouse at 1130 and it's going to be a news conference as well as a rally. Basically we will have a number of speakers that are going to be expressing the reason why we believe it's important for the US supreme court to uphold the vote of the 7 million Californians who voted in favor of prop eight.

MAUREEN CAVANAUGH: are there prominent San Diego zoo will be speaking in support of prop eight there?

CHARLES LIMANDRI: There are there will be some clergy people and other lay people such as myself. I think altogether they have about eight speakers planned. I think it is an hour-long rally and press conference and they will be hearing a number of different perspectives from prominent San Diego's.

MAUREEN CAVANAUGH: a recent Field poll shows support among Californians for marriage equality has risen to 61%. Is the national organization for marriage and other groups feeling that? Are you finding it more difficult to find people who support a ban on gay marriage?

CHARLES LIMANDRI: You know we don't look at it so much as a ban on gay marriage, how you phrase the question more intense to be so important to how people respond to these particular questions. We are talking about preserving traditional marriage and are redefining. If you asked the question that way, we tend to still be ahead in the pool and please remember that until the very night when people had a chance to count the vote on prop eight the polls were saying we are going to lose. We always under Pope on this issue and quite frankly and unfortunately people seem to be reluctant to say how they really feel. North Carolina they said we are going to lose, we won by 60% of the vote. True, we did lose a four state elections last on the ballot that we were outspent 3 to 5 times by the other side and they were still very close elections.

MAUREEN CAVANAUGH: what you are saying is the amount of people who support same-sex marriage is not impacting the number of peopleoh you can find who support a ban on same-sex marriage?

CHARLES LIMANDRI: What I'm saying is that the polls are misleading and we believe that if you were to do a fair polls such as what happens when people actually go to vote which is the only poll that really counts the majority of people in this nation still support traditional marriage. Has there been some slippage, yes I believe there has to be perfectly honest. I think we would still win on a street a collection particularly if there's anywhere near rough parity in the amount of money spent in getting the message out to the voters.

MAUREEN CAVANAUGH: many people including president Obama say they have changed their mind on same-sex marriage. This also happened the former mayor Jerry Sanders, often because they have a relative or close friend who is gay have you seen the changes might happen perhaps among your own friends or family?

CHARLES LIMANDRI: Not so much that I can say directly among friends or family. I come from a big Italian family. I've got three cousins and a nephew who are gay and I love them and want nothing but the best for them. But our views are based upon reason and based upon what we believe are best for society. The fact that we may have loved ones or friends that are gay is not going to change what we believe to be what is best for society and maintaining this time-honored institution of marriage. I have my personal experience but obviously in the case of Jerry Sanders our president Obama or any other examples you can give, yes. But people are doing that based on generally emotional reactions and often times they will say from my heart, and I understand that. They love, in some cases a family member in they want to do what they feel is best for that person but they are not really changing the reasoned arguments that led them to believe that marriage was best for society particularly best for kids in the long run.

MAUREEN CAVANAUGH: Charles LiMandri thank you very much. Charles LiMandri was former counsel for the national organization for marriage. The legal aspects of tomorrow's arguments and the number of outcomes that might arise are complex I'd like to welcome Glenn Smith. He is professor of constitutional law at the California Western school of Law and Glenn, welcome back to the program.

GLENN SMITH: Thanks, it's good to be here.

MAUREEN CAVANAUGH: Proposition 82 was overturned by the California Supreme Court. The US Supreme Court will now decide whether to uphold the decision but usually when a state law is challenged at the Supreme Court, the state argues in favor of the law. But who is arguing for prop eight?

GLENN SMITH: That is what makes us very interesting. The proponents of prop eight the private organizations that supported it ended up having to defend the law because when it was brought in the federal district court. Quickly Atty. Gen. Brown and the other state officials that have been sued said we agreed this law is unconstitutional so there was nobody left to defendants of the District Court allowed the proponents, supporters of prop 82 separate cord and put on witnesses and defended. That's one of the issues before the Supreme Court is whether a private party can defend a state law or, should some of these decisions be thrown out on grounds of lack of standing and prop eight ends up getting validated open because a district court ruling said it couldn't.

MAUREEN CAVANAUGH: the same thing is true for the federal Defense of marriage act where the Obama administration is not arguing in support of that.

GLENN SMITH: That's right usually not always usually the solicitor general Justice Department of the US defense federal law. They said again this law is indefensible and so a bipartisan group of members of Congress again was allowed to step in so the Supreme Court (inaudible) parties why can't those people argue this law. So one, as you mention one of the many complex possibilities. One of the possibilities is the court after all this drama and anticipation and argument unconstitutional marriage will ultimately say it cannot reach the constitutional merits because there's nobody that is legal authority to defend the lawsuit.

MAUREEN CAVANAUGH: it seems by statements by supporters of prop eight that much of the argument will focus on marriage as a fundamental unit of societydesigned to produce children. Do you think that could be a persuasive argument against same-sex marriage?

GLENN SMITH: It only can be a persuasive argument if, and this could be well the way the court looks at it. The discrimination or distinctions between opposite sex marriage and same-sex marriage just have to be rational. It has to be, conceivable that there is some rational reason I might've motivated this. This is the usually low-level standard that courts use to make sure they don't to quickly second-guess the decisions of political majorities. In that world where the question is is it at least debatable, it is a plausible argument. Certainly both California, federal courts, the District Court and the Ninth Circuit didn't even think it was rational. But certainly if the court is persuaded it all to raise the level of review and look at what is the actual purpose of prop eight and doesn't make sense to claim the argument when you are leaving out elderly and infertile couples, heterosexual couples who could be married, and how in the world would we think that allowing same-sex marriage in any way discourages heterosexuals from marrying when you get into those questions it's very hard to defend the law.

MAUREEN CAVANAUGH: On the opposite side will the opponents of the ban argue that proposition eight denies the basic constitutional right to same-sex couples.

GLENN SMITH: They are arguing. That's certainly what is about this case the course could use this to address the question can any state or government uses to defend and on the other hand the Ninth Circuit given their a way to defend the decision on the proposition eight case the question isn't whether California like any state can ever declined to give recognition of same-sex marriage. The question is is a unique state like California that has gone very far with domestic partnerships and which under as you said California Supreme Court order for 187 days allowed same-sex marriages, can we take that back? Or is the only reason for going back on the progress an animus or rational precedent against gays and lesbians and that really what, that would that would save for the next case the broader implications of same-sex marriage.

MAUREEN CAVANAUGH: that would be a very narrow way to decide that would only impact California.

GLENN SMITH: Right

MAUREEN CAVANAUGH: What will you be listening for tomorrow:, when the justices ask questions during the arguments. What made the questions tell us?

GLENN SMITH: You know I always love when they try to figure out what in the hour plus that they have, one of the many possible issues are they going to focus on but I'm going to be really interested into justices, Justices Kennedy and Chief Justice Roberts. Are they, what do they seem to be, what sort of level of review or mood of difference do they seem to be bringing. Today seem inclined to give California voters the benefit of the doubt? Well maybe they have a rational reason. Maybe we should be very cautious, courts should be reluctant to get involved or are they going to be saying what is the basis for this? Are they going to be pointing out the many seeming inconsistencies of proposition eight as least as a logical level. So that is really those are the two important justices whose votes will affect the majority in this case. And of course I will also be interested in listening for is anyone on the court inclined to duck this case on sort of the jurisdictional ground.

MAUREEN CAVANAUGH: I've heard some discussion and apparently there is some feeling that the justices did not agree to take this case in order to make a very narrow ruling. Would you go along with that?

GLENN SMITH: I think that is right that one of the interesting things I've seen as a long time Supreme Court observer is how a case looks when the court decides to take the case they only have four justices decided it may be very different from we the case looks on paper document dancing how complex it is and how someone dangerous it is politically that they are in the conference room having to decide it.

MAUREEN CAVANAUGH: Then it's time to take a step back

GLENN SMITH: Yeah, so maybe caution seems more like a good idea at the time than earlier. I'm not saying that will happen. I agree with you. I think when they took the proper eight case we thought we are not just going to try to get the federal government out of the process here with the DOMA decision we want to we say something about same-sex marriage and the question is what is the something. Is it going to be narrow or broad?

MAUREEN CAVANAUGH: quickly when should we hear a decision?

GLENN SMITH: I can't imagine a decision earlier than the last day of the term, late June, the last day I think they will argue about it as they continue to swap graphs about the opinions.

MAUREEN CAVANAUGH: I've been speaking with Glenn Smith constitutional law professor at the Cal Western school of Law. Thank you.

GLENN SMITH: You're welcome