Local Analysis of SCOTUS Nominee and Gay Marriage

MAUREEN CAVANAUGH: In May 2008, the California Supreme Court made same-sex marriage legal. In May 2009, a majority on the same court upheld the Prop 8 voter-approved ban on same-sex marriage. So it seems the legal issue of gay marriage has now, more than ever, become a political hot potato. In much the same way, President Barack Obama's nomination of Sonia Sotomayor to the U.S. Supreme Court combines both legal and political issues. Her legal rulings and demeanor now enter the world of political spin and deal-making.

GUEST SPEAKER: Hi, Maureen. It's good to be here.

MAUREEN CAVANAUGH: Good morning. How are you?

GUEST SPEAKER: Very good. Thank you.

MAUREEN CAVANAUGH: And we'd like to invite our listeners to join the conversation. If you have questions about the legal basis for the Prop 8 ruling or comments about the politics of the Sonia Sotomayor nomination, give us a call. The number is 1-888-895-5727, well, Dan, let me start with you. Because that is one big legal ruling you have in front of you. How many pages is that Supreme Court --

GUEST SPEAKER: It works out to 185 printed pages. But who's is counting. That's double spaced to be fair to the court. But it includes a large number of footnotes. It was very thorough. The majority opinion alone runs to 136 pages and there were two other opinions, one of which was a dissenting opinion by Carlos Moreno.

MAUREEN CAVANAUGH: What was the breakdown?

GUEST SPEAKER: Well, the breakdown was that you had Chief Justice George writing the majority opinion, as he did, by the way, one year ago when the decision you just mentioned which held there was a constitutional right for same sex couples to marry under California law. There were 5 of other justices, including the three most conservative justice Baxter and Corrigan , voted with the majority. Kennard provided the fifth vote. Then there was a separate vote in support of the majority's conclusion that proposition 8 was not unconstitutional and that was provided by justice wurt ger. And then of course the difficulties dissenting opinion was provided by Carlos Moreno, who is also the only appointee on the California Supreme Court, democrat.

MAUREEN CAVANAUGH: I want to ask a little bit about the dissenting vote later.

GUEST SPEAKER: Right.

MAUREEN CAVANAUGH: But for now, just so we understand, what was the legal basis? What were the legal finding, what was the legal issue?

GUEST SPEAKER: The question before the Court was a fairly narrow one. And that is whether proposition 8 resulted in a revision, or as the Court defined that term, a structural change in the California Constitution. The California Supreme Court majority ruled that it did not. And why did it come to that conclusion? It came to that conclusion, because it held that proposition 8 did nothing to disturb the official recognition of the right of same sex couples to enjoy a family relationship. there was still an official recognition with the domestic partner act that the proposition 8 by removing the term marriage did nothing to disturb, and therefore, the core substantive right remained intact and the people were free to amend their Constitution as they did by just over 52 percent of the vote, to remove the destination marriage from the union of same sex couples.

MAUREEN CAVANAUGH: So on what grounds do they allow for the continued recognition of the 18,000 gay marriages that took place before Prop 8 passed.

GUEST SPEAKER: Well, that was actually more of a legal technical thing that only a lawyer can love. What they said is is that proposition 8 did not on its face apply backward looking or retroactively. It said on its face, proposition 8 was only forward looking, saying that only marriage between a man and woman shall be valid and recognized in the State of California, only 14 words. It said that by its terms the present tense and so forth, it was forward looking. It didn't look backwards. It meant that people who married, when the California Supreme Court recognized there was a constitutional right to do so, could not have that right disturbed, by an initiative that was passed that was forward looking. And so, you you have this unusual situation where you have roughly 18,000 couples, who did marry during this window of tumult as it turned out, whose rights and reliance on that constitutional right could not be disturbed by an initiative that was passed going forward.

MAUREEN CAVANAUGH: Let's touch on some of the political ramifications of this decision and Gloria, how have supporters of same sex marriage reacted to this decision?

GUEST SPEAKER: Well, as you would expect, they were livid in most cases and yet they kind of expected this to come down. I don't think it was a big surprise to them. The executive director of national center for lesbian rights said we must reverse proposition 8 at the ballot. So they are really ready to take this back to the people, back to the ballot, and the might do so as soon as 2010. Right here in San Diego, our own Mayor, Jerry Sanders says he was disappointed by the result. What mystified me, was on the Jay Leno show, Governor Schwartzeneger said that he was disappointed that it was the wrong thing to do, and yet, he was the one who vetoed legislation that would have established same sex marriage that was passed by the State Legislature, twice, in 2005and 2007, before it went to this vote of the people in Proposition 8. And yet, he's basically expressing the opinion that it shouldn't have happened.

GUEST SPEAKER: Well, in fairness though Gloria that was partly because the Governor recognized with the California Supreme Court struck down last year, indicated that the people really wanted to have a say on on this, and that it was bility something the Legislature unilaterally ought to do. When you look at his veto message it is clear in those two instances that he was saying this is not something the Legislature should do. This is something the people obviously care very strongly about, and he thought, anyway, that the legislative action ought to come from the people themselves, through the initiative process and that is in fact what happened. So there is some conceptual inconsistency, but ultimately it's reconcile able with the Governors's feeling.

GUEST SPEAKER: You asked about the supporters of same sex marriage. What you haven't asked about, what I will ask about in answer, is what about those who were supporters of Proposition 8? And I was looking at a piece that I just got on on e-mail today, this was from Eddie Punto, who is the Chief Legal Council of protect marriage and he and Kennith Starr were the two who appeared at the California Supreme Court, in the behalf of Proposition 8. And he says, you know, we beat enormous odds. We were against major national gay rights organizations, the State Attorney General, cities and counties, labor unions, law professors. He lists all those people. So what are they doing? They're asking for money. They say that it is very important at this point to start gearing up for what is certainly going to happen, which is going to be another attempt to get the people of California behind same sex marriage. And so, the whole idea is, that they're getting ready for the next fight. And he also mentioned, he said," we just learned that another challenge, this time in Federal Court has been filed against Prop 8. In other words, although this was a major victory of epic proportions, the war isn't over."

MAUREEN CAVANAUGH: Let me take acall. We have a couple of callers on the line that want to join in. Jim is in San Diego. Good morning Jim.

GUEST SPEAKER: Good morning.

MAUREEN CAVANAUGH: How can we help you?

GUEST SPEAKER: In 1963, the State of California passed the Rhumford Fair Housing Act and then in 1964 the following year, proposition 14 was approved by the voters by 65 percent, to overturn that fair housing act. It seems to be exactly a parallel to this, you know, the will of the people, went the wrong way. Ultimately, the state Supreme Court overturned it and the U.S. Supreme Court uphold that the following year. And I just want to see why no one has ever talked about that. That never became part of the conversation in this discussion. Like I say, they really moved in very parallel sort of way.

MAUREEN CAVANAUGH: Jim, you've come to the right place, because Dan is ready to talk about it.

DAN: Well, the California Supreme Court certainly had something to say about that. And it's very perceptive of you to raise it. The California Supreme Court invalidated that proposition, on the federal constitutional grounds not state. It's very important to understand that this particular case was limited interperting states constitution and whether the people were free to amend the state Constitution as they did. But the case that you just mentioned the federal housing act revision that was passed by the voter's was struck down on on federal grounds, that's why when Gloria mentioned this new lawsuit, is which I understand is being brought Ted Olson and David Boise who was on on opposite side, Bush versus Gore, to challenge proposition '8 federal grounds, because that is one question that the California Supreme Court never even mentioned in its opinion, and of course, the particular provision of the federal Constitution at issue is, 14th amendment. Equal protection.

MAUREEN CAVANAUGH: We have another caller, Pam in City Heights. Hi, Pam.

GUEST SPEAKER: Well, I think my question has been answered, which was why wasn't there further legal recourse. And I guess that's because of the constitutional question. I think many people are sick to death of the initiative process. We think it needs fixing or thrown out. I would have great hopes for a federal lawsuit over another initiative.

MAUREEN CAVANAUGH: Thank you for that Pam.

GLORIA: That initiative process actually goes back to 1911. The purpose of it was to make popular reform of state law easier to accomplish. In a state at that time was very wary of the collective wisdom of its elected officials But, it never really clarified the process of reforming the Constitution. Either by amendment or reform. What would actually be the way to change the constitution, and in a way, I think that the step that this Supreme Court took, was to, to say that, that this Constitution was not being totally changed by proposition 8. And I think that's the key there. That this was an amendment to the constitution. But would not change the constitution.

MAUREEN CAVANAUGH: Let me be quite clear, Dan, because this involves a state issues, there's no recourse to the U.S. Supreme Court. Is that correct?

DAN: Well, I don't see any federalgrounds that was raised by the parties. I realized I driftedinto lawyer speak. There was no question under thefederal Constitution that was raised. That's why this newlawsuit that was filed definitely does join the issue ofwhether Proposition 8 offends the United Statesconstitution. Which is a step, I suppose that proponent ofthe same sex marriage have not taken because of therelatively Supreme Court that we have now, at least themajority.

MAUREEN CAVANAUGH: Tell us a littlebit about the dissent. The one dissenting vote on on theCalifornia Supreme Court, about upholding Prop8.

GUEST SPEAKER: Justice CarlosMoreno was clear. 25 page double spaced opinion, hesaid, look, this strikes at the very heart of equal protectionfor homosexual couples. And therefore, that does strike atthe heart of an important right and can not be undone bythe initiative process. It is something that works a revision,and therefore, he would say, roposition 8 cannot stand.No, he conceded it does not work. Astructural change in the government, which is what themajority seemed to require, but he said, that is not the onlyway a revision, which requires by the way, two-thirdsapproval of each house of the California Legislature can beaffected. You can also have a revision where you have afundamental change in the whole quality of equal protection.And that he said was met here when you you strip the termmarriage from the same sex unions. He said to call it anarrow exception to call this a relatively narrow step, whichpreserves the core of the substantive rights is to ignore thevery heated passions that you saw on both sides. Andthat's why he said, I'm not, I do not agree with you, but ofcourse, he was in the minority.

MAUREEN CAVANAUGH: As Gloriamentioned, there was, among court watchers, there wasn'ttoo much surprise about this decision. And was thatbecause of the questions they were asking during the actualpresentation? Before the Court?

GUEST SPEAKER: Exactly right.Maureen. There was some strong questions, one, notably,from Kennard that I spoke about when I was on the show,some months ago. That said, look, what you are trying todo, is take away the people's right to amend their ownconstitution. And ultimately, that's what the Court focusedon as Gloria said. This was really about the people's rightto amend their constitution without it being called awholesale revision of the constitution. And because theCalifornia Supreme Court majority fement strongly, thepeople have that RIGHT, absent a structural change,proposition 8 had to stand, as constitutional.

MAUREEN CAVANAUGH: In that shortyear we were talking about, between the granting of thesame sex marriage rights in California, and the upholding ofproposition 8 there's been a lot that changed over thecountry, about same sex marriage.

GLORIA: Yes. Definitely. There is kindof a cultural shift, I think that people are feeling, that thesupporters of same sex marriage are taking heart from.Because, well, just go back to proposition 22. And the year2000. That one was the approved by 61 percent of thevoters. This time around proposition 8, it was a 52 percentto 42, a very small margin. And right now, what we'reseeing is that, before last fall, California was one of only twostates, the other was Massachusetts, to permit same sexmarriage.Since then, Iowa, Connecticut, Vermont,Maine have legalized it and the law makers in New York,New Jersey and New Hampshire are considering bills oftheir own. This is massive. Very often, you think,well, there goes California, there goes the country.Usually, it all starts here on on on theWest coast, and rolls eastward and the changes occur.But it's not happening this way. Now it's actually happeningin the less populous states, in some states, one even saysthere are more conservative states and same sex marriagehas been legalized by the legislaters.

MAUREEN CAVANAUGH: Now,you told us Gloria that the supporters of prop 8 areraising money in support of what they feel aregoing to be more challenges to proposition 8.What do the supporters of same sex marriage saythat they are going to do now?

GLORIA: Well, they're doing it already.let me just point out that the money spent on thatreferendum, on both sides, was the most money ever spentbefore, for a proposition in the history of the State ofCalifornia.So you can see it's a big deal.Right now, it looks as though theproponents of same sex marriage, is what we're talkingabout now.

MAUREEN CAVANAUGH: Yes.GLORIA: They are utilizing social media.Protests have started. They organized in a matter ofminutes, after the decision came down. So, they are usingTwitter, they're using face book, they're harnessingthe power of social media to organize multi city protests, sothat it's not just one city. But it's across the face ofCalifornia.

MAUREEN CAVANAUGH: I kind ofmean, is there a new proposition in the works?

GUEST SPEAKER: Yes.

MAUREEN CAVANAUGH: Is thereany pressure on the California Legislature to moveon this?

GLORIA: , they are focusing on on a newproposition, and I think the only question in the organizer'sminds is whether we should do it in 2010 or do it in2012. 2012 would give two more years for that cultural shiftto take place.

MAUREEN CAVANAUGH: Let'stake one last call on this issue. Good morningJoe.

JOE: I was wondering if the proposition,let's say, there was a call for putting a propositionbanning inter racial marriage again, or let's saybefore the, I know the Supreme Court alreadybanned that in the late '60s,

DAN: Loving versus Virginia. Right.

JOE: So I'mwondering, if the proposition was blatentlydiscriminating like that, can the people putsomething on there that's so discriminatory, thatyou know, it should fail on on those grounds alone,because it doesn't sound like theCourt reached that part. Correct?

DAN: Well, it sort of did. The kind ofthings that you're talking about, Joe, of course, are issueswhere it would not pass scrutiny under the federalconstitution. So, California cannot do what the federalconstitution guarantees. The federal constitution at least sofar has not been recognized as granting a right of same sexmarriage. But the kinds of minority rights that you seem tobe suggesting are protected under the federal constitutionand the California constitution cannot undermine that.But more to your point, the California Supreme Courtaddressed this, what they called "a parade of horribles,"in their opinion, and they said, look, we are onlygoing to focus on the narrow issue before us.We recognizesome of the issues, and certainly Carlos Morena, thedissenting justice had strong views along the same lines.That you cannot take away a right of a minority, by a simplejorts vote of initiative. Nonetheless, the California SupremeCourt said we're not going to deal with that. We're goingto answer accordingly.

MAUREEN CAVANAUGH: We have totake a short break. We will be back. And when we comeback, we'll be talking about the nomination of SoniaSotomayor, to the U.S. Supreme Court.You've been listening to These Days onKPBS.

MAUREEN CAVANAUGH: Welcomeback. My guests are legal analyst. Dan Eaton and KPBSpolitical correspondent, Gloria Penner. We're talking aboutthe legal and political ramification of some of the big stories inthe news this week. Right now we're going to focus onPresident Obama's nomination of Sonia Sotomayor to the U.S.Supreme Court. Once again, I want to start withyou, because I want you to tell us a little bit about SoniaSotomayor, last time you were here, she was on the top ofyour short list.

DAN: She was.

MAUREEN CAVANAUGH: Apparently,she was on top of the president's list. What are herqualifications?

DAN: Well, for one thing, she sat on thefederal Bench for about 17 years. She started on the DistrictCourt, having been appointed originally in 1991, bypresident George H W Bush, the first President Bush. Bythe way, don't make too much of that. That was acompromise. She was recommended by Democratic Daniel PatrickMoynahan. And they were thinking a Democrat might be electedthe following year, which turned out to happen. But shewas elevated to the court of appeals in 1998 by PresidentBill Clinton to the second circuit court of appeals which sitsprimarily in New York. And she has sat there ever since,she is obviously Hispanic, she is Puerto Rican, A verycompelling personal story, obviously, brought up in theBronx by a mother after her father died at a relatively youngage, went to Princeton and then went to Yale law school,which we won't hold against her.

MAUREEN CAVANAUGH: Harvard man.

DAN: Right. And then he she wentahead and pursued a very interesting career, having servedas a prosecutor and then worked in private practice beforeultimately ascending the bench. So she has a variety ofexperiences and she would be the only justice if theseconfirmed to have trial court experience on the currentbench much all of the others have judicial experience, butthey all only have experience at the appellate court level.

MAUREEN CAVANAUGH: That'sinteresting. What I've heard, Dan, is despite what thepeople who may oppose this nomination are saying, she'snot a slam, dunk liberal?

DAN: No. No, there are some rulings inher past, Maureen, that suggest that she weighs the issuessomewhat. There was a rulingsome years ago concerning the first amendment where shesuggested racist speech that the majority did not like.But she was dissenting there. She ruled against anti,pro -- I get this wrong.So often. Pro choice groups, I guess isthe right term.

MAUREEN CAVANAUGH: Yes.DAN: She ruled against pro choicegroups seeking to invalidate the use of federal law,restricting the use of federal money and so on. Butgenerally her rulings tend to the liberal side. So I doubtthere is very much surprises if and when she's confirmed.

MAUREEN CAVANAUGH: Gloria, tell usabout the politics involved in nominating the first Latina tothe United States Supreme Court.

GLORIA: Well, clearly, this does bring ina whole sector of the United States population that wouldlike to be represented in high places. Even AlbertoGonzalez, remember him?MAUREEN CAVANAUGH: FormerAttorney General.

GLORIA: He was former AttorneyGeneral, who was forced to resign after several of ourfederal prosecutors, our yes, federal prosecutors wereasked to step down, for allegedly political reasons. And heis a Republican and he seemed very enthusiastic about thisnomination.So that's a good thing. The other goodthing is that she, if confirmed, she will only be the thirdwoman justice in the history of the nation's highest court. Imean, that's kind of an unbelievable thing.

DAN: You could appoint women for thenext hundred years and still not quite catch up, Gloria.

GLORIA: But at least we're on our way.This is true. As Hillary Clinton would have said, we've gotthree cracks now in that glass ceiling, if she is confirmed.So you you really can't go wrong, you're a pointingsomebody who belongs to an ethnically identifiablecategory in the United States population, you also havea woman and you have someone who can't be easily pigeonholdor categorized. Here's a woman who, as Dansaid and as we've been reading, literally hauled herself upby bootstraps with the help of her mom. Who worked asa nurse to support her. And her brother became adoctor, you know, my brother the doctor kind of thing. Sothis was a family that has accomplished despite reallywith bad odds.

MAUREEN CAVANAUGH: Following upon that, if she is confirmed, what kind of a confirmationbattle do you think that Sonia Sotomayor might face?

GUEST SPEAKER: Oh, get ready forthis. It is going to be a fierce one. The sides have alreadysort of lined up, for example, the conservetives have saidthat, Mr. Obama's emphasis on a justice with empathy,that was the word he used when he talked about thequalifications he wanted for his new supreme justice, wouldinsure that the nominee would be an activist. So that wordactivist is going to come forth over and over again. Will shebecome an activist judge. Exactly what is an activist judge?Somebody who has a point of view. Who is an advocate fora cause and doesn't necessarily rule by, go by the rule oflaw. Either Republicans are setting this up, the conservativescertainly are ready for this.I got a wonderful e-mail from thelibertarians whrks I say wonderful, I mean, they're so clear.They blasted Sonia Sotomayor as their pick. This wasn'tjust a maybe. This was a true blast. They said that herpast rulings demonstrate that public employers shoulddiscriminate in hiring based on race and Dan, I bet you canreally talk about that one.

DAN: Race card, race card, race card,You're going to hear that over and over again. Thatof course is the case currently pending before the UnitedStates Supreme Court involve ting New Haven, Connectcuit firefighters of reverse discrimination, where they refused oneHispanic, when no blacks qualified for promotion. You'regoing to hear a lot about that, because she was part of athree judge panel that summarily agreed with the districtcourt opinion in a one paragraph decision, actually in theCourt of appeals that said, it's tough but, the New Havencivil service commission was between a rock and a hard placeand they were trying to comply with Title 7. But you're goingto hear a lot of discussion of this case. What's interesting isthat the U.S. Supreme Court is likely to reverse thatdecision, before her confirmation hearings even begin.Based on their questioning, again, the Supreme Court'squestioning, and that's going to create a very interestingdynamic when she goes before the senators I suspect.

MAUREEN CAVANAUGH: Actually --

GLORIA: The Libertarians pointed out,she's had her rulings thrown out of the court, a troublingfour times. That's quite a score, and the Republicans, youknow, that's almost their job here, the Republicans on theUnited States Senate, they're the ones who have to reallydo the severe questioning, because it sure looks like theDemocrats, this is so bipartisan, I mean, so partisan.The Democrats are definitely gung-ho forher. I haven't heard too many criticisms there. But asRepublican senators, Mitch McConnely and John of Texas.They said her confirmation is going to be alengthy process.

MAUREEN CAVANAUGH: That's odd,Dan, because, you know, we were talking before when wewere talking about possible Sonia Sotomayor a nominationto the Supreme Court, being more liberal on the SupremeCourt is not necessarily going to upset the liberalconservative balance on the Court.

DAN: She's replacing somebody whohas been left leaning, who was appointed by the first PresidentBush under very different expectations, it's fair to say. Acouple of things though about some of the things Gloriasaid, all of the criticism has not really been coming from theright. The new Republic published a piece this month thattalked about some of the criticism she has gotten fromsome of her colleagues and clerks, but it's all veryanecdotal. The other thing about a lengthy confirmationprocess, I had dinner, breaking news here,with Senator ArlenSpector, and my former boss.

GLORIA: You should have invited me.

DAN: That's right. It would have been aninteresting supper I'm sure. He said he expects the confirmationto be over by the end of July. As a matter of fact when you look at the calendar,Maureen, there really isn't that much time, if they're going tohave re -seated by the first Monday in October. And beforethat, of course when the Court decides what cases it's goingto hear.And if that happened by the way, if we'rereally talking about a month from nomination toconfirmation, that would be remarkably fast by thestandards of recent Supreme Court nominations. So it willbe very interesting to see whether Senator Spectorsconclusion comes true. The reason it would have to cometrue, if she's going to be appointed in time, they are going toget out of Dodge in August, the Senate, nobody wants to bein Washington, D.C. in August. Therefore, if it's not doneby July, you're looking at September or maybe October.But I mean, who knows what's going to happen. This isgoing to be a very interesting process and it is indeedthe job of the, with George Bush's nomination of Robertsand Alito, to insure that the process is full and fair andI think you're going to see some very careful and thoughtfulquestions from the Republican minority.

GLORIA: Just to do the time thing withyou, Maureen and Dan, from the Senate Republican whip,John Carl of Arizona, he said that it took 73 days to confirmconservative Chief Justice John Roberts. That was whenthe Senate was controlled by the Republicans and 93 daysto confirm conservative justice Sam Alito. So in orderto complete the confirmation process by August, it wouldhave to be within 66 days.

DAN: Lickety Split. That's a legalterm. So it would be really phenomenal. If this really doeshappen on what Senator Spector said was the projectedtimetable, it would be remarkably fast. But there are verylimited tools at the Republican's disposal to delay thenomination.

GLORIA: There's one thing they keepbringing up, and that was during one of her statements,back, I think at the Duke University School of Law. She wason a panel about four years ago and she said, quote, allof the legal defense funds out there, they're looking forpeople with Court of Appeals experience, because it is theCourt of Appeals where policy is made.

DAN: You are going to hear that an awfullot. And you're going to hear a comment that she madeabout the experiences that judges properly bring to theirdecision making and how Latinas make superior decisionsto white men. You're going to hear these commentscome back again and again. So you're right, there is noquestion, Gloria that these examples are going to come backand be dissected.

MAUREEN CAVANAUGH: I just want toput in a last word here, rather strange statistic. If SoniaSotomayor is confirmed for the United States SupremeCourt, she will be one of six Roman Catholic justices onthe United States Supreme Court. Incredible.DAN: It really is.

GLORIA: That's a big change.

MAUREEN CAVANAUGH: We are goingto talk much more about the confirmations I want to thank my guests. We have to leave right now. Gloria Penner,Host of Editors Round Table and San Diego Week Friday's at7 p.m. on on KPBS TV and you can read her weekly blog,Political Fix. Big thank you to These Days Legal Analyst, DanEaton.

DAN: Sure.