The Next Step For California's Gay Marriage Ban

Guests

Marissa Cabrera, reporter, KPBS
Nina Totenberg, legal affairs correspondent, NPR
Rob Dillard, reporter, Iowa Public Radio

The 9th U.S. Circuit Court of Appeals declared California's same-sex marriage ban, known as Proposition 8, unconstitutional on Tuesday. This paves the way for a U.S. Supreme Court case that could have far-reaching implications for gay marriage around the country.

Copyright © 2012 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

LYNN NEARY, HOST:

This is TALK OF THE NATION. I'm Lynn Neary in Washington, Neal Conan is away. In California today, a federal court ruled that Proposition 8, which defined marriage as between one man and one woman, is unconstitutional. The ruling could have far-reaching consequences for the future of gay marriage in this country. Supporters of Proposition 8 say they will appeal to the Supreme Court.

We'll talk with NPR's Nina Totenberg in a moment, about what was decided today and what it means, and we'd like to hear from you, whether you agree or disagree with today's decision. If same-sex marriage is legal where you live, has it had any effect on your life? What changes have you seen? Our number is 800-989-8255. The email address is talk@npr.org. And you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Later in the program, Mary Elizabeth Williams on her life as a lab rat, but first the Prop 8 ruling. NPR's Nina Totenberg will join us in a minute, but we begin with Marissa Cabrera, she's a reporter with member station KPBS in San Diego and joins us from downtown San Diego, where she is gathering reactions to the recent ruling on Proposition 8. Marissa, welcome to TALK OF THE NATION.

MARISSA CABRERA, BYLINE: Thank you.

NEARY: So what are you hearing from people in downtown San Diego today?

CABRERA: Well, first of all, I'm right outside the Lesbian, Gay, Bisexual and Transgender Community Center in the center of San Diego in what's considered the gay district, if you will. And again, we have to remember this is the middle of the week, the middle of the day. It's not as if people are outside, you know, congregating or anything like that, but there is a rally plans for here tonight.

Obviously, a lot of the reactions that I'm getting here is very positive, not - it's people aren't really surprised by today's ruling. They say this is what they expected. This is inevitable. And here at the center itself, you know, a lot of people on their laptops are Facebooking about this.

And one woman I spoke to said OK, let's not get too excited. Opponents of same-sex marriage will still fight this, and, you know, it's not like we can go out to the courthouse and get married right this second.

NEARY: Have you had an opportunity yet - understanding where you are, as you explained - have you had any opportunity yet to speak with those who oppose same-sex marriage?

CABRERA: You know, I have not, but, you know, not surprisingly, you know, this will be appealed. And speaking to people here, you know, they're a little afraid of the upcoming presidential election, to be honest with you.

NEARY: So - and this has been a really big issue in California. Was there a lot of political tension leading up to today's decision?

CABRERA: Absolutely. You know, when I was speaking to people, they said, you know, we're going to expect a couple hundred people to be out here on the streets rallying tonight, just like they were back when Proposition 8 first passed, back in 2008.

Back then, you know, (unintelligible) they were out here marching in opposition of Proposition 8. Today, they expect to be rallying, sort of, applauding today's ruling by the Ninth Circuit Court of Appeals.

NEARY: Well, Marissa, thanks so much for joining us.

CABRERA: Thank you.

NEARY: Marissa Cabrera is a reporter with member-station KPBS, and she joined us from downtown San Diego. Nina Totenberg is NPR's legal affairs correspondent, and she joins me now here in Studio 3A. Good to have you with us, Nina.

NINA TOTENBERG, BYLINE: Nice to be here, Lynn.

NEARY: So the court ruled Prop 8 is unconstitutional. Was that expected? Was that the expected ruling?

TOTENBERG: Well, you know, you never know what's expected. What is not expected about this is that it's actually a very narrow ruling. It is not 100 percent what gay rights activists might have wanted. The court did not hold that marriage is a fundamental right guaranteed by the Constitution to gays and lesbians, as well as straight people.

What it said was that California law, prior to Prop 8, had extended the right to marriage to gays and lesbians and that by withdrawing that right, Proposition 8 targeted people essentially for discrimination. And that is a very different kind of ruling. It doesn't open up the box for all the states that have banned gay marriage and never had gay marriage on the books.

The court here said look, the status quo in California was that there was gay marriage and that the other parts of the law provided absolute equality with marriage and that therefore the only thing that Prop 8 took away from people was the unique status of being married, and that in and of itself was a kind of discriminatory act.

And the court pointed to Colorado, which in the 1990s tried to do the same - a similar kind of thing by taking away from local jurisdictions the power to have antidiscrimination statutes and said - the Supreme Court said you can't do that. You can't take away rights from people that way or the rights of localities to do that.

Here, the California - the federal court said this is a denial of equal protection of the law. You have no legitimate reason to take this away. It would be - and they analogize it, in fact, at one point to taking away the right to desegregate schools.

NEARY: Well, given that it's a narrow ruling, as you said, is it a good test case? Is it a good case to take to the Supreme Court?

TOTENBERG: You know, in an interesting kind of way, the Supreme Court doesn't have to take this case. It only invalidates Prop 8. It doesn't do anything in another state because there is no analogous situation, that I'm aware of, in another state. It only takes four votes at the Supreme Court to agree to hear the case, but it doesn't have to, it doesn't - this decision, which was by a two-to-one vote and was written by the Ninth Circuit Court of Appeals' perhaps most liberal judge, Stephen Reinhardt.

But it is not a broad decision. It is very shrewdly crafted to apply to California. It doesn't say to the 21 states that have on their books laws that ban - that define marriage as between a man and a woman, it doesn't say to them you can't do that. It doesn't say that marriage is a fundamental right.

NEARY: We're going to go to the phones now. We're talking about the decision, today, in California on Proposition 8. Nina Totenberg is my guest. We're going to go to Paul(ph), who is calling us from Maui. Hi, Paul. You're calling from Maui, Hawaii, I believe.

PAUL: Aloha (unintelligible).

NEARY: Aloha.

PAUL: The whole situation with a plebiscite being used to take on a human rights issue is really a horrible thing. And a plebiscites should never have human rights implications, I feel. Also, Hawaii had just recently passed a civil unions bill, and the state really should be in the business of civil unions, and the church is in the business of marriage, because marriage, as we all know, is a sacred institution.

So the whole issue of same-sex unions or other genders, you know, or heterosexual unions, should be settled by civil unions going to everybody, the state blessing those civil unions and churches doing marriages. And then we wouldn't have this issue anymore because marriage is a sacred institution, and the state doesn't belong in a sacred institution.

NEARY: Yeah, what changes have you noticed, Paul?

PAUL: Well, it's just wonderful that this ban has been lifted and that these people who have been living together, some people who have been living together for 30, 40 years, are able now to have the protections of the law that we all have, that we as heterosexual people have.

I mean, this is blatantly discriminatory and has been for many years, and of course the same people who love each other, you know, no matter what their gender is, love knows no gender, really, these people who love each other have been in the closet for so many years. And it's just a wonderful thing.

It's a very freeing thing for these people to be able to express that love in a communion and for churches to bless that expression of love.

NEARY: Although I have to say not all churches would necessarily bless that.

PAUL: No, but the Episcopalian Church is very liberal in that sense, and that's my church, and so - in fact we blessed the same-sex union before the civil union bill was passed several years ago.

NEARY: All right, well, thanks so much for calling, Paul.

PAUL: Well, I love your show, and thank you very much for...

NEARY: I think Nina wants to respond.

TOTENBERG: No, I don't want to respond. I just am going to read part of this decision because it's sort of on point to what our caller said but also juxtaposed, in a way. The court writes: The designation of marriage is important because marriage is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed, lifelong relationship, a marriage by the name of registered domestic partnership does not.

(SOUNDBITE OF LAUGHTER)

TOTENBERG: The word marriage is singular in connoting a harmony of living, a bilateral loyalty and a coming together, for better or for worse, hopefully enduring, and intimate to the degree of being sacred.

As the proponents of Proposition 8 have admitted, the word marriage has a unique meaning, and there's a significant symbolic disparity between domestic partnership and marriage. It is the designation of marriage itself that expresses the validation by the state and the community and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.

NEARY: All right, thanks for your call, Paul, and we're going to go to John(ph), who is in Burlington, Vermont. Hi, John. Hi, John.

JOHN: Hi.

NEARY: Go ahead.

JOHN: I'm just calling to let you know about my experience. My husband and I moved from Wisconsin, a non-marriage-equality state, to our new home state of Vermont, which does have marriage equality. And it has made such a huge difference in our lives to live in a place where our marriage is recognized.

From the state of Vermont, it had a long and divisive battle first to get civil unions and then to get marriage, and years after it's passed, the sky hasn't fallen, you know, people - opposite-sex marriages are not being destroyed. Nobody - you know, no families are being destroyed. LGBT couples are integrated into the fabric state. And, you know, we're a better society for it.

So states like Vermont that have marriage equality on a state level can really teach a lot to the nation in that way, and it really does mean the world to people like my husband and I to have their marriages recognized in the eyes of the state and in the eyes of society.

So this ruling today is a huge step forward to getting these awful, discriminatory laws relegated to the dustbin of history where they belong.

NEARY: All right, well, thanks so much for calling in, John. And Nina, we're - we're going to talk about this more and about how states like Vermont are going to be affected by this, if they may be affected in the future, if the Supreme Court decides to take on this case, how those laws might be affected.

But first we're going to take a short break. We're talking about today's circuit court decision that ruled that California's Proposition 8 is unconstitutional. If same-sex marriage is legal where you live, what changes have you seen? Give us a call at 800-989-8255. The email address is talk@npr.org. I'm Lynn Neary, and this is TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

NEARY: This is TALK OF THE NATION from NPR News. I'm Lynn Neary. Same-sex marriage supporters took the latest round in the debate today as the Ninth Circuit Court of Appeals ruled California's Proposition 8 is unconstitutional. Voters passed the measure, which defined marriage as between a man and a woman, in a referendum.

But the courts ruled that the primary impact of the law was to lessen the status and human dignity of gays and lesbians in California. Court watchers expect the decision will soon be appealed to the U.S. Supreme Court.

Whether you agree or disagree with the decision today, if you live where same-sex marriage is legal, what changes have you seen? Our number is 800-989-8255, and the email address is talk@npr.org. Join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

In a few minutes, we'll speak with Rob Dillard from Iowa Public Radio about how gay marriage has affected the state there, and Nina Totenberg, legal affairs correspondent for NPR, is with us now. So Nina, we're been saying that it's expected that - court-watchers are expecting that this decision will be appealed to the U.S. Supreme Court, but it seems from what you're saying it's narrow, it may not really apply to other states, maybe this isn't such a good case for them to take.

TOTENBERG: Well, it's not a - if the court had said there is a fundamental right to marry for gays and lesbians as well as straights, that would have meant that every place west of the Rockies, which is where the Ninth Circuit operates, those are the states covered by the Ninth Circuit, gay marriage would have been legal under the laws of the - despite the laws of those states.

That is not the case here. This is a California-centric decision based as much as possible on California law and California court rulings. And therefore it is not the sort of bomb that it could have been. And the court is at least free, quite easily, to simply say that's California, it's based as much as possible on California law, we don't have to take this case.

On the other hand, the court could take this case and say - and then the question would be if you change the law, are you free to change the law, to go back to the position that the state law was in at one time when marriage between - when same-sex marriages were banned?

And this decision says you didn't offer us any good reason to go back. You have to have some legitimate reason, and you didn't offer us one that we saw as legitimate, and that would be the question that the Supreme Court would then have to grapple with.

In that sense, it's - as I said, it's a very narrow and very shrewd decision in the sense that it doesn't have to interject a national court decision on this question right away.

NEARY: So do you have any sense then whether the Supreme Court would even take this case?

TOTENBERG: Absolutely none.

(SOUNDBITE OF LAUGHTER)

NEARY: You would never make that prediction.

TOTENBERG: No. It only takes the votes of four justices to hear a case, and it's just a question whether there are four members of the court who want to get into this now.

NEARY: And also, for its effect in California, now as I understand it, the stay, which put a hold on gay marriage in California, that stay is going to be in effect for - they're going to keep it in effect for a while longer, right?

TOTENBERG: It's my understanding the stay will remain in effect while the case is appealed, and if the Supreme Court decides to hear the case, it will stay in effect. If the court decides not to hear the case, and we won't know that till at least next fall, if the court decides not to hear the case, then the stay will be lifted.

NEARY: So nothing changes until at least next fall?

TOTENBERG: I believe that is likely the case.

NEARY: OK, let's take a call now from Michael, who's calling from San Antonio, Texas. Hi, Michael.

MICHAEL: Yes, I just wanted to make the comment that I'm a member of the Church of Jesus Christ of the Latter-day Saints, and I was living in California at the time of the passage of Proposition 8. I had actually just returned home from a mission to El Salvador for two years, and I'm still a very, very faithful member of my church, but also a very strong supporter of LGBT rights.

And I just wanted to say that there is a whole community of LDS members that do support the repeal of Proposition 8 and didn't support it originally, and most people do know the role that my church played in the passage of that originally, and I just wanted to make that comment.

NEARY: OK, thanks so much for calling us, Rob, appreciate your comments. So Nina, just before I left you go, then just to repeat what you just said, I guess things are just going to be status quo in California for now. We don't know what the Supreme Court's going to do, and we won't know till the fall where things stand.

TOTENBERG: That's exactly right.

NEARY: And you're not going to make any predictions?

TOTENBERG: Not me.

NEARY: OK.

(SOUNDBITE OF LAUGHTER)

NEARY: Well, thanks so much for being with us today, Nina.

TOTENBERG: My pleasure.

NEARY: NPR's Nina Totenberg. And joining us now is Rob Dillard. He is a reporter with Iowa Public Radio, and he's recently reported on the effects of same-sex marriage on Iowans. He joins us now from Iowa Public Radio in Des Moines. Welcome to TALK OF THE NATION, Rob.

ROB DILLARD, BYLINE: Hi, Lynn, nice to be with you.

NEARY: So let's talk about your state now. Let's turn to Iowa, no stranger to the tensions around this kind of decision. What led up to the decision to legalize same-sex marriage in Iowa?

DILLARD: It's been three years now. Iowa Supreme Court in 2009, the spring of 2009, ruled that Iowa's ban against same-sex marriage was unconstitutional. It started with six same-sex couples filing the suit. In 2007 a district court judge here in Des Moines ruled the same as the supreme court, ruled it was unconstitutional to ban same-sex marriage.

And there was a brief period in 2007 before he put a stay on that. One couple was able to marry in 2007, so that was the first same-sex marriage in Iowa, but he put a stay on the ruling and it eventually reached the Iowa Supreme Court. And then the seven judges in a unanimous ruling in 2009 ruled that ban unconstitutional.

NEARY: So was there any kind of backlash against the decision when it was...

DILLARD: Oh, absolutely. In 2010, conservative groups and many evangelical Christian churches rallied support, and three of the seven justices were voted off the court. They go up for retention votes every so often, and they - the voters voted them off, including the chief justice of the Iowa Supreme Court. So three justices lost their jobs over it.

NEARY: Has there been a shift, though, in public opinion now? It's been three years. Has there been any shift, or...

DILLARD: The last opinion poll that was taken statewide to gather public sentiment about same-sex marriage was about a year ago. At that time - we're still evenly split over the issue - 38 percent say they oppose same-sex marriage, 34 percent say they support it. I think the more significant number is the 30 percent of Iowans who say they don't care, it doesn't affect their lives in any way.

NEARY: And has that always been the case, that a sizable number of people have said this really is not an issue for me?

DILLARD: I get the sense that sentiment is starting to change. Republicans in this state have been the most vocal opponents of the ruling. The New York Times did a poll of Iowa Republican Caucus-goers in January. This is a group that lean heavily toward the conservative side on social issues. And in that survey, 22 percent said they supported same-sex marriage.

Another 36 percent said they supported civil unions for same-sex couples. So a clear majority of conservative Republicans now say they support some sort of same-sex union.

NEARY: Let's go to Tim, who is calling us from Golden Valley, Minnesota. Hi, Tim.

TIM: Hey, good afternoon.

NEARY: How are you?

TIM: It's interesting that our neighbors to the south of us in Iowa have that experience. Here in the land of Lake Woebegone, it is on the ballot for this November. I've got to tell you, it is causing a lot of division within families. I happen to come from a Roman Catholic tradition; our archbishop here in Minneapolis and St. Paul have made this the moral issue of our decade. It is the only issue in which the archdiocese is going to put any money into lobbying the state legislature.

So many of my friends who are Roman Catholic, who went home over the holidays and said I'm sorry, but I won't be worshipping with you this holiday season, experienced an incredible amount of familial tension around this issue. So it's dividing families, dividing individuals. It's causing a great amount of discomfort. It's unfortunate that we have to have that conversation in a state that has such a reputation of fair-mindedness.

NEARY: Rob, let me ask you about that in Iowa, and I want to bring up the churches too, because I don't know if you heard, but we had a call earlier from someone in Hawaii who was sort of making the argument that if you leave it to the churches, that it wouldn't be such a divisive issue because he's an Episcopalian and his church is very welcoming to people who want to get married, gay couples who want to get married.

But I'm wondering what are you finding, Rob - and we're hearing something very different from Minnesota - what are you finding, Rob, in Iowa in terms of the churches' involvement and also in terms of what Tim has been talking about, which is interesting, which is what's going on on a sort of personal level between people, within families, neighbors, friends? And, Tim, thanks so much for you call. I appreciate it.

DILLARD: Well, there is a divide in the religious community in Iowa over this too. The evangelical Christians tend to oppose it. The Catholic Church in Iowa opposes same-sex unions. On the other side, there were many churches and ministers, pastors were among the first to marry same-sex couples when they were allowed to. So, yes, there's a big divide in the Church.

I should also mention that the idea of this eventually reaching a vote of the people in Iowa is not out of the question. The Iowa House last year voted to put a constitutional amendment up for a vote of the people that would ban same-sex marriage. That did get through the Iowa House. It was blocked in the Iowa Senate basically by one man, the Senate majority leader who is a Democrat, and he would not allow it to reach the floor for a debate. But there are still many Republican senators who are hoping to get that put on the floor for a debate this year. There's many other things on their mind this session, and I don't think it will happen, but it's still out there as an idea.

NEARY: What about the whole - the sort of interpersonal relations? I mean, have you seen any that have - the tensions occur within families or among friends as a result of this?

DILLARD: Well, of course, that's always out there. Most of the people I met during the recent reporting I did in Iowa were incredibly loving toward the same-sex couples they knew, and families held together through this time.

As it was pointed out by one of your early callers, the same-sex couples who married in Iowa have been together for a long time in committed relationships, 25 years or more. And so I think that is a message - certainly the largest gay advocacy group in Iowa, which is called One Iowa - is trying to make - they've got a whole campaign going: Why Marriage Matters. It's an attempt to introduce more Iowans to same-sex couples so that they will see that their marriages hasn't damaged anything in the state.

NEARY: Of course, we're getting reactions now from around the country to this decision on Proposition 8. Here's what GOP presidential candidate Newt Gingrich has to say, and I'm going to read this verbatim. This is a quote:

"Judge Walker's ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of the people of the United States who believe marriage is the union of husband and wife. In every state of the union, from California to Maine to Georgia, where the people have had a chance to vote, they've affirmed that marriage is the union of one man and one woman. Congress now has the responsibility to act immediately to reaffirm marriage as a union of one man and one woman as our national policy. Today's notorious decision also underscores the importance of the Senate vote tomorrow on the nomination of Elena Kagan to the Supreme Court because judges who oppose the American people are a growing threat to our society."

And that is Newt Gingrich's reaction to the decision on Proposition 8 today. And I want to remind you that you are listening to TALK OF THE NATION from NPR News. And we're going to take a call now. We're going to go to Laura, who's calling from Connecticut. Hi, Laura.

LAURA: Hi, Lynn. My comment is, you had asked whether anything had changed since my state adopted gay marriage, and my answer would be no. My marriage to my male husband hasn't changed. They didn't see any heterosexual marriages break up. Life goes on as usual. And I do think the people who are against it may still be against it. The people who are for are still for, but it kind of came and went as a statewide issue.

NEARY: And you haven't seen any - what I was wondering is if in states where this has been legal for a little now, people have started getting married. Maybe all of a sudden, somebody realizes the people next door are actually a married couple, maybe it's two women. Does that shift their opinion in any way? Does it change people's attitudes? I guess that's what I'm wondering.

LAURA: I haven't seen that happened in my own circle quite yet, but I'm hoping to. My experience has been that people who were opposed to it are still opposed, but maybe resigned to it. I'm hoping what changes is the young people who are now, let's say, in high school and in college who are gay will see marriage as an option for them if that's what they want, whereas people from generation who are now in their 40s may not have ever considered that as an option.

NEARY: OK. Thanks so much for your call.

LAURA: Thank you.

NEARY: And here's an email from Victor in Miami, who says: I really don't get how same-sex marriage is legal in some states and in others isn't. Aren't we the same wherever we are in this free nation?

And, of course, Rob, that's not the case. This is something that, at this point, is being decided on a case-by-case basis. The Supreme Court could make a difference in that as Newt Gingrich just suggested. I guess Congress could. But at this point, Rob, it's a state issue, right?

DILLARD: That's right. Absolutely. And I get the feeling as I look at national polls where 53 percent, the last poll I looked at, now support gay marriage. I'm getting the sense that because of the younger people who have grown up with young people who are coming out at a much earlier age or LGBT alliances in high schools and colleges across the country, I think because of that people are more accustomed and have more friends who are gay or lesbian.

NEARY: Yeah. Has anything changed in your own life? Let me just ask you that before I let you go. I mean, have you seen any changes at all?

DILLARD: In my personal life, I have to say that I have some very dear friends who I've never seen happier...

NEARY: Well, that's...

DILLARD: ...who were allowed to marry in 2009.

NEARY: OK. All right. Well, thanks so much for joining us, Rob.

DILLARD: All right. Nice being with you. Thanks.

NEARY: Rob Dillard is a reporter with Iowa Public Radio, and he has been reporting on the effects of same-sex marriage on Iowans. And he joined us from Iowa Public Radio in Des Moines. After a short break, Mary Elizabeth Williams will be joining us. She's going to talk about her experience in a clinical trial for a new cancer treatment where she has been something of a lab rat. Stay with us. I'm Lynn Neary. This is TALK OF THE NATION from NPR News.

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