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Prop 8 Overturned, What's Next?

Prop 8 Overturned, What's Next?
Proposition 8 -- California's ban on same-sex marriage was overturned Wednesday in federal court. Chief District Judge Vaughn Walker wrote in his ruling "Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation." Proponents of prop 8 have appealed the ruling to the U.S. 9th circuit court of appeals.

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 reaction and reasoning related to the overturning of the same sex marriage ban in California, the power of the people when voters get a ballot measure in November that could diminish the City of San Diego’s financial problems and how some city and county officials are taking advantage of residents’ apathy and disinterest and raking in high salaries. The editors with me today are David Rolland, editor of San Diego CityBeat. David, it’s good to see you again.

DAVID ROLLAND (Editor, San Diego CityBeat): It’s delightful to be here.

PENNER: Good. And Ricky Young, watchdog editor for the San Diego Union-Tribune. Ricky, welcome back.


RICKY YOUNG (Watchdog Editor, San Diego Union-Tribune): A glorious morning to you, Gloria.

PENNER: Thank you. And David King, president and CEO of It’s good to see you as well, David.

DAVID KING (President/CEO, Good to see you, Gloria.

PENNER: And our number so that we can hear from you is 1-888-895-5727, that’s 895-KPBS. Well, it’s not often that defendants in a court case are pleased when the judge finds for the plaintiff but that’s what happened on Wednesday in Perry v. Schwarzenegger, the Prop 8 trial. The governor, along with Attorney General Jerry Brown and a few other California officials, was on the receiving end of a court suit seeking to get the state’s ban on same sex marriage overturned. A federal judge did just that, and according to a Los Angeles Times blog, the governor praised the decision. So, David, U.S. District Court Judge Vaughn Walker found Proposition 8 unconstitutional. Clarify for us on what grounds.

ROLLAND: Well, his – on the grounds of equal protection clause in the U.S. Constitution that it is – he found that the proponents of the proposition really failed to make much of a case at all during the trial. The interesting – the most interesting analyses that I’ve read of this ruling is that he was really kind of speaking directly to Supreme Court Justice Anthony Kennedy, trying to go right down his, Kennedy’s, playbook, I suppose, in preparation for this to reach the U.S. Supreme Court. Really laid out – I believe it was a 136-page ruling that really meticulously laid out the findings of fact in the case and how the plaintiffs in the case really, really just – just trounced the other side in terms of offering factual findings to support their position.


PENNER: I’m going to hang onto that idea that you just posed, that he was speaking directly to a member of the U.S. Supreme Court because we’re going to get to that and that’s really an interesting leap. But for some people, it’s not really a leap. I guess the question, David King, is how surprising is Judge Walker’s ruling?

KING: Well, I think the people monitoring this case weren’t surprised where he came out because I think the whole essence of conducting a trial on this case of a test of a – You can look at the statute itself, look at, rather, the Constitutional amendment that California voters passed, and assess it on its face, look at the text of it. And what exactly was the purpose of having a trial and making findings of fact about why the particular proponents advanced this particular, you know, amendment to the California Constitution and what are the reasons against it? What findings of fact were even necessary? It is building up a record and it seems as though, you know, the reason for building up a record is to justify the fact of the outcome that he came to, which is that, okay, there’s not a record that supports – And, again, the holding was based on both the due process clause and the equal protection clause but the finding was that there’s no evidence of any rational basis to define marriage as a relationship between a man and a woman and not a relationship between people of the same sex. You know, finding evidence for a rational basis seems kind of – what is the purpose of going through that exercise? So I…

PENNER: So are you agreeing with David Rolland that the purpose of going through the exercise was to position this for ultimate decision by the U.S. Supreme Court?

KING: I think that – absolutely. This is going to go up to the Supreme Court and I think that the Supreme Court will look at the amendment on its text. It doesn’t really need an evidentiary record of what sort of facts can be found to show the rational basis for defining marriage that way.

PENNER: Okay, I’m going to turn to you, Ricky Young, and I’m going to ask you the question that I’m first going to ask our audience. Proposition 8 was approved by 52% of the voters in 2008, that’s more than the majority needed. Has this ruling that has overturned a proposition that was approved by California voters undermined the Democratic process in California? I’d like to hear from you. Our number is 1-888-895-5727, 895-KPBS. Okay, Ricky, you heard my question. What’s your opinion?

YOUNG: Do I need to dial in first or am I okay just talking?

PENNER: I thought you just did. Go ahead, Ricky.

YOUNG: You know, I think there’s certainly a vein of opinion out there that says, and probably a sizeable one, that the courts are, you know, undermining, trashing the will of the voters, and this is a pretty common refrain in California, you know, and across the country, activist judges and all this sort of thing. The Ninth Circuit in particular, I think, is known for fairly liberal rulings. These are the ones who tossed out the Pledge of Allegiance, as I recall, several years ago. And this tends to make people pretty mad. You can look at our Letters to the Editor today, there’s a whole bunch of them on this subject and several of them say exactly that. Now, on the other side, and tucked down toward the bottom of the Letters to the Editor today is one that says, you know, majority rule is not a universal good and it goes through, you know, in Nazi Germany a majority of the people supported discrimination against Jews, and in the south the majority of people supported slavery, etcetera. And so, you know, the flip side of that is that the way we set up our democracy, the majority is, you know, cannot run roughshod over others.

PENNER: That’s Ricky Young and he is the watchdog editor for the San Diego Union-Tribune, in case you were wondering which Letters to the Editor he was talking about. It was Letters to the Editor of the Union-Tribune. I think that’s a really, really interesting point. And you mentioned the Ninth Circuit, the U.S. Circuit, that would be the appeals court that this would go to and already the appeal has been filed by those who are for the same sex marriage ban.

YOUNG: Well, I thought this guy was one guy on that court and the next process would be to go to a three-judge panel of that court…

PENNER: Right.

YOUNG: …then to the whole court and then to the Supreme Court, and I think they’re trying to short circuit that and go right to the Supreme Court.

PENNER: Okay, well, let’s listen to our listeners now and see what they have to say. And we’re going to start with – Who are we starting with this morning? Are we starting with Reggie in Chula Vista? Reggie, are you there?

REGGIE (Caller, Chula Vista): Yes, I’m here.

PENNER: Okay, go ahead, Reggie. You’re on with the editors.

REGGIE: Well, basically, I think it’s a civil rights issue because I’m from the south, Texas, and I can recall when there was a lot of discrimination and they had to change some laws but the majority of the people, they did not like those laws to be changed. They wanted the Jim Crow laws to stay in place. And so I remember growing up during that era and I remember when I was young and I said I will never, ever, ever want this to happen to anyone else because it’s very, very painful. And I don’t understand why if someone gets married, same sex, I don’t understand why it would hurt someone else. I don’t see how.

PENNER: Okay. Thank you very much for your opinion, Reggie. David, that really has been the argument, that sometimes when the majority rules, the majority rules incorrectly.

ROLLAND: Yes, and getting back to Ricky’s point that this is – shows how our amazing system of government and checks and balances works. You’re not allowed to discriminate against a minority population in this country. And I think our caller basically echoes what we at CityBeat have been saying all along about this, and this is a major, major – This is the new civil rights battle of the current era, and so this is a colossal benchmark on – in the timeline of civil rights in America. And Judge Walker essentially said that he could find no other rationale on the part of the proponents of Prop 8 for what they’re trying to do than discrimination, that same sex couples are superior – or, I’m sorry, opposite sex couples are superior to same sex couples, that’s what he concluded. And I just couldn’t be happier about this.

PENNER: Well, David, do you think that public opinion has changed in California in regard to same sex marriage since the voters approved the ban on same sex marriage in 2008?

ROLLAND: I think – I don’t know. I don’t know if it has changed empirically. I haven’t looked at any polls recently but I believe that over time, very gradually, yes, it’s changing. Younger people tend to support the equal rights for same sex couples.

PENNER: So as we older people die out, you think that that other – that the younger generation’s attitude will take over generally.

ROLLAND: Yes, and I would like the older people to hurry up about that.

PENNER: Well, David, we don’t want to see you go too prematurely. We really don’t. Ricky.

YOUNG: Yeah, the – I think the changes may be more gradual than some people would like. The Field Poll just before, you know, the year that the Prop 8 vote was taken and then one just about a couple of weeks ago showed attitudes toward same sex marriage to be pretty much the same. I think there was 51% support of same sex marriage but then when the option of, you know, civil unions or equally legal – equally similar benefits without marriage were offered, only 44% still supported same sex marriage.

PENNER: David King.

KING: David and Ricky are both correct that the Constitution provides limits on how democratic our government is, that there are checks upon what the people can vote and what they can approve. The question is, and it’ll come up to the Supreme Court and it’ll go to the very fundamental essence of how to interpret our Constitution, whether this is a check upon whether the limits of the democratic process. At the time that the first amendment was written, the Constitution itself, the Bill of Rights, there were gays in America. At the time that the Bill of Rights was written, there was marriage in America. At the time of the 14th Amendment, after the Civil War, there were gays in America. And at the time of – there was marriage. Was that what the founders intended? Was it what the adopters of the 14th Amendment intended? And when you get the traditional, you get the Scalias, you get the Thomas, the more – going back to the fundamental meaning of the Constitution at the time it was written, that they’re going to come out against this. You’re going to have the other class of people who believe that it’s more of a living, evolving document…

PENNER: Right.

KING: …and they’re going to say, no, it’s time. The meaning of those words change. It’s – it will be a close decision, it’ll be five to four, it’ll be a very consuming day in America when this makes its way up to the Supreme Court.

PENNER: And, of course, the new U.S. Supreme Court Justice Elena Kagan, who has just been okayed by the Congress, will be seated by that time. Let’s hear from Serena in San Diego. Serena, you’re on with the editors, and since we’re coming up to a break, will you make your comment brief, please?

SERENA (Caller, San Diego): I will do that. Thanks for taking my call.


SERENA: I just wanted to say that this Prop 8 should never have come to the ballot stage. It was unconstitutional to begin with but I find that rightwingers tend to deal with fear and they tend to deal with religious issues and it’s – if you’re against gay marriage, marry a straight person. If you’re against abortion, don’t have one. But don’t take away my choice for my life.


SERENA: Thanks very much.

PENNER: And thank you, Serena. And I’m sure David King wants to respond to that. We’ll come back to discussing that after the break. This is the Editors Roundtable. I’m Gloria Penner.

PENNER: So this is the Editors Roundtable back again after the break. And I just want to tell you in case you missed the first 15 minutes or so that we are talking about the overturning of Proposition 8, which was the initiative that banned same sex marriage in California. It’s been overturned by a federal court judge. And I also want to say to you that we have so many callers on the line, I know we’re not going to get to all of you because we’re – we have limited time on this. So I urge you to put your comment on our web. What you do is go to and there is a comment section and we read your comments. Sometimes we even comment back to your comment. So we would like to see you do that if you don’t get on the air. Serena, just before the break, Serena raised the issue of religious issues that are brought up by conservatives. I want to say this before I turn to you, David King. The Log Cabin Republicans, which is a political action committee for gay and lesbian Republicans, praised the plaintiffs’ attorneys using conservative principles of privacy, liberty and freedom to convince the court to overturn Prop 8, which I thought was really interesting. So were those conservative arguments in behalf of a liberal cause?

KING: Those are. The principle of limited government is a conservative belief but I don’t think that you’d find a broader group that would say this is a conservative group pushing against Prop 8. We’re kind of moving out of the realm of legal analysis here and into political analysis which is…

PENNER: That’s good.

KING: …where this is going to go.


KING: Because in politics you don’t try to reason with people, you don’t try to change their minds, you motivate with emotion. People don’t walk precincts on behalf of taxes and lower regulation. People will walk precincts over social issues, abortion, gay marriage, this sorts of things. This will be the driver in 2012. This will be out there. There could be – in the future, there could be a proposed amendment to the Constitution over this issue. This will go on for awhile and this will be emotional, this will be divisive. Hopefully, it will reach an end someday but there will be a lot of political mileage made out of this, and this very well could be the issue for the 2012 election. And I do have to say, it’s unfortunate if that came to be the truth in 2012 as we’ve got our nation’s economy on the ropes, our very fundamental western civilization challenged here, to pick a president on the basis of where they stand on gay marriage, it could very well happen.

PENNER: Some people will and some people won’t.

KING: Some people won’t but…

PENNER: Right.

KING: But emotional issues override logic. The emotive part of your brain overrides the logical.

PENNER: I do wish we had a whole hour on this because I’d love to grapple with you on that one but…

KING: Oh, so would I.

PENNER: Ricky. Ricky, you want to do some grappling?

YOUNG: Well, I just wanted to mention in terms of the conservative idea, you know, I do think this judge has some Libertarian tendencies, if I’m – if I remember what I read correctly. And also, as I recall, one of the lawyers for the plaintiff, they were sort of a liberal-conservative dreamteam of lawyers for the couples that were suing, and the conservative guy was rather celebrated for sounding those same themes.

PENNER: Okay, well, let’s go to the phones now because we have so many callers, and we’ll start with Gayle from Tecate. Gayle, you’re on with the editors.

GAYLE (Caller, Tecate): Good morning. Great program.

PENNER: Thank you.

GAYLE: I can’t believe the amount of energy and aggravation and time that’s being spent on this issue. I totally agree with the lady who spoke previously. If you don’t want to marry a gay, then don’t. It’s nobody’s business but their own. This country has major things to deal with. We’re at war. The economy’s in a mess. We have more abuse and more shootings than just about any other, you know, first world country in the world. And you’re screwing around with this whole situation of whether gays should marry or not. I mean, who cares? If you’re a gay, get married.

PENNER: Well, tell that to the Supreme Court if it does get to the Supreme Court. That’s really an interesting point of view and I thank you very much, Gayle. We’re going to probably comment on that after we hear from John in San Diego. John, you’re on with the editors.

JOHN (Caller, San Diego): Okay. Thank you again for taking my call. First I want to briefly echo the sentiments that, yes, a democracy, a true democracy, is not only the will of the majority but also safeguarding the rights of the minority and I believe the judge along those lines, in order to uphold Prop hate – Prop 8—Prop hate, a nice slip there—in order to uphold Prop 8, would have to use the rational basis test. In other words, there would have to be some purpose, some something that would serve society as a whole in order for the proposition to go forward, and I don’t believe that they could find any kind of social ill or anything. I don’t think the defense could find anything that they could use that would say, look, that this, you know, is something that we have to push forward despite of the fact that it tramples on some rights.

PENNER: Thank you very, very much, John, for that. And I think at this point we’ll get some final comments from the editors. Let me just ask you something as you’re thinking about your final comment, David Rolland. There was an interesting analysis of what the decision in the high court, assuming the high court agrees to take it, and we did have one caller who asked whether – asked who decides whether this goes to the Supreme Court. Well, it will go through the appellate process and then…

YOUNG: No, I think they’ve asked the Supreme Court already to take it up.


YOUNG: And they’ll decide, yeah.

PENNER: And the Supreme Court will decide.

YOUNG: Yeah.

PENNER: It’s the Supreme Court that decides, okay. So there’s this interesting analysis whether the court sees homosexuality as a status, an identifiable class which gets greater legal protection, or a conduct that is, at least in part, a matter of choice. Isn’t that what much of the public argument is about already? Whether being gay or being lesbian is a matter of choice rather than identifying you as part of a class like an ethnic class.

ROLLAND: Yes, that’s absolutely right. And Judge Walker actually, you know, attacked that issue and made, in his findings of fact, found that it is not a – that it is really essentially not a choice and that it is – it’s something that is innate in the person. You know, getting back to the, you know, the caller that wondered why we’re spending all this time and energy, and getting back to David’s point about how he hopes that it’s not – that it doesn’t become a big campaign issue, you know, it is – I agree with the caller in the sense that, yeah, I’m frustrated that we’re spending so much time thinking about this, too, but that’s what you have to do when members of a minority class are under attack, and that’s exactly what this was. This was an outright, full frontal attack on a group of people who the proponents do not like, they fear and loathe. They, you know, there are public opinion polls that suggest that the Prop 8 turned when at the last minute, in the eleventh hour, when the proponents basically said if you don’t vote yes on Prop 8, teachers are going to turn your kids gay. It had – And their previous argument was that this is going to affect opposite sex marriage, that it will diminish somebody else’s marriage which is hogwash, and I think Judge Walker also commented on that.

PENNER: Well, gentlemen, we have used up more than our allotted time on this subject, otherwise I would go to my other two panelists and ask them for their comments but you’ll have to wait until the next time. Let’s move on to another very interesting issue.