Calif. Supreme Court Upholds Proposition 8 Crowds gathered in San Francisco to hear the California high court's decision. Per Proposition 8, same-sex couples are not allowed to marry. However, the marriages of 18,000 same-sex couples who have already married will continue to be recognized.
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Calif. Supreme Court Upholds Proposition 8

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Calif. Supreme Court Upholds Proposition 8


Calif. Supreme Court Upholds Proposition 8

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This is TALK OF THE NATION. I'm Neal Conan in Washington.

Crowds gathered in front of San Francisco City Hall, across the street from California State Supreme Court today, to await a ruling on Proposition 8. As many expected, the court upheld the ban on gay marriage.

The constitutional amendment approved by voters last November defines marriage as between one man and one woman. But the court also addressed the status of 18,000 same-sex marriages performed before the vote and ruled today that they will continue to be recognized as legal.

The compromise leaves both pro- and anti-Prop-8 camps unhappy, at least in part, and raises some complicated questions about what happens next in California and how this ruling accords with the United States Constitution.

Later, in a not-unrelated topic, we'll hear from a critic and from a supporter of President Obama's selection for the United States Supreme Court, Judge Sonia Sotomayor.

But first, Prop 8. We especially want to hear from listeners in California today. How does this ruling affect your life? 800-989-8255 is the phone number. Email us, You can also join the conversation on our Web site. Go to Click on TALK OF THE NATION.

Scott Shafer is a reporter for NPR member-station KQED and the host of THE CALIFORNIA REPORT and joins us now from city hall in San Francisco. Nice to have you with us today.

SCOTT SHAFER: Good to be with you, Neal.

CONAN: And what's going on outside the building?

SHAFER: Well, I'm in city hall right now, and I'm looking down at an intersection just across from the building, and there's several hundred people who are sitting down, and some are standing, in an intersection. They are carrying signs. There's a couple of American flags. They're chanting. But for the most part it's peaceful. They're completely blocking traffic, but in the middle of the circle, there are about four or five police officers. They seem to be just enjoying the sunshine and standing there with their arms folded. So I think they were prepared for this kind of demonstration. There doesn't seem to be any kind of violence or anything particularly disruptive other than to traffic.

CONAN: And no counter-demonstrations, no demonstrations in support of the court ruling?

SHAFER: Well, there certainly were in front of the courthouse. There was a handful of yes-on-8 supporters with signs. They were very prominent but very small in number, as you might expect. I would say they were outnumbered, you know, 10 or more to one, but they were having intense conversations and in some cases shouting matches and discussions about the Bible and other things with supporters of gay marriage, but they have mostly disbursed.

CONAN: And I know this is a lengthy opinion, and you've probably had a chance just to scan it, but as I understand it, the issue came down to less about equal rights and more about the rights of the people to amend the constitution.

SHAFER: That's absolutely right. It was, as you said, a very long opinion. It was 136 pages, and this is not the same question that the courts have taken up, say, in Iowa recently. This is not a question of whether gay couples should be allowed to get married. That was an opinion that the court issued last year, four-to-three ruling.

This was, as you say, this was a question of whether Proposition 8 was properly put before the voters and whether it is a valid way to amend the constitution of California on an issue like this. And they ruled six-to-one that, indeed, it was valid. And also, as you said, they ruled it was not retroactive. It does not apply to the marriages that occurred before the election. So those 18,000 couples are still married.

CONAN: But there seems to be a huge question of logic there. If a state constitution now defines marriage as between one man and one woman, how can it not define it that way for these 18,000 couples?

SHAFER: Well, that'll all be worked out in various courts, I guess, as those issues come up. Say, for example, when a couple is divorced. But the court made it very clear in its opinion today that this was a narrow ruling. This only applies to use of the word marriage for same-sex couples, it does not apply to any of the other constitutional rights that were laid out by the court in its historic ruling last year.

So - and that, in fact, they said that unanimously. So they were very clear that anyone who tries to read too broadly into this ruling is going to be, you know, disappointed or shut down in the courts.

CONAN: Well, let me try to raise some other questions, though.


CONAN: What happens if a legally married same-sex couple in California moves to, just to pick a state out of a hat, Texas? Are they going to be continued to be recognized as legally married?


SHAFER: I've only been to Texas once, but from what I've heard about Texas, I seriously doubt that. Obviously, Texas is not one of those states that allows same-sex marriage. If they went to Massachusetts or Vermont perhaps, Iowa, they might be recognized, and I suspect they would be recognized. That's obviously for those courts in those states to decide.

One question, and I'm maybe anticipating another question you may have...

CONAN: Go ahead.

SHAFER: What about the couples who were married - or couples married in other states if they moved to California, say a couple from Massachusetts? Would a gay couple married in Massachusetts be legally recognized in California? And the answer is yes, they would be, if they got married before the election, before November 4th. So when gay marriage was legal in California, if they got married somewhere else legally and they came to California, that marriage would be recognized.

CONAN: But only during that window of time when, well, just about from almost exactly a year ago until the election?

SHAFER: That's correct. That was the interpretation of Shannon Minter, who argued on behalf of same-sex couples before the state supreme court back in March. And so as I said, I have not read all the ruling, and neither had he, but that - he said that was pretty clear in the ruling, is that those marriages will be valid.

CONAN: And we're just beginning to get a reaction, I suppose, to this, but again there are parts of this that will leave both camps unhappy.

SHAFER: Well, I think - yes, the answer is yes. Certainly the supporters of Prop 8 are unhappy that these 18,000 marriages were upheld and upheld unanimously. But their big issue, really, was that this ballot measure be upheld, and that's what they got.

I talked to some married couples who were very unhappy about the ruling, even though their particular marriage was upheld today. In one case, the couple was crying because they feel that an injustice was done, even though their particular marriage was upheld.

But I think both sides know that this is not the final chapter of - even Governor Schwarzenegger today issued a statement saying that he expects either the courts or the voters to ultimately approve same-sex marriage in California. Senator Feinstein issued a similar statement, and I think both sides know that that day is coming.

CONAN: And it could come, another election in any case, as soon as November.

SHAFER: Not this November. It could come as soon as November of 2010, and in fact, there are a couple - in California, there are always people circulating petitions for signatures, and there are at least two related to gay marriage that are being circulated for signatures for the November, 2010 ballot. So it is conceivable that it will be back before the voters that soon.

I have to say there's a lot of disagreement within the gay and lesbian community, within the activist community, about what is the right timing for this. There are some who feel that they ought to try to cash in on the momentum in other states and go on the ballot sooner, and there are others who say no, we have to really do the groundwork and convince more voters that they need to support gay marriage and wait until, say, 2012, and that decision has yet to be made.

CONAN: And as far as, well, the California Supreme Court - that's the top court in California - is this going to be appealed to federal court?

SHAFER: Well, the question of whether Prop 8 is valid or not is a state question. Now a couple or a legal organization could challenge a ban on gay marriage based on, say, the Equal Protection Clause of the Federal Constitution. And in fact, given that different states are dealing with this issue in very different ways, it may ultimately end up before the U.S. Supreme Court.

However, legal groups - gay and lesbian legal groups - are not very excited about the prospect of that happening, and I think they will discourage any kind of a federal challenging this based on the Federal Constitution, just because they don't think they would win with the current - the way the Court is currently constituted.

CONAN: And Scott Shafer, thank you very much. We appreciate it.

SHAFER: My pleasure.

CONAN: Scott Shafer, a reporter for NPR member-station KQED in San Francisco, joining us today from city hall. As he mentioned, from across the street, the California State Supreme Court ruled today that Proposition 8 is constitutional. It upheld the ban on gay marriage, but it also ruled that the 18,000 couples married legally before the ban went into effect last election day, well, their marriages are still valid.

How does this affect your life? 800-989-8255. Email us, And let's turn to Ann(ph), Ann calling us from San Francisco.

ANN: Hi, thanks for taking my call.

CONAN: Go ahead, please.

ANN: I'm a gay woman. I married my partner of 18 years now before the election last year, and I'm still very angry about this. I'm obviously happy that my marriage is still considered by legal, but I'm very angry that this has become a religious issue because if anyone would like to do my tax returns for me every year, they find out very quickly this is not a religious issue. This is a government issue, and I think that until we figure out some way to let go of the idea that the word marriage has to be used in a discriminatory way, I think that we - we're going to, you know, be having this discussion and this fight until people feel equal under the law.

CONAN: Is this the proper way to do it, put the issue before the voters?

ANN: Well, I don't think so because I feel like I'm in the minority class that has been basically stabbed in the back by the majority. I think that I feel like that should be something that I'm protected from by my government.

However, I also think that very quickly, ironically, that this will probably change, probably in the next 10 years from the statistics I've seen. This is not going to - most people are going to believe that it's okay for gay people to be married. So it's kind of ironic because in that period of time, things will change, and I guess then I'll agree with the decision.


CONAN: I see, and - but 10 years can be a long time, too.

ANN: Absolutely, especially the 10 years of feeling discriminated against.

CONAN: And as you - do you expect that this is going to make a daily difference in your life?

ANN: Well, I don't think it makes a daily difference because I have confidence in my relationship. I consider myself being married, but I do feel like in family situations, I feel like in government situations, it comes up very weird and strange ways.

I own my own business, and my partner, I actually hired her to help me in my business. And in the state level, I withhold unemployment taxes because we're married, but in the federal level I don't. So it's very strange how it comes up, and I'm constantly reminded that we're second-class citizens in so many ways.

CONAN: Thanks, Ann, very much for the call. We appreciate it.

ANN: Thank you.

CONAN: California's state supreme court, just within the hour, upheld Proposition 8, the ban on same-sex marriage. How does this decision affect you? We're especially wanting to hear from our callers in California today, 800-989- 8255. Email us, Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.


CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. Two big decisions related to the courts today: President Obama's pick to replace Justice David Souter on the United States Supreme Court, Judge Sonia Sotomayor now faces Senate approval. We'll talk more about her nomination and what that means for the future of the Court a bit later in the program.

Right now we focus on the decision from California's supreme court to uphold Prop 8. The court ruled today, six to one, that the voter-approved ban on same- sex marriage stands. It also unanimously decided that the thousands of couples married before Prop 8 remain legally married.

If you live in California, how does today's ruling affect you? Give us a call, 800-989-8255. Email us, You can also join the conversation on our Web site. Go to, and click on TALK OF THE NATION.

Here's an email from Mary(ph) in California. I'm married - I'm married to my husband for 20 years with a lovely daughter, am not directly affected by the decision to ban gay marriage. I am profoundly saddened that anyone would deny a legitimate marriage to someone because he or she is gay. This vote and decision by the court reminds me of the separate-but-equal court decision in 1896. I thought my state, California, was more evolved.

Joining us now is Jim Garlow, pastor of the Skyline Church in La Mesa, California. He's been following the battle over Prop 8 today - joins us from his office there. Very good of you to be with us today.

JIM GARLOW: Thank you, an honor to be with you.

CONAN: And I wonder what your congregation is talking about today.

GARLOW: Well, the view here is very straightforward, in that we're very, very thrilled that the court has chosen to uphold such an important principle: the consent of the governed and of the people of California who voted twice on this. So there was a sense of relief with those that I was gathered around, that the court has affirmed the vote of the people, not once but now twice we have voted on the same, exact issue.

CONAN: And the previous prop was the one overturned by the court a year ago.

GARLOW: Yes, Prop 22, which was in the California Family Code, in contrast to Prop 8, which is actually in the constitution now itself. Both had the exact same 14 words.

CONAN: And what about the other part of the decision, that the 18,000 couples who were married, same-sex couples married legally during the window, remain married?

GARLOW: We're disappointed with that. We think it doesn't square with the law because Prop 8 is really now Article 1, Section 7.5 of the California Constitution. And bear in mind all it says is only marriage between a man and a woman is valid and recognized in California.

I was in the Supreme Court the day that this was debated, on March the 5th, and they actually raised the question: What is is? What does is mean? That reminds us back to the time President Clinton, when that same question came up, what is is, because the law reads only marriage between a man and a woman is valid and recognized in California? Is that retroactive? Is it not retroactive?

Well, it stands alone. It simply says only those marriages are recognized, present tense. So we cannot quite figure out what is the legal justification for upholding. We're disappointed on that. But the overarching issue, the real core issue of this was the issue of Prop 8 being valid, and so we're quite thrilled with their result on that.

CONAN: And as this goes ahead, there will be obviously complications in other court cases coming up, and maybe, as we've spoken about earlier, another referendum to put this back on the ballot and re-fight this issue again. It's not going away.

GARLOW: Well, they had the most ideal conditions, the no-on-8 did, that they would ever have. They were able to attract a number of younger voters, and it was a very, very strong Democrat year, which should have worked in their favor. They had the advantage of being a no, and no generally gives you about a five-to-10-point advantage. So they outspent us by $5 million. They spent $43 million on their side.

They have a number of things that came together that worked in their favor that aren't necessarily going to be the case in the future. And support for - in the PPIC poll here - support for same-sex marriage, has dropped, has dropped now to 43 percent, and support across the state has risen to 49 percent.

So 49 to 43 percent, and that's not where we were a number of months ago. So support for same-sex marriage has fallen in this state. So they may come in 2010, we're not certain, or 2012, or 2016, but the people of California have spoken, and they'll speak again on this.

CONAN: Okay, something that we consistently hear from callers and emailers is what is the problem that some people have with the word marriage? How does the marriage of two women or two men threaten the marriages of, well, your congregants, for example?

GARLOW: Well, it's more than my congregants. It'd be the whole state in this case, and if you track historically, in those areas that have had same-sex marriage, same-sex relationships, invalidated by the government, you have a corresponding loss of freedoms. They fall into basically three categories, and it's primarily loss of parental rights, of parents to teach their children as they choose, a loss of business people, and a loss of religious freedoms.

Ake Green in Sweden, for example, sentenced to one month in prison for simply preaching from Romans, Chapter 1. So there's a loss of freedoms that's substantial. But more important than that, we really believe firmly the social science supports the fact that a young child, a baby, deserves to have a mommy and a daddy. There's an advantage. The man who contributed the sperm, the woman who contributed the egg, they are best-suited biologically and otherwise, and emotionally, for raising that child, and a child has a right, we would say, to a mother and a father, and that's the best for society.

CONAN: And I wonder, you may be in the process of doing this already, but what do you think you might be talking about come Sunday morning?

GARLOW: Well, we'll certainly reference it. We do not feel - and this is interesting. I just find this among so many. This has risen up in conversation, one after another, this day is not the sense of celebration. You might think we'd be cheering, but it's not that tone. It's a much more somber tone. It's a tone of humility and a tone of thanksgiving.

I've been quite impressed with the emails that have been coming in to me and interesting language being used, saying it is not right for us to, quote, "celebrate." That word was used several times. Instead, let's affirm the decision that's been made, and there's even calls for additional prayer and humility before God on this day, and that's the tone that we're wanting to express.

And I personally have tried through the entire Prop-8 battle, I've invested lots of energy to reach out to the people who are on the opposite side of the issue, even to the top people nationally, to reach out to them and form meaningful relationships so civil discourse can occur, that there's not vandalism and violence like there was in our state right before and right after the election, but there can be a calm atmosphere, a peaceful atmosphere. And we affirm all people. I affirm and love and care for all people in this atmosphere.

I'm very convictional about the definition of marriage, but I affirm and love all individuals.

CONAN: You might understand how some people might not accept that. You can say that, but nevertheless, but this ruling, they say, leaves them as second-class citizens.

GARLOW: Well, it cuts both ways. In other words, when I would say to someone I believe that society has affirmed for the last 5,000 years, that marriage is between a man and a woman, that definition has functioned, they all look at me and say you're a bigot. No I'm not a bigot because I believe what's been believed for 5,000 years. That doesn't make me a bigot, doesn't make me a hatemonger. I care for all in the same way that I would want them to care for me and affirm me because I happen to believe the definition that has stood through millennia is really worth upholding right now.

We think that there is a value to marriage as one man and one woman. The social data backs that up - social-science data backs that up.

CONAN: Jim Garlow, thanks very much for your time today, appreciate it.

GARLOW: A privilege to be on with you. Thank you so much.

CONAN: Jim Garlow, pastor of the Skyline Church in La Mesa, California, also founding director of the California Pastor's Rapid Response Team, and he joined us today on the line from his office.

Let's go now to Rose Greene. She is one of some 18,000 - she is part of one of the 18,000 gay couples married before Prop 8 took effect. She is owner and branch manager of a financial services firm, with us today from her office in Santa Monica, California, and nice to have you on the program today.

Ms. Rose Greene (Business Owner): Thank you, Neal.

CONAN: And what went through your mind as you heard news of the court's decision?

GREENE: Well, my heart is so heavy for my community and for my beloved state of California today. This ruling has, while it is a very shallow victory for the special group of 18,000, my community has been disenfranchised today, and it is of great sadness.

I think it has also shown some serious weaknesses in our system, particularly the way the California proposition process works - that a group, a small group of people from outside the state of California was able to raise the kind of money to present a misinformed and just untruthful campaign.

The confusion between yes's and no's, I can't tell you how many people came up to me after the election and were still confused about whether they should have voted yes or no. And my state of California, which I'm born and lived for 62 years, has now lost its standing as a leader for equality in all of the United States of America.

I also feel I have to comment on the pastor's remarks. With all due respect, I'm not quite sure what planet he is living on, but it must be a very ancient one for him to say that public opinion is going against same-sex marriage. Every poll and every place you read you can see just since the election in November 4th, six states.

CONAN: I think he was talking about public opinion in the state of California.


CONAN: And it's changed in favor of gay marriage in California?

GREENE: Oh, I can't tell you how many straight friends and family came to me right after the election and said a terrible injustice has been done.

CONAN: I don't doubt that that's true, but in terms of the opinion polls, have they switched?

GREENE: Yes, they have been moving in our direction consistently now. Prop 22 lost by serious double digits. We lost this by a much narrower margin. And make no mistake about it, our community is not going to rest until all of our members are treated in an equal manner.

CONAN: I just wanted to ask, obviously there is a - you talk about, I guess, a sense of relief that your marriage is still legal and obviously there's a whole bunch of questions have remain to be answered about that. I wonder if there's a sense of survivor's guilt that you're okay but not others.

GREENE: You know, I've never seen it as survivor's guilt. I think that the 18,000 of us now have an even greater responsibility to work to get the rest of our community included in truly equal treatment. As someone who in a 16-year relationship we became domestic partners the day that the state permitted it and have been so until this marriage ruling, we were married on the very first day that - that we could. And so I do feel like I'm in a position to share with you that there is a substantive and very important difference in having the government sanctioned marriage.

I didn't expect that I would feel particularly different. But it is different because marriage is an unambiguous statement and term. No one confuses the term marriage. The term civil union, domestic partners, those things are open to interpretation. Marriage is unambiguous.

CONAN: Rose Greene, thank you for your time today.

GREENE: Thank you, Neal.

CONAN: Rose Greene is the owner and branch manager of a financial services firm with us today from her office in Santa Monica, California. She married her partner before the Prop 8 banned gay marriage last election day. You're listening to TALK OF THE NATION from NPR News.

And let's see if we can go to Bill. Bill is calling us from Menlo Park. Bill, are you there? Bill, are you there?

BILL: Yeah.

CONAN: Go ahead, please.

BILL: Well, first of all, I want to refute the idea that it's only religious. People who object to the gay marriage - I happen to be an atheist. I've always been an atheist. I'm also a Jew. And I have known discrimination in my life. I'm almost 80. I fail to understand why civil marriage, domestic partners, is not a sufficient status. These people are different. They insist on using the term marriage, which for thousands of years has been known to refer to heterosexual couples. I think that they are making a religious argument. Now, the point is this - year after year after year they are spending money, they're tying up the state of California. We've got much more serious issues in California.

We've got huge budget deficits. Our infrastructure is crumbling. Our schools, which used to be first in the nation, are now virtually last. Why aren't we addressing those issues instead of this stupid argument continuously over one word, marriage? Can't they be satisfied with the legal status of having a partner who is recognized in wills, in tax law, and in every other way accept the term marriage.

CONAN: Bill, we're going to move on to somebody else. But thanks very much for the call.

BILL: Thank you.

CONAN: Bye-bye. Here's an email from Kathy, married to Lisa in Northern California: I'm also very angry. This is not a religious issue. We're not forcing churches to marry us. We just want the right to be married, the same right that opposite-sex couples have. It's a hardship to do taxes every year but that isn't it. This is discrimination. My relationship will still be here and healthy when the state decides to put an end to discrimination. This decision does not affect my marriage, however it is a painful reminder that we are considered second class citizens, that we've no rights, no protection, that our daughter's have parents that cannot be legally joined. This is a legal issue. Marriage is a legal contract. This has nothing to do with religion. It should be treated as legal and not a religious issue.

GARLOW: I'm a 35-year-old New Testament Christian pastor. My understating of Jesus as gospel is that all of us are loved of God with infinite completeness. As a citizen I want my nation and my state of California to deal with every person with inclusiveness, fairness. It is time we recognize the maturity of a system that allows everyone to marry.

And quickly from Scott in San Francisco. A comment and a question as a gay man in San Francisco who's not that disappointed in the ruling. The decision did not overturn the previous ruling that guaranteed equal protection, something I think anti gay-marriage folks thought would happen. And two, we basically want states to recognize our relationship to be the same and equal to theirs. Why is that so difficult for heterosexuals to do, or on the other side, what is really at stake in the use of the word marriage if we enjoy all the protections and rights that heterosexual couples enjoy?

Obviously we didn't have time to get to all of your calls and emails. But we thank you for calling and writing us.

CONAN: If you would like to leave a comment, go to our Web page at, click on TALK OF THE NATION.

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