Friday, January 22, 2010
Why did San Diego Mayor Jerry Sanders testify in a federal trial examining the constitutionality of the California's same-sex marriage ban? We speak to a staff writer from the San Diego Union-Tribune who covered the story.
GLORIA PENNER (Host): I’m Gloria Penner. I’m joined by the editors at the roundtable These Days in San Diego. Today we’ll talk about Mayor Jerry Sanders’ testimony against Proposition 8 in a federal court, the City of San Diego out of balance again on its budget, and why the financially squeezed San Diego Unified School District didn’t go after a federal pot of money. The editors with me today are Scott Lewis, CEO of Voiceofsandiego.org. Scott, it is a pleasure to see you again.
SCOTT LEWIS (CEO, Voiceofsandiego.org): Always a pleasure to be here. Thank you.
PENNER: Thank you. JW August, managing editor of 10News">10News. Thank you for gracing our studios, JW.
JW AUGUST (Managing Editor, KGTV 10News): Top ‘o the morning to you, Gloria.
PENNER: And Alan Ray, senior editor for KPBS News. And I’m really happy you could be with us, Alan.
ALAN RAY (Senior Editor, KPBS News): I am pleased to join you. Thank you for inviting me.
PENNER: Our number is 1-888-895-5727, 895-KPBS. Well, San Diego Mayor Jerry Sanders was in court on Tuesday in San Francisco and his voice shook. No, he wasn’t involved in a crime, although some Republican leaders might consider what he had to say close to criminal. He was testifying against voter supported Proposition 8, the November 2008 ballot measure that banned same sex marriage in California. So, JW, before we get to the mayor’s role, let’s understand why Prop 8 is under fire in federal court. What do the plaintiffs claim?
AUGUST: Well, there are two same sex couples and the City of San Francisco are suing in federal court, claiming that basically their rights under the Constitution have been violated, that the Prop 8 discriminates against them and, you know, it’s separate but equal and segregation is a thing of the past. That’s about as simple as I can put it.
PENNER: Oh, well, you don’t have to be simple with us this morning. We’re ready for complexities.
PENNER: All right, so back up a little bit and tell us who the plaintiffs are. Who are the people who are…
PENNER: …saying that Prop 8 is not legal?
AUGUST: Well, these are two couples, same sex couples, that are named on the lawsuit along with the City of San Francisco, and they are suing in federal court before Judge Vaughn Walker is hearing the case. And then the people that supported the passage of Prop 8 are fighting it with a very high powered—I think his name’s Olsen—attorney who was involved in the Bush-Gore thing in the Supreme Court after the Florida vote.
AUGUST: So there’s some heavy duty people there, heavy duty stakes.
PENNER: And it’s in federal court. That’s kind of interesting. After all, this is a California proposition. How did it get into federal court, Alan?
RAY: Well, it’s an issue of civil rights or at least that’s the claim, that equal protection clauses in the Constitution are violated because – and the point that they’re trying to make and I’ve not heard anybody actually make this legal point yet, is that there is some illegal discrimination against a particular group because of characteristics in this group that are peculiar to them.
PENNER: You mean the people who support Prop 8.
PENNER: Okay, so when – Now we have that background, so why would the mayor of San Diego be called to testify, Scott?
LEWIS: Well, the mayor really defined himself in, I think it was, 2005 when, you know, he – his daughter is gay, many of his staff members are gay. There was this – there was that moment back then where he had been sort of boxed into a corner to say that he was going to reject the city council’s effort to join this sort of legal effort to legalize same sex marriage, and he was going to reject it based on his political advice. And at first he sort of did, and then he said, you know, I can’t do that. I have to stand up for the fact that I believe that these rights are inherent to everyone and that we need to stand up for equality. And I think that will be, that emotional press conference he gave then, that YouTube that’s still out there, is perhaps one of the most moving things that I’ve ever seen him do and it’ll be his legacy, which is interesting considering that it probably has less to do with his actual job than most other things he does. But it will be something that he’s remembered for for decades.
PENNER: So you think that brought him to the attention of the plaintiffs who are fighting Proposition 8?
LEWIS: Oh, it inspired the entire country. I mean, there was a foundation in Colorado, the Gill Foundation, that later hired his chief of – or, his press secretary. They – the whole country saw what he did and, as a Republican, standing up for gay rights, not as a gay Republican but as somebody who just simply saw this as the civil rights issue of the decade. And now I’ve heard him – that every time he goes to a party that people don’t come up and talk about potholes, don’t come up to him and talk about streets, they come up to him and talk about how impressed and inspired they were by his stance on this.
PENNER: Well, let me ask our listeners about that. You heard what Scott Lewis said. I mean, it’s a little hearsay, that people come up and talk to the mayor…
LEWIS: Oh, Gloria.
PENNER: …about gay rights rather than about potholes. If you were to meet the mayor at a party or a coffee or a function, would you be talking to him about gay rights or would you go back to the old pothole complaint? Our number is 1-888-895-5727, 895-KPBS. JW, you want to say something or can I ask you a question?
AUGUST: You can go ahead.
PENNER: I want to know, how tough is it going to be to prove that the initiative is unconstitutional because it appeals to anti-gay prejudice?
AUGUST: Whew, well, you need a lawyer making about $400,000 a year to answer that, Gloria. I have – I imagine they have a tough road to hoe but, you know, if you ask me personally I think they have – there’s some validity in what they say. We can’t have different sets of rules for different types of people in this country. The basis, the Constitution, we are all created equal. You can’t have another set of rules for white folks and black folks and Hispanic folks and gay folks. We all should be – have excess – have access to the same services and the same treatment under the law.
PENNER: But, Alan, wouldn’t you actually have to get inside of the head of supporters of Proposition 8 and those who voted for it to prove that they are prejudiced?
RAY: Well, it certainly would seem that you must have some kind of an evidentiary trail. And so far in this trial, I’ve seen no indication of – that anything like that exists. I’ve seen no indication of any e-mails, any exchanges of memos, any recorded conversations. As a matter of fact, I think the closest we came to having a fact in this case, at least in the initial presentations in the case, was the Asian man yesterday—his name is Tam—who was at first very active in the Proposition 8 campaign then denied he was anything of a major player at all, asked that he be left off the witness list because he was afraid he would be intimidated by people who didn’t – by supporters of gay people who didn’t like him. Finally, yesterday, among other things, he said it’s his belief, and he read it somewhere on the internet, that, indeed, being gay makes you more likely to want to have sex with teenagers or to want to raise the legal age for sex from whatever it is now – or, lower it. It’s just…
AUGUST: But that’s hard…
AUGUST: But that’s hardly hard evidence. I think it’s just like the – when the Proposition passed, it’s an emotional issue, it’s a political issue. It’s like abortion. People that are gay are the sons of Satan. You know, a lot of the Christian right, you can talk until you’re blue in the face to them. They do not – they do not support it. They will never support it. They feel the purpose of marriage is to have babies.
LEWIS: I think you mentioned Ted Olsen earlier. He’s the – he was the lawyer for Bush in Florida. He’s the guy actually challenging Prop 8.
PENNER: He’s the…
LEWIS: He’s supporting…
PENNER: He’s the attorney for the plaintiffs who are…
PENNER: …who are challenging Prop 8.
LEWIS: Yeah, and he’s an incredibly impressive person and he makes a conservative case for gay marriage rights. And I think that what they relate this to is, look, they want to get this to the Supreme Court. They want it to have been upheld, their position upheld, at this level and then if it goes to the Supreme Court, force the Supreme Court to actually overturn it. And I think that that would be a big step, and they want to make the argument that this is just like in the fifties and sixties where people were discriminated against by popular measures in various states but then the federal government said, look, you cannot discriminate. No matter how much of a majority you have, you cannot discriminate against a minority. And this is going to be the fight that they face and, you know, it is very interesting to watch the anti-Prop 8 forces look to conservatives like Ted Olsen and Jerry Sanders to lead the charge because that, they think, adds a level of legitimacy that they haven’t had in the past.
PENNER: Before I get to our callers, and we have lots of people who want to talk about this, let me go back to you on this, JW. When the mayor talked about his switch from being an opponent of same sex marriage to being a supporter, because at one point he was for civil unions…
AUGUST: That’s correct.
PENNER: He admitted that his decisions were grounded in prejudice.
AUGUST: Originally, yes.
PENNER: Yes. Is he trying to extend his reason for opposing same sex marriage to everyone else who opposes it?
AUGUST: Well, I read the testimony, his testimony, and repeatedly, when he was questioned by the pro-8 attorneys, he would say he believed it’s grounded in prejudice, it’s grounded in prejudice. So they would ask a question, well, don’t the people that support Prop 8, aren’t they right-thinking folks and don’t they have a right to their own opinion? And he says, yes, but it’s grounded in prejudice, it’s grounded in prejudice. So, yes, he made – He said that again and again and it’s…
PENNER: He said, I was a prejudiced person and I believe everybody else is prejudiced who’s opposed to same sex marriage.
AUGUST: Right. Until his testimony, I didn’t know the case of how that evolved. It was before his daughter that he began thinking about this; it’s when he had somebody – when he was in the police department, he had a sergeant who came out of the closet and said, hey, I’m gay, and he basically got run off the force…
AUGUST: …and you could – I felt that that was when he started – it began moving into his conscience and he began thinking about this thing.
LEWIS: Well, I think he’s yet another example of somebody like even Dick Cheney. When you get to know somebody who is struggling with that fight or with that issue, you start to have an empathy that is just impossible without that, and that’s why one of the cornerstones of the gay rights movement has been to just get people to come out and talk about what they go through with their family because there’s no other more persuasive power than that.
PENNER: All right, but…
AUGUST: Well, I just – But can I just say he’s…
AUGUST: …Dick Cheney with a conscience and there’s a difference there. There’s different kinds of Republicans.
PENNER: I wonder whether the mayor would enjoy being paralleled with Dick Cheney in any way. He might be, I don’t know.
AUGUST: With a conscience.
PENNER: With a conscience. Let’s hear from our listeners now. They – We have lots of them who want to talk about this. So we’ll start with Fred in Clairemont Mesa. Hi, Fred. You’re on with the editors.
FRED (Caller, Clairemont Mesa): Thank you very much for taking my call.
FRED: I think that it’s really interesting that sitting there having a conversation with Jerry Sanders, given the opportunity to do that, I think most people would choose the intangible over the tangible, that is, his stance on gay marriage. Because, simply, it’s something he has control over. He’s not battling a budget or anything like that with regards to his opinion on that, so I think most people are going to go for that because it’s going to be more movement on that in terms of that. And it’s just – I agree with what you said about it being an issue of prejudice as well. It’s a case of someone wanting to control what someone else is doing, whatever their choice of lifestyle is. If the tables were turned—and I think this is, you know, very, very a telling thing—if the tables are turned and somebody said well (audio dropout) marriage because you – we don’t recognize something by the church and all marriages in the church are now nullified, I think we’d see a total spectral opposite there. We would see people coming out and just going ape over it because it would be an infringement on their lifestyle but it would be a Christian lifestyle. And for other people to live this alternative lifestyle, which they freely choose, which freedom is a basic tenet of our society, you’re really going against the grain. You’re saying I want me to be free to do what I want to do but other people are not free to do what they want to do.
PENNER: Okay, well, I thank you very much, Fred. That was an interesting comment. We just have seconds before the break, Alan. Can you make it short?
RAY: Well, I think the point that needs to be made here is that there are two kinds of marriage. There is that church marriage and there is civil marriage, and I don’t think the state has the right to deny somebody the chance to be married in – on civil grounds. The problem is when you begin to make moral judgments about people who want to be mates.
PENNER: We’ll talk more about that after the break. That’s an interesting point. This is the Editors Roundtable. I’m Gloria Penner. We’re going to continue our discussion about Mayor Jerry Sanders’ testimony in federal court opposing Proposition 8 and basically arguing that people who voted for Prop 8 are bigots and, therefore, the proposition is unconstitutional. That’s really what it comes down to. Our number is 1-888-895-5727, 895-KPBS.
PENNER: This is the Editors Roundtable. I’m Gloria Penner. And I’m here today with Alan Ray from KPBS and Scott Lewis from Voiceofsandiego.org and JW August from KGTV 10News and you, of course. We’re talking about the mayor’s testimony before federal court in support of same sex marriage and opposed to Proposition 8. We’re asking all kinds of questions, why did he do it, what is it going to mean for him politically, and how you feel about having your mayor, if you are from the city of San Diego, testifying in this kind of a trial, and where it might all go from here. So let’s hear what our listeners have to say because we have a full bank of calls here. Let’s start with Shane in Normal Heights. Hi, Shane. You’re on with the editors.
SHANE (Caller, Normal Heights): I agree with letting the church perform marriages and letting the state perform civil unions and be done with it. Shame on us for letting this divide us.
PENNER: Okay, thank you, Shane. We appreciate that call. Now, you had started to talk about that earlier, Alan, and do you think that Shane’s idea would basically resolve it all?
RAY: Well, basically now you have to get married twice. You have to get – There has to be some kind of a state contract even if you only get married once, but the state has to approve this and then if you’re in a church and you have a church marriage then you’re married in the church, too. So we already have, for the people who are churched, we already have essentially two different marriages here; we have the state contract and we have this union of two spiritual beings, the church people believe. The point of all this, to me, is that, you know, the state needs a contract between two people essentially to manage estate and to manage offspring.
PENNER: So isn’t a civil union enough?
RAY: It seems like everybody should have a civil union. You want to go to church and have a real marriage, go for it.
LEWIS: Obviously, the problem is, is that they call it marriage right now and that has a power. And if you want to change – you want to put the genie back in the bottle, and, you know, for people like me who are already, quote, married, you know, are we not? Are we suddenly just civil unions or whatever. That’s the problem with it. And I totally agree. If the state just handled the contracting then the churches could decide who they desired – who they think deserves to be, quote, married or not.
PENNER: And suppose that you don’t belong to a church.
LEWIS: Then you can decide in your own special way what that particular word means. I agree completely with that but…
RAY: Maybe the answer just is not to call it a civil union but a civil marriage and a church marriage. I mean, how easy is that?
LEWIS: But that – that’s…
PENNER: But, I mean, suppose that you don’t go to church.
LEWIS: Well, that’s exactly what they would fight. That word marriage is what characterizes it as a bond that’s above some sort of civil contract.
PENNER: Let me raise something else. The mayor is a political figure, he’s not a private one. The attorney for the defense of Prop 8 implied that the mayor changed his position because of pressure from politically connected politicians and political supporters. What could be the political fallout for the mayor now that he so publicly declared that opponents of same sex marriage are prejudiced?
AUGUST: Nothing. Zero. Zip. I mean, he announced his switch after talking to his daughter Lisa the day before he launched his election campaign in 2007. I don’t think he’s concerned about that…
AUGUST: …at all.
LEWIS: And, lookit, he’s a Republican in San Diego, too. He doesn’t necessarily have any natural political pressure to do this. This was the one time, in fact, when he looked at the easy way to deal with something and he said, I’m not going to do that. I’m going to do the hard thing…
AUGUST: Right on.
LEWIS: …and that’s why he’s going to be remembered for it for so long.
LEWIS: And, in fact, if I were to criticize him at all it would be that how many other times has he looked at the easy thing to do in the city hall or in the city budget or whatever and chosen that? And how would he be remembered had he chosen a more difficult path in these things? And this is the frustrating thing but that’s – but he cannot be hammered for this. This was the one thing that he looked at and said, this would be the easy way, I am not going to do that. And I think the entire city is proud of him and it showed that he actually did get a boost out of it, that’s for sure, but he was – he would not have had trouble to be reelected at all.
PENNER: You know, our callers really want to get through to us and we only have another minute or two on this so let’s take some calls. This one is from Ron in Tierrasanta. Ron, you’re on with the editors. If you make it brief, we may be able to squeeze in one more caller.
RON (Caller, Tierrasanta): Good morning, and very brief.
RON: What happens in federal court doesn’t matter. What happens at the appeals level doesn’t matter. Right today, you could write the Supreme Court 5 to 4 division that will uphold Proposition 8…
RON: …and then it becomes the law of the land for decades if not forever. Okay?
PENNER: Well, I understand, especially after…
PENNER: …yesterday’s decision by the Supreme Court to allow corporations to contribute to campaigns in any amount…
PENNER: …at any time in any capacity.
AUGUST: Goodbye democracy.
RAY: Well, don’t forget, the initial ruling by the Supreme Court in this case in San Francisco was that the testimony could not be posted on YouTube. The court proceedings could not.
RAY: And this was intended by the people who brought this suit, this was intended as much as a political – as a PR effort as it was political or judicial.
LEWIS: There’s no question that that’s the case. That…
LEWIS: …you know, if it does go on to the Supreme – It’s already on the path to go to the Supreme Court, there’s no question about that. The point is, is the Supreme Court going to be in charge of getting rid of gay rights or are they – is it going to be in charge of upholding this law? That’s going to be a very separate issue. If this court says that this is an unconstitutional thing then the Supreme Court will be required to actually say, no, it is constitutional, and that would be a big deal. And if you don’t want to have that fight, fine, but they want to be able to start that fight. This may be a couple of decades procedure but this is the first step for that.
PENNER: Well, we could take this for the whole hour but we do have two other topics so let’s take one more phone call, and this one is from Gerardo in Linda Vista. And, callers, you can go to KPBS.org/editors and register your comment online and we’ll read all about them and other people can comment on what you have to say. So please do that. I’m sorry we couldn’t get to you. But, Gerardo, we’re getting to you. Gerardo in Linda Vista.
GERARDO (Caller, Linda Vista): Yeah, I’ll try to keep it brief. Hi. Good morning.
GERARDO: There are certain things that we can choose and there are certain things that we can’t choose. We can’t choose our race and some would argue that we cannot choose our sexual preference. And I think the central question, my understanding is, is before the court is whether or not gay people really have a choice when it comes to whether they want to engage in heterosexual or homosexual relationships. And the Supreme Court has held in the past that you cannot discriminate against fixed characteristics of classes of people so I think that, you know, putting aside whether pro-Prop 8 people are bigoted or not, that’s, I think, going to be the central question.
PENNER: Alan, you agree?
RAY: Absolutely. That is the question; it always has been. You can’t – That’s why discrimination against some – against a group, based on an inherent characteristic is illegal. But you can discriminate against somebody who does something they chose to do. Entirely different things.
PENNER: So the argument is whether gay and lesbian people decide whether they want to be gay and lesbian or whether that’s – they had no choice.
RAY: It comes down to a difference…
RAY: …between prejudice and orientation.
PENNER: Okay. Last comment from you, Scott?
LEWIS: Well, I agree completely and, you know, this is – You can – They’re going to fight this for sure, and I would just say that they want to have that fight. They want – that’s why they wanted to have it broadcast. They want the world to see this discussion happen because they believe that they would – that the world will rise to their rational position. And whether that’s true or not, that’s the course that’s been set.
PENNER: Okay. Save some energy, Scott, because I’m turning to you next. That black hole…
LEWIS: I always have energy.