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Prop 8 Ruling, Next Steps And History Of Same-Sex Marriage

Prop 8 Ruling, Next Steps And History Of Same-Sex Marriage
We'll look at the language of the ruling in the Proposition 8 trial, and where the case will go from here. We'll also discuss the status of public opinion and the history of the same-sex marriage debate in California, the nation and around the world.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. This week U.S. District Court Judge Vaughn Walker is expected to decide whether to extend a stay on his Prop 8 ruling. So, even though his decision overturns a ban on same-sex marriage, it's possible that no same-sex marriages will take place until the appeals process is over. That kind of complication is part of the dual nature of the battle over Proposition 8. It’s inherently a legal fight with strict rules of procedure and inflexible timelines but it is also intensely personal, affecting matters of love and family and deeply held religious belief. All this hour, we'll be discussing what Judge Walker said in his decision overturning Prop 8, how both sides intend to use that language to continue the legal battle, and how far legal victories can go in changing society's attitudes about same-sex marriage. I’d like to introduce my first guest. Dan Eaton, San Diego attorney, and These Days legal analyst. Good morning, Dan.

DAN EATON (KPBS Legal Analyst): Good morning, Maureen. You’re out of sequence.


EATON: I wouldn’t normally come in until next week.

CAVANAUGH: Thank you for the special visit.

EATON: Sure. Okay.

CAVANAUGH: Now we invite our listeners to join the conversation. Is Judge Walker’s ruling overturning Prop 8 surprising to you in any way? What do you think should happen next? Give us a call with your questions and your comments. Our number is 1-888-895-5727. So, Dan, you’ve – I know that you’ve read this decision.

EATON: I have.

CAVANAUGH: What is at the core of Judge Walker’s ruling?

EATON: At the core of Judge Walker’s ruling, Maureen, is that when California voters passed Proposition 8 in 2008, they violated the equal protection and due process rights under the 14th Amendment of the state’s gay and lesbians, particularly those who want to marry. What the judge said was that inherently Proposition 8 could be supported under the facts by nothing more than moral disapproval by the majority of voters and that was not enough to override, on the one hand, the due process rights of gays and lesbians to the fundamental right to marry and it could not override their right to equal protection under the laws. What he wrote was that the California voters, in passing Proposition 8, had expressed a private moral judgment that, quote, same sex couples are inferior to opposite-sex couples, close quote. And that was not enough to withstand constitutional review.

CAVANAUGH: Give us some of the background of Prop 8 because this has been just really a wild legal ride for a couple of years now.

EATON: It has. And of course most people are familiar with this but it’s worth reminding listeners of this. Remember that Proposition 8 put into our state Constitution something that had previously been in the state’s Family Code. Why was it necessary to put it in the state Constitution? Because in May of 2008, the California Supreme Court, by a 4 to 3 vote, said that if it’s just in the Family Code, it cannot withstand scrutiny under the state’s own Constitution. So the voters, in 2008, passed identical language which says in its entirety, quote, only marriage between a man and a woman is valid or recognized in California. They put it in the state Constitution. Then, of course, inevitably, it went back to the California Supreme Court as to whether that was a revision of the California Constitution, requiring some sort of special process, or whether it was just a proper insertion into the California Supreme – into the California Constitution. Ultimately, in 2009, the California Supreme Court, by a vote of 6 to 1 said, no, the voters had the right to do this. And then came the federal lawsuit.

CAVANAUGH: And what is the federal – what is the legal basis for this federal decision?

EATON: As I said before, we – the judge rested his ruling, Judge Walker rested his ruling on the due process and the equal protection clauses of the 14th Amendment and, of course, the 14th Amendment was enacted in the aftermath of the Civil War. And what he – Let’s look at each clause, okay, because a due process clause says, look, states are prohibited from depriving any person of life, liberty or property without due process of law. There’s nothing in there about marriage.

CAVANAUGH: Right, exactly.

EATON: And yet he said that, look, this applies to the right to marry. Why? Because the United States Supreme Court has said when you are talking about burdening a fundamental right such as the right to marry, which has been recognized by the United States Supreme Court, the law that you pass, the state law that you pass has to be narrowly tailored to achieve a compelling government interest. That’s a pretty tough standard to meet. And, ultimately, the question was whether what the gay couples and those others challenging the law were seeking, whether they were seeking simply to exercise the right to marry or whether they were seeking something different, whether this right to marry a person of the same sex was somehow fundamentally different. And he said, no, essentially because the distinction between a man and a woman in the marital relationship has been obliterated in California law as it has evolved so that we are now not talking about two people with distinct roles, one the man and one the woman, but instead we’re talking about a joining of equals. Because that has been changed as California law evolved, what you’re talking about is essentially the right to marry. That what the gay couples were seeking was the same right that opposite sex couples enjoyed, which is the right to marry and the right to call their committed relationship a marriage.

CAVANAUGH: Now, is that the due process ruling? Or is that the equal protection ruling?

EATON: Right, that’s the due process ruling. And it was under the toughest – it was under the toughest standard. What Judge Walker said was that in the challenge to Proposition 8 that same sex couples were seeking the same right to marry and the fact is that when he looked at all of the evidence, there was relatively minimal evidence that was put forward by the opponents of Proposition 8 and, certainly, nowhere near the kind of evidence, said Judge Walker, that was necessary to establish that Proposition 8 was narrowly tailored to achieve a compelling government interest. But it was the equal protection analysis that really got interesting.

CAVANAUGH: Well, tell us about that.

EATON: The equal protection clause, remember, prohibits any state, such as California, from denying citizens under its jurisdiction the equal protection of the laws. And Judge Walker said that Proposition 8 violated the rights of California gays and lesbians to equal protection because the proponents couldn’t even show any kind of rational reason for the enactment. The only thing, Judge Walker said, that could be supported by the evidence as to why Proposition 8 was passed was because of a moral disapproval, that something was odd or wrong or morally inferior that same sex couples had or committed relationships of same sex couples had and that opposite sex couples were morally superior to them. And that was not enough to deprive Judge Walker – to deprive gays and lesbians, in Judge Walker’s view, of equal protection of the laws. And he went through the reasons that they gave.

CAVANAUGH: He basically said that all eight of them – he rejected all eight of the…

EATON: There were six actually, yeah.

CAVANAUGH: …of the interests – I’m sorry, that Prop 8 proponents said that they had advanced that said these are the interests of the state, this is why we should prohibit same sex marriage.

EATON: That’s exactly right, Maureen. He said no one, no two, and so forth.

CAVANAUGH: Right, right.

EATON: So let’s go through those six that he identified. One was preserving the traditional institution of marriage, which is limited to a man and a woman. Two was proceeding with caution with significant or dramatic social change. Three was promoting opposite sex parenting over same sex parenting. Four was protecting the freedom of those who oppose same sex marriage. Five was treating different kinds of relationships differently. And six was sort of this catch-all any other conceivable interest. And the judge rejected each one of those as not supported by the evidence.

CAVANAUGH: Now, just why wasn’t tradition enough of a reason to validate Prop 8 according to Judge Walker?

EATON: The reason for that is because tradition in his view, at least as he understood it as it was expressed by the evidence that he saw, was that it equates to the notion—these are his words—that opposite sex relationships are simply better than same sex relationships. Traditional alone, said Judge Walker, cannot legitimate this purported interest. Ultimately, said Judge Walker, the state has no interest in preferring opposite sex couples to same sex couples or in preferring heterosexuality to homosexuality. Moreover, the state cannot have an interest in disadvantaging an unpopular minority simply because that group is unpopular. Ultimately what the judge said was that the state advances nothing when it adheres to the tradition of excluding same sex couples from the institution of marriage.

CAVANAUGH: And that caution, that proceeding with caution when enacting social change, the need to proceed slowly with social change, he rejected that as well.

EATON: He did because he said this is a straightforward thing of just changing some forms. That’s why he rejected the idea of dramatic social change and he rejected the other reasons as well. Finding, for example, as a matter of fact, with respect to same sex parenting versus opposite sex parenting, that according to the evidence, they were equivalent, that they produced adjusted children in the – well-adjusted children to the same degree.

CAVANAUGH: I’m speaking with These Days legal analyst Dan Eaton and we’re talking about Judge Vaughn Walker’s decision overturning Prop 8. Judge Walker also – he says that there were many findings of fact in this ruling. There are a whole list of finding of fact…

EATON: Eighty.

CAVANAUGH: …and I wonder what the difference is between a finding of fact and a conclusion of law.

EATON: Finding of fact, of course, is a finding of what is true or false based on the evidence that he had before him. A finding of law is the application of the legal principle such as due process or equal protection to those facts. Why is that significant? Because on appeal, Maureen, what’s going to happen is the Court of Appeals is going to uphold any findings of fact that Judge Walker made even if there was conflicting evidence that would support an opposite finding of fact. A conclusion of law, however, the appeals court is going to look at fresh and say, you know what, we’re in as good a position as you are to make that call as to what the law requires. That’s why it’s significant between the finding of fact such as, for example, that same sex and opposite sex parenting produces well-adjusted children is so significant going forward.

CAVANAUGH: So, in other words, the appeals process will not be reopening those findings of fact. All it will be is deciding on whether or not Judge Walker interpreted the law correctly.

EATON: And applied the law to the facts. That’s right because, remember, he heard from witnesses, he saw documents, he could look them in the eye, and that’s why the appeals court defers to Judge Walker’s findings of facts. Of course, they may disagree on what some of his findings of fact, whether they actually were findings of fact or whether they were more conclusions of law but that’s something for lawyers to fight over.

CAVANAUGH: Now there’s some provocative language in this ruling. Judge Walker basically says the vote, the popular vote, that supported Prop 8 was irrelevant. Why does he say that?

EATON: Maureen, it’s important to put that comment, which you quoted exactly right, in context. What he said was that if you’re talking about a fundamental right, it can’t be subjected to a popular vote. He was relying on a 1943 U.S. Supreme Court case regarding flag salute, compulsory flag salutes in public schools. But it’s very important to note that early on in his opinion, he also said, and I want to quote this because it’s important, that, quote, an initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determination of the voters, closed quote. That said, sometimes these opinions of highly qualified experts do override the voters and when is that? When there is this burden of a fundamental right that cannot be supported by any reason other than moral disapproval no matter how great a majority of the voters come to that conclusion.

CAVANAUGH: Also, the judge talked about how marriage itself has changed and moved beyond gender stereotypes under California law. I think that that whole analysis was quite fascinating to a lot of people.

EATON: It was because this was the issue: Do men and women have different roles in a marital relationship that can justify treating opposite sex couples differently from same sex couples for the purposes of access to the institution of marriage? And he said they don’t. Judge Walker pointed to enactment of no fault divorce, Maureen, in particular as saying that the state made it simpler for spouses to end marriages and allowed spouses to define their own roles within marriage. Once he acknowledged that, he was able to find that the exclusion of same sex couples from the institution of marriage is, quote, an artifact of time when the genders were seen as having distinct roles in society and in marriage. That time, wrote the judge, has passed.

CAVANAUGH: What kind of evidence did the trial – the judge use from the trial itself, from the plaintiffs and from the defense?

EATON: Well, he relied heavily on that – on the plaintiffs, of course, those who were challenging the law, very heavily. And he said, look, all this evidence from all their experts strongly supports the idea that there’s really no rational reason for Proposition 8 to have been passed other than moral disapproval. He rejected virtually all of the evidence that was put forward by the proponents of Proposition 8, including the expert testimony. The two experts that they had testify, he said they weren’t qualified to offer their opinions on the marriage, fatherhood, and family structure, on the one hand and the political power of gays and lesbians on the other hand because they didn’t have a sufficient background. So he gave them no weight at all. The factual evidence was important to him because when he listed his 80 findings of fact, Maureen, he listed exactly what evidence he believed in the trial supported those factual findings.

CAVANAUGH: This looks, on the surface at least, to be a unambiguous victory for the people who want to see Prop 8 overturned, this entire ruling by Judge Walker. As rulings go, how would you characterize it?

EATON: Well, Maureen, ultimately this is a trial court ruling. And this is the first word as to how the U.S. Constitution treats same sex marriage but it won’t be the last. The ultimate conclusion by the United States Supreme Court, which just got a new justice over the weekend, by the way, with Elena Kagan’s installation, will be whether, ultimately, this right is supported by the U.S. Constitution rather than whether this particular proposition supported this or whether it was supported or not. And the U.S. Supreme Court and the appeals court, the Ninth Circuit, are going to have to weigh competing values to determine whether the Constitution allows the state to limit the institution of marriage to opposite sex couples or whether the U.S. Constitution requires that it be opened up for some or all of the reasons that Judge Walker said to same sex couples as well.

CAVANAUGH: I want to thank you so much for explaining. That’s quite a ruling. Thank you for taking us through it.

EATON: All right. Thank you, Maureen.

CAVANAUGH: I’ve been speaking with Dan Eaton, San Diego attorney and These Days legal analyst. Now stay with us because we’re going to be continuing our discussion with new guests on this Prop 8 ruling, and taking your calls at 1-888-895-5727. You’re listening to These Days on KPBS.

CAVANAUGH: I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. We’re continuing our discussion about the Prop 8 ruling. We’re taking your calls at 1-888-895-5727, that’s 1-888-895-KPBS. And I have two new guests to introduce for this segment. Matt Stephens is partner in the San Diego law firm of Stock Stephens and instructor of constitutional law at UCSD. He’s been working on LGBT civil rights for a decade. And, Matt, welcome.

MATT STEPHENS (Attorney): Good morning.

CAVANAUGH: And Robert Tyler is General Legal Counsel for Advocates for Faith and Freedom, representing Imperial County. And Advocates for Faith and Freedom has filed a petition to intervene in the Prop 8 lawsuit. And, Robert, good morning. Thanks for being here.

ROBERT TYLER (General Legal Counsel, Advocates for Faith and Freedom): Good morning. Thank you for having me.

CAVANAUGH: Now I’d like first off to get both of your reactions to the ruling, just sort of a general thing and of course we know that Matt is probably for it and Robert’s against it but sort of if you could expand a little bit on what you think about Judge Walker’s ruling. Let me start with you, Matt.

STEPHENS: Well, he was extremely thorough and listened to the evidence and, as a judge, had no predisposition one way or the other. I think he reached the only correct legal conclusion that could be reached, particularly based on the evidence that he heard.

CAVANAUGH: And Robert.

TYLER: Well, you know, I was at the trial and, yes, this is a very thorough ruling but thorough doesn’t mean that it’s not biased. I was at the trial and it was very apparent from before trial even started which way he was going to rule in this case. I think that what he has done here is a departure from the law and what he is attempting to do is create a whole new line of constitutional law, this is – we’ve never seen anything like his ruling before in our nation’s history.

CAVANAUGH: As I was talking earlier with Dan Eaton, we were talking about the 80 findings of fact in this ruling and how it’s going to be difficult to have those particular findings of fact be involved in any sort of appeal. So I wonder, what are you thinking is the basis, Robert, for an appeal of this Prop 8 ruling?

TYLER: Well, there were certainly many, many facts that came out at trial weighing in favor of the people’s right to vote and the people’s basis for passing Proposition 8 that didn’t get any weight in this judge’s ruling. So just the fact, you know, the mere fact that Judge Walker issues this ruling that gives his viewpoint on the facts doesn’t mean that all of the facts that were presented at trial will not actually come out on appeal. They will come out on appeal. We will point to them in the record as we brief this matter and I think that the Courts of Appeal will get a clear look at all of the evidence that was presented, not just the evidence that Judge Walker wants the public to see in this ruling.

CAVANAUGH: Matt, do you see what – do you see in here, looking at this as an attorney, a basis for an appeal?

STEPHENS: You know, actually there’s some interesting legal issues about whether the defendant interveners, who supported Proposition 8, even have standing to appeal. So I think there’ll be an interesting challenge to whether they even get past go. If they get past go, I think Judge Walker has done a sufficient legal job of nailing down the basis, factual, for the ruling, tied to the legal concept. So I think it’s quite air tight.

CAVANAUGH: Now, Robert, you were – you attended the trial?

TYLER: Yes, I was there.

CAVANAUGH: Now, I’m wondering, in this ruling, Judge Walker is really pretty scathing when it comes to the people who testified for – in the defense of Prop 8 and I’m wondering if you had the feeling while you were there that perhaps these witnesses were not coming off very well?

TYLER: I was there and, surprisingly, there was at times great disrespect given toward the witnesses that testified in favor of Proposition 8. I was shocked at the way the courtroom was managed. And, you know, let me get back to this actual ruling.


TYLER: And, you know, when Mr. Stephens speaks of the fact that this is an airtight ruling, it really is not because what Judge Walker has done here is he’s done something that no other court has done before. He has found a fundamental right to same sex marriage. There has never been such a ruling. Marriage itself, between a man and a woman, has been deemed by the federal courts to be a fundamental right and never has there ever been a fundamental right to same sex marriage. And so that’s what’s unique about this ruling and so what’s happened is the judge applies the highest level of scrutiny that rarely a law will satisfy so Proposition 8 is easily overturned by inventing a right to same sex marriage. In this case, when you – when we go up on appeal, we’re going to be taking a look at the question of whether or not marriage between a – between two same sex – between a same sex couple is, quote, rooted in our nation’s history, legal traditions and practices. That’s what’s required to find a fundamental right. And we’ve never had same sex marriage until just most recently. It’s not rooted in our nation’s history, legal traditions and practices, and so it’s somewhat astonishing that the judge would go and do what he’s done to invent a right and then say that it is rooted in our history.

CAVANAUGH: I want to reintroduce my guests. Robert Tyler is General Legal Counsel for Advocates for Faith and Freedom, representing Imperial County. And Matt Stephens is partner in the San Diego law firm Stock Stephens, instructor of constitutional law at UCSD. And we are taking your calls at 1-888-895-5727. Let’s take a call right now. Alastair McLeod is calling us from San Diego. Good morning and welcome to These Days.

ALASTAIR MCLEOD (Caller, San Diego): Hello. Thank you very much. I have two questions. One is regarding the matter of discovering a new right in the Constitution that the gentleman – as the gentleman described it. To what extent is this ruling similar to Roe v. Wade? Second question, to what extent is – are Mr. Boies and Mr. Olson to be credited with this as opposed to the judge, did they really construct this whole thing? Which they apparently did in a very skilful way.

CAVANAUGH: Thank you.

MCLEOD: Those are my two questions.

CAVANAUGH: Well, I appreciate it. Let me start with you, Robert, about the Roe v. Wade. Do you feel that this is a new finding, a new interpretation the way Roe v. Wade was?

TYLER: Yeah, you know, Roe v. Wade invented a right of privacy that had never been seen before. And in a similar fashion, what this judge is attempting to do is to invent a new fundamental right to invent a new Constitutional right to same sex marriage. So it’s very similar. The case will likely have as great of an impact on our culture one way or the other as Roe versus Wade did. In regard to Mr. Olson and Mr. Boies, yes, very skilled lawyers. I don’t want to disrespect them in any fashion in that way. However, this decision is all about the judge. This judge, you know, for example, said that there’s no rational basis behind Proposition 8. In fact, what he specifically said, he said, this evidence shows conclusively that moral and religious views form the only basis for a belief that same sex couples are different from opposite sex couples. These interests do not provide a rational basis supporting Proposition 8. That’s quite shocking when this judge will say that moral views can really have no foundation to allow Proposition 8 to stand when what he is doing himself is substituting his moral view for the moral views of over 7 million people or vice versa, he’s substituting his view in place of the vote – the moral view of those over 7 million people in California and so…

CAVANAUGH: Who voted for Proposition 8, right. Let me get Matt’s take on Roe – the two questions that our caller brought up. Roe v. Wade and then the fact of what Boies and Olson contributed to this litigation.

STEPHENS: And I’ll start with the second one first…

CAVANAUGH: Okay, yes.

STEPHENS: …which I – I mean, their lawyering was exquisite. It’s – it was masterful. And there’s just – there’s no other way to describe how well they laid out the case, how carefully they selected the nine experts who testified in support of the case, how carefully the testimony from the plaintiffs was crafted and some of the other percipient witnesses or lay witnesses. The comparison to Roe v. Wade, I think, is not a legal comparison. That’s a political comparison. These are two different legal topics. And the judge was duty bound to set aside his own moral convictions, whether he supports or doesn’t in his personal life is not the issue. The issue is legally is there a liberty interest that is fundamental, and you can’t have a circular argument, it never has been, therefore it never will be. That’s not constitutional analysis.

CAVANAUGH: Let’s – We’re taking your calls at 1-888-895-5727 if you’d like to join the conversation. Let me talk about the path of the appeals process, Robert. What is the timeline that we’re looking at?

TYLER: Well, at this point in time, we are waiting to find out whether or not there’s going to be a stay…


TYLER: …from a procedural perspective. And we may find ourselves in the courts of appeal later today, tomorrow, later in the week. It just depends on when Judge Walker decides upon the stay if he decides to lift it, and that would be unprecedented if he did lift the stay. And the next thing is the County of Imperial will be likely filing – or, will be filing our appeal this week. The proponents for Proposition 8 have filed their appeal already. I expect that the Ninth Circuit will process this case very quickly. You know, we’ve got cases in the Ninth Circuit that has taken a couple years to get resolved. I would expect the Ninth Circuit will have its briefing and arguing and probably have this case within one year come to a conclusion.

CAVANAUGH: Now, Matt, I want to talk about that stay a little bit more because apparently late Friday the State of California, Governor Schwarzenegger and Attorney General Jerry Brown joined in a motion to – for the judge to lift the stay while the appeals process was going on. I’d like you to comment on that and also what you think the judge is going to do about staying the ruling and allowing same sex marriages to begin again.

STEPHENS: There’s no reason to have a stay in place particularly after the defendants say that it isn’t necessary for the state. The reason that you would do that is if there needs to be a time to implement. There are already 18,000 couples who were married in California and the forms are already available. There’s no imposition on the clerks to readily implement that again. So it’s very likely that there won’t be a stay.

CAVANAUGH: Well, let’s take another call. Adam is calling from Encinitas. Good morning, Adam, and welcome to These Days.

ADAM (Caller, Encinitas): Yes, hi. I wanted to ask about the comparison between the fundamental right for marriage, as is, you know, historically based in the Constitution, and the fact that the Constitution didn’t fundamentally give women the right to vote and it didn’t abolish slavery but we did allow those guarantees in the future.

CAVANAUGH: Okay, let me have you comment on that, Robert.

TYLER: Well, you know, this comparison to a race-based issue is really is somewhat erroneous and, frankly, quite deceitful. All man are created equal. That’s one of the first things we’ve learned in our – in elementary school and so I think that that is, you know, just something that this – that helps describe why this is so different. This is not about race. This is, you know, skin color doesn’t change. The plaintiffs’ own witness got up on the witness stand and said that sexual orientation is fluid, it changes over time and things of this nature. So, really, it is – it is, I think, it’s somewhat of a misrepresentation to try to talk about this in the way of slavery or civil rights or make a race-based comparison. You know, this decision, the other commentator here said that the judge is duty bound to set aside his own moral convictions. That is exactly correct but this judge did not do that. He did not set aside his own moral convictions. And it’s easy when you’re applying the law to apply stricter standards than are actually applicable in order to get an outcome based ruling like this judge did. What he did is he applied standards that are not applicable when we’re talking about a fundamental right and that’s what’s going to be argued on appeal in this case.

CAVANAUGH: We’re taking your calls at 1-888-895-5727. You know, Matt, I know a lot of people who support same sex marriage were not in support of filing this lawsuit in federal court with the idea that it might ultimately wind up in the U.S. Supreme Court on a – before justices who are weighted, some people would say, towards a conservative point of view. So I’m wondering, what do you see as the future of this? Are you optimistic for the future of this ruling?

STEPHENS: You know, I am optimistic for the future of the ruling. Again, there’s a chance that it won’t get to the Supreme Court but if it does, Justice Kennedy will be, in all likelihood, the swing vote, and he wrote two critical opinions that Walker refers to in his decision, the Lawrence v. Garner (sic) decision and the Romer v. Evans decision. They have the legal underpinnings that would make recognition of marriage between same sex partners possible.

CAVANAUGH: And I’m wondering, let me ask you the same question, what do you think of the chances of this ruling if, indeed, Robert, it gets to the Supreme Court?

TYLER: I am sorry. What do you mean? What are the chances in history?

CAVANAUGH: What are the chances of it being upheld?

TYLER: You know, there’s a significant likelihood of it being upheld. I agree that it’s going to come down to Judge Stevens and, yes, Judge Stevens has – excuse me. Judge…



TYLER: …has commented and written on issues – Lawrence versus Texas is different. That’s about the sodomy laws and overturning sodomy laws that frankly don’t address the same issues that we’re addressing today. And the court has never found same sex marriage to be a right, and so we’ll see what happens.

CAVANAUGH: Okay. All right, we can leave it there then. I want to thank you both so much for talking to us about what comes next with the Prop 8 decision. Matt Stephens, thank you.

STEPHENS: Thank you.

CAVANAUGH: And Robert Tyler, thanks so much for joining us this morning.

TYLER: Thank you.

CAVANAUGH: We’re going to continue our conversation about Proposition 8 and talk a little bit about the background of this proposition here in California and what other states and what other countries have done to legalize same sex marriage. We’re taking your calls at 1-888-895-5727. You’re listening to These Days on KPBS.

CAVANAUGH: I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. We’re talking this hour about Proposition 8, basically what comes next and hearing your reactions to the ruling at 1-888-895-5727, that’s 1-888-895-KPBS. I’d like to welcome Barbara Cox, who is professor of Law at California Western School of Law and a national authority on sexual orientation and the law. And, Barbara, thank you for being – thank you for joining us this morning.

BARBARA COX (Law Professor, California Western School of Law): Happy to do so.

CAVANAUGH: Now we just asked two attorneys, well, we’ve been talking very heavily legal – legally oriented in the beginning of this hour. We’ve been sort of talking about the ruling itself and talking about the appeals process, and I know that you’ve studied this issue for many years. What’s your opinion on where popular opinion stands on this issue?

COX: Well, I think it’s been changing significantly over the past almost 30 years, since the first domestic partnership laws were adopted by various cities in California and in Wisconsin. And on marriage itself, there are many polls that are – that show it pretty close. Sometimes the polls show that the majority – usually it’s not a majority but the highest number are in favor of marriage and some say that they’re against marriage. It so much depends on what state you’re in and whether it’s a broad based question, asking people across the age ranges and different backgrounds or whether it’s more narrowly tailored. But I think the idea that same sex couples have the same needs for legal recognition of their unions as do opposite sex couples is an idea that has gained improving, you know, acceptance over time.

CAVANAUGH: Now, Judge Walker’s ruling overturning Proposition 8 has basically been characterized by a lot of people as a bold ruling. Do you see it as maybe a bit too bold, a bit too ahead of the curve of popular opinion?

COX: I don’t think so. I mean, I think it’s clear how tight the issue is in California because Prop 8 was a 52 to 48% decision, so he’s got 48% of Californians are clearly in agreement with him that Prop 8 should not have been passed. But it is true that he’s talking about issues of the fundamental right to marry was one of the bases for the ruling and we haven’t seen most of the state courts that have ruled in favor of marriage have not used the fundamental right to marry but instead have used equal protection, so it may be that that part of his decision is not what we’ve seen in the last ten years with marriages being recognized. But, you know, when you talk to people, lay people especially, and you say should same sex couples be able to marry, a lot of people say fundamental right to marry, and so even that issue may not be that far ahead. I think it’s a – it would clearly be a different result if, again, you did it in some of the forty-plus states who have adopted bans on marriage. The question would be a perhaps much closer call there.

CAVANAUGH: We’re taking your calls at 1-888-895-5727. Let’s hear from Jeffrey calling us from San Diego. Good morning, Jeffrey, and welcome to These Days.

JEFFREY (Caller, San Diego): Yeah. I just want to say that I really appreciate the historian that went before the court and stated that the definition of marriage has completely changed. They’ve – the argument was that, you know, marriage is between a man and a woman and that it’s always been that way, and it’s not always been that way. The definition of marriage has significantly changed. You know, it used to be – but over the last 200 years, women had no rights when they were married. And then subsequent to that, you know, if you were black you couldn’t marry someone that was white. And that has changed over time. So the dynamics of marriage or the definition of marriage has completely changed over time. So that’s my point.

CAVANAUGH: Well, Jeffrey, thank you so much for the call. I appreciate it. And that was a strong point that Judge Walker made in his finding of – his conclusion of law. Would you like to comment, Barbara?

COX: Yeah, I think he’s right that we have seen change in marriage over time and that, you know, the whole idea is that marriage should be reflecting how society views the couples that should be recognized as equal and that’s why Judge Walker said that it was an equal protection problem as well, because he said if you take the two same sex couples who were in that case and put them next to two opposite sex couples, the desire to marry is not different because they’re both women or both men. And so it’s asking society to recognize that while, you know, 50 years ago it wouldn’t have been something that the public would even anticipate, the fact that it wasn’t – that it was traditionally not allowed doesn’t really matter. You know, when I wrote my first article in the marriage area in 1994, there were only three states that actually prevented couples from marrying. No one had really thought about it before. And so it’s not as though there’s been a written rule in most state statutes that say you have to have a man and a woman. For most states, they didn’t even legislate on the question.

CAVANAUGH: That’s interesting. How long would you say the battle for same sex marriage has been going on here in California?

COX: Well, in the – when the sexual orientation nondiscrimination statute was passed in the nine – you know, and those issues were being raised in the 1970s is when the state actually adopted a restriction on marriage. And so it hasn’t been in the legislation in California except for the last 30 years, 35 years.

CAVANAUGH: 35 years. Yes?

COX: You know, there were couples back in the 1970s who sued to have their marriages recognized. One was a Minnesota case that did go to the Supreme Court and they summarily affirmed the denial of the right. It’s the only time the Supreme Court has actually issued any opinion on it and they didn’t rule on the question, they just affirmed the lower court’s opinion. So we really don’t have a decision from the Supreme Court squarely deciding this issue.

CAVANAUGH: Now what’s the legal status of same sex marriage across the United States? You say – Did you say 40 states have in their Constitutions now that marriage is between a man and a woman?

COX: It’s not in their Constitutions. I think it’s forty – let’s see, there are 5 states that allow marriage…


COX: …plus the District of Columbia. I believe there are 42 that have some kind of ban.


COX: Most of those are statutory but it’s twenty-something states, I’m sorry, I don’t know those specifics, that have a Constitutional amendment.


COX: And, you know, that same Constitutional amendment situation we saw with interracial marriage. When they struck down the interracial marriage bans, there were still 17 states that had Constitutional amendments prohibiting interracial couples to marry. So the fact that there are Constitutional amendments in many states wouldn’t necessarily be a reason the court wouldn’t decide the case in favor of Judge Walker’s ruling.

CAVANAUGH: And what about around the world? Where does the status of same sex marriage stand internationally?

COX: There are 10 different countries that allow marriage. Mexico City just recently last week had its ordinance upheld, so that’s a separate city. And then we have four different countries that will recognize a marriage from out of the country but they don’t actually allow them to marry in the country, such as Israel and a few other countries so, you know, one of those countries obviously is Canada right to our northern border…


COX: …where a lot of same sex couples from the U.S., including myself, have gone to get married.

CAVANAUGH: Now where does the federal Defense Of Marriage Act stand – fit into all this? The Prop 8 case perhaps going to the Supreme Court, what does DOMA do?

COX: Well, it’s interesting because just this summer we also had a ruling on a Massachusetts case brought by a Massachusetts married couple challenging the third section of DOMA that prevents them from getting federal benefits as a married couple would. And those plaintiffs and the State of Massachusetts sued and they also won their decision, saying that the section III of DOMA is unconstitutional because it treats married couples differently. Historically, the federal government had always used the state’s definition of who was married to decide who was married because they didn’t want to get involved with should they recognize interracial couples or underage couples or recently divorced couples, and so if the state said you were married, then the federal government said fine. And Massachusetts just sued and won and so that case is likely to be appealed although the Obama administration has not yet said it will appeal it. So those two cases could actually get to the Supreme Court at about the same time because they, the Massachusetts one will go to the First Circuit Court of Appeals and the one here in California will go to the Ninth Circuit and then both could end up at the Supreme Court.

CAVANAUGH: That’s interesting. Let’s see if we can squeeze in a phone call. Ed’s calling us from Lakeside. Good morning, Ed. Welcome to These Days.

ED (Caller, Lakeside): Good morning. I am very surprised that the scientific basis has settled the issue of choice and we have come a long way with the DNA unraveling. And in the Merck Manual, which is the most reliable source of medical information, the new issue of the Merck Manual of women’s and men’s health, states flatly that it is not a—not a matter of choice. And the reason why that’s important is that the popular opinion of many people is wrong on this issue because they’re taught by – especially by many churches that it is…

CAVANAUGH: That sex is – sexual orientation is a choice. And I do appreciate the phone call, Ed. I have to stop you because we’re kind of running out of time but thank you for your call. I wonder, Barbara, a lot of people say, you know, we won’t be – the same sex marriage won’t really be accepted by the population unless it’s voter approved somewhere. Is there any push to get same sex marriage approved by a vote of the people?

COX: You know, the problem with that is that popular opinion, you know, usually comes slowly. We saw originally when it went to Arizona to ban marriage that failed. That was the first vote that had failed in the U.S. Many people believe that in 2012, there will be a proposition on the ballot to rescind Prop 8 if the case isn’t over yet. And, you know, the case, the vote was so close here in California, it wouldn’t surprise me if a popular vote would win in California but, again, it’s a tough – you know, it’s – Think of the 17 states where interracial couples marriages were banned, think of Brown versus Board of Education where schools were segregated. We never would consider that you would have a popular vote on those issues and be, you know, and do anything other than expect the popular vote would continue the interracial marriage ban, would continue school segregation, and so it’s difficult to use the idea of voting in our country as something that should rule the day. We’ve always had the idea that minority groups should be protected by the courts against the tyranny of the masses, to quote the folks from the Federalist Papers who…


COX: …wrote the Constitution.

CAVANAUGH: Barbara Cox, thank you so much for joining us today. I really appreciate it.

COX: Thank you very much.

CAVANAUGH: I want to thank Barbara Cox and Matt Stephens, Robert Tyler and Dan Eaton, all of the guests who’ve participated today. And if you’d like to post your comment, please go online, Stay with us for hour two of These Days coming up in just a few minutes here on KPBS.

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