Ruling Sets Stage For National Gay Marriage Debate

Guests

Dahlia Lithwick, senior editor and legal correspondent, Slate
Brian Brown, president, National Organization for Marriage
Evan Wolfson, executive director, Freedom to Marry

Gay rights activists cheered Wednesday's ruling by a federal judge that overturned California's constitutional ban on gay marriage. Proponents of Prop 8, which defined marriage as between a man and a woman, vow to appeal the decision all the way to the Supreme Court.

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TONY COX, Host:

This is TALK OF THE NATION. I'm Tony Cox, in Washington. Neal Conan is away.

And let me start with a short programming note. If you tuned in to hear our conversation about the controversy surrounding the mosque near Ground Zero, we will get back to that topic another day. Today instead, our focus will be on the decision on Proposition 8 in California.

Gay rights activists cheered yesterday's ruling by federal Judge Vaughn Walker, who overturned California's voter-approved constitutional ban on same-sex marriage. The case is not settled, however, and is expected to eventually go to both the Ninth U.S. Circuit and U.S. Supreme Courts. While not the first court ruling on the matter, it is the first to strike down a marriage ban on federal constitutional grounds.

Californians, if you are an activist on either side of this issue, what is the next step in your opinion? Our number here in Washington is 800-989-8255. Our email address is talk@npr.org. And to join the conversation, just go to our website, npr.org, and click on TALK OF THE NATION.

Joining us now from a studio at the University of Virginia is Dahlia Lithwick. She is a senior editor and legal correspondent for the online magazine, Slate, and a contributor to Newsweek magazine. Dahlia, welcome to TALK OF THE NATION again.

DAHLIA LITHWICK: Thank you for having me, Tony.

COX: Let's begin with this. Prop 8 defined marriage as between a man and a woman. Now, this ruling overturned that. So can gay couples in California, as a result of that, head to the courthouse and get married now?

LITHWICK: Well, a bunch of them did, and they were turned way. What happened was, immediately, upon deciding the case, Judge Walker stayed his order, and he stayed it for only two days. He's asked both parties to brief and submit court papers by tomorrow. And they will argue for him, either extending the stay - in other words, keeping the status quo until the appeals court has dealt with it, or not.

So he's going to make a decision, I'm hearing Monday or Tuesday, about whether to continue to stay this matter, and there are some pretty good reasons, I think, that he might want to consider just keeping the status quo, making sure that things don't continue to get crazy until the court of appeals has had a chance to look at this.

COX: What would be some of those reasons you mentioned?

LITHWICK: Well, you know, there was a really interesting blog post, yesterday, by Rick Hasen at the Election Law blog, and what he said is if Judge Walker doesn't stay this - in other words, if folks can rush out and get married tomorrow - this is going to immediately go to the Ninth Circuit and then immediately land in the lap of the one Supreme Court justice who would have to deal with this.

In other words, it wouldn't get appealed all the way to the full Supreme Court. It would go to the Ninth Circuit and then on to - guess who? Anthony Kennedy, who instead of dealing with this issue on the full bench with full briefing, in a year and a half when the court of appeals has developed its opinions, he would have to deal with it at a cocktail party over the summer.

And so what Professor Hasen says, and it sounds quite persuasive to me, is that rather than force this issue on to Justice Kennedy, who will be the swing vote - I don't think there's any question he's going to be the determinative vote when this comes up to the Supreme Court - have Justice Kennedy deal with this in a sort of a fair and timely manner rather than forcing him to deal with it on this very, very complicated issue of a stay in the middle of the summer.

COX: Let's talk about what the ruling actually says. My reading of it is that it's based on constitutional law and his interpretation of the 14th Amendment and the equal protections that are covered, therein. Tell us what the law says precisely.

LITHWICK: There's two different provisions of the 14th Amendment that he scrutinized. And he actually struck it down, using either of them. One is the due process clause. It says you can't have your freedoms taken away without due process of law. And the other is the equal protection clause. It says that you can't, sort of, discriminate against certain groups.

And so to get to the due process clause, the court has to find that you have a fundamental right that's been taken away. If you have a fundamental right that's been taken away, the court is going to look at that very, very tough standard called strict scrutiny.

And what he said is, if I look at the due process clause, I can say that there is absolutely a fundamental right to marry, that that's clear. Therefore, this needs to be looked at under this very rigorous standard of strict scrutiny.

And then he said, even if I look at it under the most deferential standard, which is called rational basis standard, I still can't figure out why the state of California has an interest in keeping gays from marrying.

Now, the other clause he looks at is the equal protection clause. And he says, is this a class of people that are being singled out for shabby treatment because of their status? And he goes through all the reasons that the state says we're going to keep gay couples from being married, and he says under each of them, again, it fails not just strict scrutiny, but this rational basis, much more deferential standard.

In both cases, it comes down to the fact that he really felt - Judge Walker, looking at all of the evidence, all the trial testimony, all the expert witnesses - that the pro-Prop 8 side never managed to explain to him the real, tangible harms that would come about from allowing gay couples to marry.

COX: Can you explain for the audience, how significant that interpretation is in this regard, because there are five states and the District of Columbia which allow same-sex marriages now, and there are some 30 states that have constitutional prohibitions against California - against California's - against prohibitions like the one that California had that was just struck down.

So my question, Dahlia, is to explain the difference between this case and the rulings for same-sex marriages in other states, such as Massachusetts and Iowa, for example.

LITHWICK: Right. Those were state supreme courts, and that's very different because that has no implications outside the states, unless you get into these very, very complicated questions of full faith and credit and DOMA. But if you look at what Judge Walker did, what he did is say no, the federal Constitution prohibits you from discriminating against gay citizens who want to marry.

So it's radically different. It's not going to affect anyone right now, but if the Ninth Circuit, which contains a whole bunch of states other than California, were to uphold this, it very, very quickly becomes a very dramatic situation. And that's why I think it's certainly one of the reasons that nobody doubts, at all, that this case almost has to end up before the Supreme Court.

It's that constitutionally urgent, and I guess I should just point out that that was always the point. The dream team of Ted Olson and David Boies, who brought this case, who litigated it and who masterminded it, were not gay rights advocates.

And in fact, a lot of gay rights advocates were opposed to them rushing ahead with this suit. And what they felt was this suit has to go to the Supreme Court. This is the case, this is the court, and this is the time. And in some sense, some would argue that they were vindicated yesterday.

COX: So they sort of tailor-made their case to get it to the Supreme Court, where Ted Olson has been many, many times before.

LITHWICK: Well, both of them many, many times. Famously, they were on opposite sides of Bush v. Gore. I heard one of them quip yesterday, that Ted Olson promised he'd bring the five justices that voted for him in Bush v. Gore if David Boies brought the four justices that voted for him.

But I think that their message has been, throughout, that if two people who are on such polar opposite sides of the spectrum could come together over this issue, then they really do feel that they could persuade the Supreme Court. Again, specifically I think in this case, that's going to mean Justice Kennedy, to think very, very hard about upholding Judge Walker's opinion.

COX: Was there a precedent, Dahlia, involved in this case, stemming from Loving versus Virginia, the case involving interracial marriage? Was there a connection at all?

LITHWICK: Oh, absolutely, and that was one of the things that was argued very, very passionately at the trial. There was a two-week trial in January. There was closing arguments this spring. And in both those situations, Ted Olson and David Boies pushed very, very hard on the analogy that those anti- miscegenation laws are analogous to the anti-gay-marriage laws. And that at the time, so many of the arguments that were made about interracial marriage had the same quality of, you know, this is what God wants, or it's immoral, or it's bad for children.

So the entire bup(ph), bup, bup, as you go down the list of the state interests in preventing gay marriage, what Ted Olson would have said in response over and over again at trial, is we now look at those arguments as applied to interracial marriage before Loving, and we say those arguments are just purely visceral moral outrage.

There's no rational reason for them. That's how you should analogize this case. And Judge Walker definitely picked up those themes in his opinion yesterday.

COX: We have a caller from San Andreas, California. This is Vance(ph). Vance, welcome to TALK OF THE NATION.

VANCE: Yes, my concern is, is that now the case has basically put it that the state's involved itself in religious affairs. So what should probably happen now, is that marriage itself should only be left as a religious union and that the state is only involved in the civil union.

So marriage is not a contract that the state is involved in. The state's only involved in the civil union. So take the terminology of marriage out of the picture, 100 percent.

COX: Vance, thank you...

VANCE: I think the government has involved itself in religious affairs.

COX: Vance, thank you very much for the call. I hate to cut you off; our time is running short. Let me ask you this, because Vance does raise - he raised an interesting point that I'd like to talk with you about, and that's whether or not, now that we're in the federal system, so to speak, with regard to this case, will this be the ultimate - once it gets to the Supreme Court, the U.S. Supreme Court, if it does - will that be the ultimate arbiter of what happens?

LITHWICK: Oh, absolutely. I mean, this will be a landmark case. I don't think, particularly given how broadly Judge Walker ruled in this case, I think some folks thought he was going to try to rule as narrowly as possible. But this was a big, big, broad ruling on big constitutional grounds, and I don't think it could be anything less than that when the court takes it.

So it seems to me that, whether they take this case, or there's another case burbling up from Massachusetts that has to do with the Defense of Marriage Act or the DOMA, but either way, it seems to me that this is a speeding train that's heading toward the Supreme Court, that the court will not be able to avoid in the coming years.

COX: Whether you have won or lost at the state level in some of these other areas, will it mean that the losing side will now be able to go back into federal court because of what happened in California?

LITHWICK: Oh, that's an interesting question. I don't know. I mean, I think for right now, everybody's going to watch. You know, already the appeal has been filed by the Prop 8 side in California.

But I - no one else is going to be bound by Judge Walker's decision. It's going to be - outside of California. It's going to have to kind of play itself out in the appeals system up through the Ninth Circuit and onto the Supreme Court.

COX: We're talking about yesterday's ruling overturning Proposition 8 in California. Dahlia Lithwick from Slate.com is with us. Dahlia, stay around, please. We want to continue this conversation.

And up next, we will hear from strategists on both sides of the debate. What is their next step? I'm Tony Cox. It is TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

COX: This is TALK OF THE NATION, from NPR News. I'm Tony Cox.

Round One in the legal battle over gay marriage in California went to supporters of same-sex marriage. The 136-page ruling struck down the constitutional amendment that defined marriage as between one man and one woman.

This is hardly the final word on the matter in the courts or otherwise. Our focus today is on what comes next.

TALK OF THE NATION: What is the next step? Our number is 800-989-8255. Our 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.

We have been talking with Dahlia Lithwick, senior editor and legal correspondent for the online magazine Slate. Dahlia, I want you to hang on. We're going to talk to you in just a moment.

Joining us right now, though, Brian Brown. He is the president of the National Organization for Marriage. Welcome to the program.

BRIAN BROWN: Thank you for having me.

COX: Your reaction, your organization's reaction to the ruling is what?

BROWN: Outrageous but not unexpected. Given the way that Judge Walker has managed this case as an essential show trial and circus, it really isn't surprising at all that he ruled in the way that he ruled. Luckily, he will not have the final say on this.

And I think that what he's done is nationalized the same-sex marriage issue, and we have to understand that this ruling doesn't only affect California. It potentially affects the entire country. All the 45 states that have defined marriage as the union of a man and a woman are now up for grabs and essentially all of the voters, the 37 million or so voters who every time they've had a chance voted to define marriage as the union of a man and a woman, this decision potentially robs them of their civil right to have their vote respected and counted and heard.

So I think that what he's done is launched essentially a new culture war, and the fact is that this decision I don't believe will stand. I believe saner heads will prevail either at the Ninth Circuit or at the Supreme Court, but at the same time we will be calling on Congress to act to protect the civil right of the voters of this country to have their vote counted and not to be dismissed by one single judge based in San Francisco.

COX: Here is an email that we got directed to you, sir. It says: I want to know in detail how some same-sex marriage - I'm sorry, let me begin again. I want to know in detail how same-sex marriage threatens my traditional marriage.

The nature of the threat eludes me, and I believe that same-sex marriage opponents would show the weakness of their argument and that it is really about somebody doing something that they disapprove of but cannot demonstrate the harm of if required to answer this question. How about it, is what Kurt(ph) writes from Renton, Washington. How do you respond to that, Mr. Brown?

BROWN: Well, I think this is one of the biggest lies that's repeated over and over again in the entire debate, that same-sex marriage has no consequences.

We don't need to guess at what the consequences are. Same-sex marriage clearly has consequences. We can just look at the jurisdictions that have redefined marriage to know what they are.

Massachusetts, the fact that you have children as young as first grade taught that is the same thing for a boy to grow up and marry a boy as it is to marry a girl and that their parents are the equivalent of bigots for teaching otherwise, that's a profound consequences that impacts parental rights.

Religious organizations such as Catholic Charities Adoption Agency in Massachusetts are told that they can no longer have adoption licenses because they refuse, because of their religious beliefs, to adopt children to same-sex couples.

And in the state of Massachusetts, Boston Catholic Charities was put out of the adoption - was refused to have an adoption license because it was told it was discriminating.

In New Jersey, you have Ocean Grove Methodist Association lose part of its state tax exemption because it wouldn't allow a pavilion it owned to be used for a same-sex civil union ceremony.

So don't tell me that there aren't consequences. If there weren't consequences, you wouldn't have millions of dollars going into elections throughout the country to redefine marriage. Clearly there are consequences, and we need to quit lying about the fact that there aren't.

Even noted legal scholars who support same-sex marriage are quite willing to say that there are religious liberty consequences. They just believe that those religious liberty consequences aren't as important as same-sex marriage. Let's be truthful about it - there are consequences.

COX: Let me take you back to the case itself. One of the things that Judge Walker said was - he was critical, it seemed, in his report about the case as presented by your side's attorney, Charles Cooper. Are you satisfied that your side was presented adequately before the district court judge?

BROWN: Yes, I think that, you know, again, part of the tone of the decision was to attempt to belittle the proponents of Prop 8, and I think that's going to weigh heavily on the Supreme Court, because it clearly shows, again, Walker's bias.

The reason that there were issues with expert witnesses was because Judge Walker himself wanted to create a circus and broadcast the trial live. First of all, there was no need to have a trial. This should have been decided on the facts of the law, which are clear. But he wanted a trial because he wanted to create a circus-type atmosphere and get as much attention on this as possible.

Many witnesses don't want to step forward on the issue of same-sex marriage because they're attacked and intimidated publicly, and even some have been threatened with losing their jobs for standing up for marriage as the union of a man and a woman, and these cases are all documented.

It took the U.S. Supreme Court to step in when Judge Walker wanted to change the rules in the middle of the game and broadcast the trial. In a very strongly worded statement, the U.S. Supreme Court stepped in and said exactly what I just said, that Judge Walker was attempting to change the rules in the middle of the game, and it was unacceptable.

The fact that Judge Walker attempted to do this, though, is good because the Supreme Court has already seen the way he's conducted this trial, and I think that their statement on the broadcast is going to help them ultimately make a decision overturning this, if it gets to them.

This case may not get to them. If the Ninth Circuit overrules Walker, then the Supreme Court may not make any decision at all. If the Supreme Court upholds Walker's decision, I think that there's no doubt that this is going to the United States Supreme Court.

COX: Brian Brown is the president of the National Organization for Marriage. He joined us by phone from St. Louis. Mr. Brown, thank you very much.

BROWN: Thank you.

COX: And joining us now from his office in New York City is Evan Wolfson. He is executive director of Freedom to Marry. Welcome to the program.

EVAN WOLFSON: And your reaction is what?

WOLFSON: This is a very important, powerful, persuasive ruling by a highly respected judge, a Republican appointee, who lays out in very clear, specific detail the fact that when given a chance to come into court and try to show a reason why gay people should not be able to marry the same as other committed couples, the anti-gay forces behind Prop 8 had absolutely nothing to show.

COX: What are the next steps for you strategically with voters in California, as well as outside the state of California?

WOLFSON: Well, the real challenge for those of us who support fairness and who really believe in ending barriers in America is to go out and make the same strong case in the court of public opinion that we are making in the court of law.

It's very important to persuade judges. It's very important to persuade appellate judges. It's very important to continue persuading legislators and members of Congress and the president. But the way to do that is by getting out there and doing the work, not just relying on change to waft in on inevitability.

And the work is personal engagement, telling our stories, speaking out about the real families involved, showing the evidence from Massachusetts, from Canada, from Spain, from South Africa, from Argentina, from Iowa, that when we end discrimination in marriage, families are helped, and no one is hurt.

COX: We have an email that I'd like to read to you and get your response. It comes from Brian in Cottonwood, California: One thing I've never heard addressed, he writes, I saw a lot of confusion with the original vote on Prop 8 because it was a yes vote on a no issue. People thought they were voting for gay marriage, when really they were voting for the banning of it. Was that a problem, and in terms of your strategy going forward, is this something that you'll have to address?

WOLFSON: Well, most of the experts who've looked at it do believe there was some wrong way voting on both sides. Some people argue it helped the yes side, some people argued it helped the no side.

I think, actually, at the end of the day, when we go back on the ballot, if that's what we have to do, and I think we have to work on the assumption that we may well have to, we really just need to do a really good job of being clear about what we're talking about.

But in this case the ballot measure will be a yes vote in favor of fairness and equality, and a no vote will be a vote for discrimination.

COX: Here's a phone call we'd like to take right now. This is Gregory joining us from Irvine, California. Gregory, welcome to TALK OF THE NATION.

GREGORY: Hey, how's it going?

COX: Fine, how are you, sir?

GREGORY: Good. In the ruling itself, one of the most interesting lines to me was about this - a line about how the gender roles in our society had their time, and the exact quote was that time has passed.

It seemed to me that the judge was really ruling that in his opinion this idea that there are, you know, distinctions between genders, you have, you know, male gender roles and female gender roles for religious purposes, those are important where you have the - but that's sort of a social opinion.

Where is the constitutional basis that gender roles' time has passed? Why is that not allowed, that there were - couldn't the voters have - could the voters' opinion on whether gender roles still play a role in our society matter, rather than judge's opinion?

COX: Gregory, thank you for that call. What about that? Is this an example, as those who are on the other side are suggesting, that the judge was an activist? Is this - this comment that we just heard, is that an example of activism from the bench?

WOLFSON: Well, first of all, activism is a term we throw around as a label that's supposed to mean when we don't like what a judge does. But, of course, we all look to judges to play the role that they're supposed to play under the Constitution, which is safeguarding the basic rights and protections that belong to all of us, even against politicians who make mistakes.

It's not like we want every politician to just be able to vote up and down on whether you or I should have freedom of speech or freedom of religion, or for that matter, the freedom to marry. So that's why we have courts, and that's why we have constitutions. But it's actually funny because the caller must have read my mind. I have the opinion on my computer screen in front of me, and it's opened exactly to page 113, which is the passage that he read.

And what the judge is saying there is that it used to be in the law that we discriminated against women who got married. Women who got legally married under the law, including in the United States, became the legal property of their husband, and they actually lost legal rights. They lost the ability to have a checkbook or to take out a mortgage or to own property. And her whole identity as a woman, as a person, became legally connected and buried in his identity. That's where that whole Mr.-and-Mrs.-his-name thing came.

But we've changed that in the law, and we changed that not just because people's feelings have changed, but because we understand that the Constitution requires equality of all people, including equality of the sexes.

And so those of us who believe in a Constitution that safeguards basic rights and protections for all individuals - regardless of sex, regardless of religion, regardless of race, regardless of sexual orientation - believe that that's exactly what the judge has done here. He has said that the notion that, in marriage, you have to have a man and a woman, as opposed to a man who loves a woman, a woman who loves a man, or a woman who loves a woman, or a man who loves a man, is an artifact of a time that - where the law enforced sex roles in a way that we no longer believe and understand is acceptable under our constitutional guarantee of equal protection.

COX: Evan, thank you very much. Evan Wolfson joined us from the office of Freedom to Marry in New York City, where he is the executive director. He is the author of "Why Marriage Matters." Evan, once again, thank you.

WOLFSON: Thank you.

COX: You're listening to TALK OF THE NATION, from NPR News.

So now, let us swing all the way back to Dahlia Lithwick, who has been very patient waiting for us - senior editor and legal correspondent for the online magazine Slate.

So you got to hear, Dahlia, the two points of view represented by the last two guests that we had, and a couple of the calls. Is this going to be able to be solved, in your opinion, strictly along legal lines, or is - in some way or another, the popular culture, the popular thought, what some are calling activism from the bench, is that likely to creep into how this is ultimately resolved?

LITHWICK: Well, I really do think, Tony, that this is going to get resolved by demographics more than anything else, more than judges or legislatures or ballot initiatives. All the evidence that we've seen is that public opinions show - for whatever reason public opinions show that Americans have become more and more comfortable with gay rights over time, and that - and I think this goes a little bit to Evan Wolfson's point, you know, as we see movies and we meet neighbors and we have teachers in the schools, we no longer have that sense of other that makes us think that there is something sort of this really horrifying going on.

And so I think you're seeing a huge difference, for instance, in the way young people in America view these issues, as compared to older people in America. And I think this issue, in some ways, is just going to get resolved over time as, you know, you cited to the anti-miscegenation cases, Loving, you know, as cultural views shift. And people just come to a point where they say, you know, I can't really think of five good reasons that this hurts my marriage. I think that's how it's going to change.

Does that mean there's not going to be ugly court battles and name-calling and, you know, slap fighting all the way to the Supreme Court? There will be, but it seems to me that this is one of those issues that is going to work itself out much more in the court of public opinion over a long period of time than anywhere else.

COX: I noticed that in California the governor, Arnold Schwarzenegger, and Attorney General Jerry Brown stayed on the sideline for this. Jerry Brown, obviously, is the candidate for governor in the state. Schwarzenegger is leaving office - termed out. So the fact that they are staying away from this gives me - makes me wonder whether or not, across the nation, there is some sense of what legislatures - state legislatures are likely or are not likely to do as a result of this, and perhaps they are leaning on the federal court to - I don't want to say bail them out, but I suppose that's the best way to describe it.

LITHWICK: Well, I think it is a real question about who's going to bail out who. I think it goes back to this issue of who should properly be deciding these matters. I think probably the courts would really hope that these get decided by a legislative act and by ballot initiatives, so that the courts don't have to deal with it.

And in the end of the day, I think this goes to this question of the courts have crept more and more deeply into these social issues in the last few decades. And now they're there. And whether they like it or not, in some sense, the buck stops with them.

You heard a lot of Brian Brown's framing of this issue as how can one man, you know, upset the votes of millions of people? I think this comes down to this very fundamental constitutional question of how do we decide this issue? Do we decide these issues at the ballot box, or do we decide them in our courts? And I think Evan Wolfson made the point that there are simply some issues that don't get decided at the ballot box.

One of the quotes in Judge Walker's opinion goes decades back, and Judge Walker says: Fundamental rights may not be subject to a vote. And it seems to me that that really is the question here, whether the public gets to decide these matters, whether legislators get to decide these matters or, at the end of the day, if there are constitutional questions, even if 99 percent of Californians say we don't like something, if there is a constitutional issue at stake, then perhaps that's where the courts must step in.

COX: Well, certainly, we will be back talking about this next week, once we find out what Judge Walker's decision is going to be with regard to lifting the stay or not.

Dahlia Lithwick is senior editor and legal correspondent for the online magazine Slate, and a contributor to Newsweek magazine. She joined us from a studio at the University of Virginia. Dahlia, thank you very much.

LITHWICK: Thank you so much for having me, Tony.

COX: And coming up, T-shirts, families, stories, photos and barbecues. Summer means family reunions, and we have the story of one of the largest and most historic happening right here this weekend in Virginia.

I'm Tony Cox. It's TALK OF THE NATION, from NPR News.

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