What Difference Will Presidential Support Of Same-Sex Marriage Make To Prop 8?
CAVANAUGH: Our stop story on Midday Edition, President Obama's announcement of support for same-sex marriage was greeted by celebrations among gay activists in San Diego and across California. Although the president's support may bring more strength to the issue of same-sex marriage, will it do anything to change the ongoing legal battle in California over prop 8? Joining me to discuss the, are Matt Stevens, partner where progressive law group. And instructor of constitutional law in UC San Diego. He's been working on LGBT rights for a decade. Welcome. STEPHENS: Thank you very much. CAVANAUGH: Jennifer Roback Morse has a PhD. In economics, founder of the Ruth institute, and a spokes person for the national organization for marriage. Hi. MORSE: Hi, thanks Maureen. CAVANAUGH: I'd like to get both of your reactions to President Obama's announcement yesterday that he now supports same-sex marriage. Let me start with you, Matt. STEPHENS: Well, well, it's a wonderful statement, and an important one given what happened in North Carolina. And I think that the president said exactly how he felt about the issues, that this has been an evolutionary process for him, and he is now in line with the majority of Americans who understand that this is about equality. CAVANAUGH: And just remind us what happened in North Carolina this week, if anybody hasn't heard about it. STEPHENS: There was a constitutional amendment that passed that broadly prohibits same-sex relationships, legal recognition, all the way from domestic partnership to marriage, and it affects unmarried mixed sex couples as well. CAVANAUGH: Now, Jennifer, your reaction to the announcement yesterday by President Obama. MORSE: Well, honestly I can't say that I was really surprised because the signs of that have been present from the very beginning of his administration. After all, this is a person who when he had a vacancy in the E, OC, the chief law enforcement office for antidiscrimination, he didn't appoint an African American. He appointed a lesbian, gay activist who has specifically said in any conflict between religious liberty and sexual liberty, that she thinks sexual liberty should win. We already kind of knew that was a higher priority for him in spite of his African American base that is really deeply religious. So I wasn't all that surprised. But I must say I think that from my perspective, as a social conservative, somebody who works with social conservatives all the time, he's really energized our base with this move because people, the very people who were lukewarm about Mitt Romney are now very energetic and passionate about defeating Obama in November. So I don't know what he did on his side, but on our side, I think he's energized the base. CAVANAUGH: We also have another reaction here. Yesterday, we asked San Diego mayor, Jerry Sanders, what he thought of the president's announcement. He announced his own change of heart on same-sex marriage several years ago. (AUDIO RECORDING:) SANDERS: Well, I think society is obviously heading toward recognizing equality for all in the marriage arena. I think you're going to find some states that may think that voters are able to determine that. We found in California that wasn't the case, that this is really an equality issue, it's not one that you can simply vote on and have a lot of rhetoric around it. It's one that the constitution guarantees. So I think that they'll find that they'll be passed by and history won't judge them well, and I think history is going to judge President Obama very well. He's the first president to come out and support this. And the leader of the United States doing that I think is very important and historic. CAVANAUGH: As we just heard, mayor Sanders talks about the perils of deciding same-sex marriage at the ballot box. That's just what California did in 2008. Proposition 8, which banned same-sex marriage was approved by voters. That vote started a legal battle which continues. And Matt, just so everybody is on the same page in understanding what's going on here, remind us what happened earlier this year at the California Supreme Court -- I'm sorry, are at the 9th circuit regarding prop 8. STEPHENS: Right, the ninth circuit decided that prop 8 was in fact unconstitutional because it denied a base of dignity to a particular category without a legitimate reason for having done so. CAVANAUGH: And it overturned prop 8? STEPHENS: Yes, it did. CAVANAUGH: Now, Jennifer, is the national organization for marriage part of the group that is pursuing the appeal of that decision? MORSE: You know, honestly, we're not a legal organization. But we do help support those who are doing the legal work. So I would say we're certainly part of the broad coalition involved in that, absolutely. CAVANAUGH: And can I ask you what that appeal is asking the 9th circuit court to do? MORSE: Well, are it's my understanding that the next stop is the Supreme Court of the United States. So -- and I know for sure that the litigators on our side, our team of litigators have had in mind from the very beginning the kind of arguments that would appeal to the Supreme Court and the members of the Supreme Court and those kind of federal reasonings. So what we'd be asking is for prop 8 to be reinstated. I don't know what's the proper legal term for that. I'm not a lawyer. I'm a local economist. But we'd be asking that it be reinstated. And just so everyone understands, in point of fact, proposition 8 is still the law of California. It is part of our constitution. And no same-sex wedding licenses have been given out since November of 2008. CAVANAUGH: I was going to ask just that. Upon just to backtrack a little bit, Matt, so we're specifically legally clear on this, has the 9th circuit, are the full 9th circuit agreed to take on the prop 8 issue on appeal? STEPHENS: The current status is that the Court has put a state in effect. The folks who want it to be upheld have asked for an en banc review, which means the entire panel, or almost the entire panel. That has not yet happened. So the next stage would be to have potentially another hearing at the 9th circuit with a fuller panel before going on to the U.S. Supreme Court. CAVANAUGH: Do you know when -- do we have any sense as to when the 9th circuit might make that determination? STEPHENS: Yeah, it's a little bit fuzzy, actually. Because they aren't on the clock to empanel the en banc panel. So we do not know. CAVANAUGH: Okay. All righty. I want to ask you both. Let me start with you this time, Jennifer. What effect do you think the president's change of heart on same-sex marriage might have on these legal challenges? MORSE: Honestly, I don't think -- the only possible way that could affect it is in some kind of indirect way. So in other words, the judiciary iary, and the executive branch are independent branches of government, and we know politicians can say anything they want, and the Courts are supposed to be independent of all of that. And I think our courts will be independent of that. So in a direct sense, nothing. It will have no impact at all. Indirectly, I think it has signalled to people that vacancies in the judicial system are extremely important. So I think that's one of the things that will activate people on both sides of the issue to make sure that their presidential candidate wins. Because if there is a vacancy in the Supreme Court, everybody wants to have something to say about who's going to fill it because it's obviously going to continue down that path. So Obama being clear about this issue, which I think he's been very coy about it, I don't think very many people are actually surprised that this is what he thinks. But now by being clear about it, I think the stakes are just that much clearer. CAVANAUGH: Matt, would you agree, at least in part with what Jennifer said about the fact that this will not influence the legal decision that much? STEPHENS: Well, I think there's an interesting interrelationship. And many Republican-appointed judges, and our Republican mayor, have come to the correct legal notion, legal notion, not social notion, that equality carries the day. And I think President Obama's remarks actually were reflective of the things that he's read and seen in legal opinions. So I think there's an interesting interrelationship between how this may impact continued legal discussion about it. But we already know the correct legal answer. CAVANAUGH: And I imagine you don't agree, Jennifer? MORSE: Well, I think if you look at it strictly as a civil rights issue, even that I think is questionable to say that. Any number of courts have held that the gendered definition of marriage is perfectly okay. Many federal courts have said that. And if you look at the differences between when the Courts say that the gender requirement is constitutional and acceptable and when that say no, it's discrimination, are the difference is interesting. It focuses on what is the essential public purpose of marriage. And so when courts have said the essential public purpose of marriage has something to do, anything to do with procreation and child bearing Ethen they can say, well, if that's true, the essential public purpose of marriage is to attach mothers and fathers to the children and to one another. Well then plainly, same-sex couples and opposite sex couples are situated differently with respect to that purpose, so having somewhat surround legal institutions surrounding those issues is okay. But if on the other hand, if they say, as judge walker did, that procreation is not even on the list of purposes, that they bumped that all the way down to the bottom of the list, and talk about people's feelings, and sharing resources, and public recognition, all of those things, when they think that that is the public purpose of marriage, they say, oh, gosh, it's discriminatory. We've got to do something. CAVANAUGH: Right. Let me ask Matt. Jennifer brought up an important point. The same-sex couples in California cannot be married now; is that correct? STEPHENS: That is correct. There are 18,000 married couples that are same-sex couples, but at this time, nothing further same-sex marriages can take place. CAVANAUGH: How about the same-sex marriages that took place in that small window of time between the California Supreme Court ruling and prop 8? Are those marriages valid and legally recognized by the state? STEPHENS: Yes, they are. CAVANAUGH: And what about -- what about couples from other states where same-sex marriage is legal? STEPHENS: There are nine other states that recognize -- CAVANAUGH: And they come to California is what I was saying. Are their marriages also recognized as legal and valid here? STEPHENS: That's a question that would have to be tested. CAVANAUGH: Ah, oh, okay. STEPHENS: We don't yet know the answer. But presumably, they would be recognized based on the Court rulings that we have had. CAVANAUGH: Now, this week's vote, as you mentioned in North Carolina, not only outlaws same-sex marriage, but also civil unions, and it seems to show how strongly some people still oppose this issue. If prop 8 does go before the U.S. Supreme Court, do you think that it will be upheld? In other words the ban on same-sex marriage will continue in California? STEPHENS: I do not think will be upheld. I think it will be overturned, and I think the key vote on the Court is going to be justice Kennedy. I think that he understands the importance of equality and that you can't right discrimination into a state constitution. I think he'll see the federal principles behind this. I think he'll also understand that this isn't about procreation. We don't ask people whether they're going to procreate before we give them a marriage license, and the state literally does not have a legitimate interest, just like they don't have a legitimate interest to separate people on the basis of color before allowing them to marry. CAVANAUGH: Right. Let me ask you, Jennifer, many of the opponents of same-sex marriage in California have said for quite some time that the Courts are overruling the will of the people here. The people voted for prop 8. Now the Courts have decided that they're going to overturn that. The latest California field poll shows that there's been a real shift in attitudes in California. 59% of people here now say that they support same-sex marriage. So I wonder if that sort of undermines the argument that, you know that the people have spoken and the Courts are just trying to run away with this issue. I MORSE: I think the thing that has people upset is the idea that the Courts, and the heavy hand of the state, can overturn what is the popular will. And I think people are also upset about the fact that we keep keep hearing from the proponents of that this is inevitable, it's all evolving, it's the natural march of history, and all this kind of stuff, which we heard Jerry Sanders play in that clip. But if it's really so inevitable, why do you have to work so hard to make the inevitable happen? I think it's not inevitable at all. And I think that the polls are very suspect. The polls in North Carolina going into that vote the other day showed up until the day before that it was going to go down in flames. So the polling is -- I think not trustworthy. The poll that counts is the election. And so I think that what the people are trying to say is that there's more at stake than equality. And just to respond to something that my colleague here said about race, look, race is not an essential feature of marriage. And gender is an essential feature of marriage. And this is what we've been trying to say. And in fact, the State of Virginia knew perfectly well that Mr. And Mrs. Lovin account participate in the procreative purpose of marriage. That's what they were freaked out about. They didn't want little mixed race children running around. So I think it's quite clear that an interracial couple can participate in the essential public purpose of marriage. And so therefore that argument I just don't think really works. And I think that's part of why so many African Americans are so reriftant to the idea of make it a clean shot between the black civil rights movement, and the gay rights movement. They have don't see it as being the same. CAVANAUGH: We have kept this, and we have hardly any time left. We've kept our discussion pretty much focused on the legalities at this point. And it seems, Jennifer, that what you're saying is legally and socially, it's in the public interests for us to maintain traditional marriage between a man and a woman for procreative purposes. And Matt, I just want to bring it to you, because accepting same-sex marriage is a big change in attitude for a lot of people. Apparently President Obama struggled with it. And I'm wondering what you say to people who are still struggling with this issue. STEPHENS: I say it's appropriate to question and to think it through exactly the way that President Obama did it. And part of how he came to where he is now is he spent time with people who are sharing their relationships in this way, who are raising their children in these kinds of families. And he asked himself can I explain to my daughters that their friends who have same-sex parents should not have the same legal recognitions as Michele and I have? And he couldn't fairly and honestly tell them that those people need to be treated differently under the United States constitution. CAVANAUGH: We have to end it there. I have been speaking with attorney Matt Stevens. Jennifer roback Morris, a spokes person for the national organization for marriage. Thank you both very much. MORSE: You're welcome. STEPHENS: Thank you. MORSE: Thanks for having us.
Matt Stephens, a partner in the San Diego Progressive Law Group who has been working on LGBT civil rights for a decade, said the president's announcement could also help the legal cause of Proposition 8, which is working its way through the appeal process.
That's because Obama's change of heart will "lend support to any judge who might be on the fence for personal reasons," Stephens said.
Jennifer Roback Morse, spokesperson for the National Organization for Marriage and founder of the anti-gay marriage Ruth Institute, agreed that the president has power to influence marriage policy.
"As the chief executive officer of the United States of America, President Obama has the power to do a lot of things to move things in that direction, and in fact, to be honest, he already has," she said. She said Obama refused to defend the Defense of Marriage Act, which she said it was his responsibility to uphold.
She added that Obama's decision on same-sex marriage has "energized the base," bringing increased support for presumptive GOP nominee Mitt Romney by people who had lukewarm feelings toward him before.
Roback said gay marriage should not be allowed because it conflicts with the "essential public purpose of marriage."
"I think the essential public purpose of marriage, as opposed to all the private purposes and private reasons people have for getting married, is to attach mothers and fathers to their children and to one another," she said. "If you didn't need to get that purpose done, I don't think anyone would have ever thought of lifelong sexual exclusivity or recognizing certain relationships as being special and different for mothers. If not for that purpose, you wouldn't have marriage at all."
Stephens said the reason Obama left room for each state to define marriage is "to give people room to evolve."
"The conversation will continue, but there has to be a federal baseline of rights," he said. "You can't distinguish a class of people and make them less valued at the hands of their state."