MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days on KPBS. The nation's first federal trial on the issue of same sex marriage is underway in a courtroom in San Francisco. This time, instead of claiming that a ban on same sex marriage violates the California constitution, plaintiffs have upped the ante and say the gay marriage ban violates the U.S. constitution. Whatever the outcome of this trial, because the issue is now in federal court, California's Proposition 8 marriage ban is eventually expected to be heard by the nine justices of the U.S. Supreme Court. Joining us to discuss the legal and political implications of this trial are my guests. Matt Stephens, partner in the San Diego law firm Stock Stephens, instructor of constitutional law at UCSD. He’s been working on LGBT civil rights for a decade. And, Matt, welcome to These Days.
MATT STEPHENS (Attorney): Good morning. Thank you.
CAVANAUGH: Joe Mathews, an Irvine Senior Fellow with the New America Foundation and former staff writer for the LA Times. He’s author of “The People’s Machine: Arnold Schwarzenegger and the Rise of Blockbuster Democracy.” And he’s also attending the trial in San Francisco. Joe, welcome.
JOE MATHEWS (Irvine Senior Fellow, New America Foundation): Great to be with you. Thank you.
CAVANAUGH: We’d like to invite our audience to join the conversation. Do you think taking the issue of same sex marriage to another court is a good idea? If the U.S. Supreme Court got this case, what do you think it would decide? Give us a call with your questions and comments, 1-888-895-5727. Matt, start us out by giving us a timeline, if you will. California voters passed Prop 8 in November of 2008 banning same sex marriage in the state. Bring us forward to this trial, Perry v. Schwarzenegger.
STEPHENS: Right. After the Prop 8 decision, the judges ruled, the judges of the California Supreme Court, ruled that the ban had to be respected in the sense that it was not a revision of the California constitution, a very technical procedural case that upheld Prop 8, but the court also upheld the 18,000 marriages that had happened between the May decision and the November vote. Now what we have, and it was filed the very next day, was a preliminary injunction challenge on federal constitutional principles, so that’s the case that’s being heard.
CAVANAUGH: And what rights in the U.S. constitution do the plaintiffs claim Prop 8 denies them?
STEPHENS: Bottom line, equal protection. That is everybody has equality under the federal constitution.
CAVANAUGH: And what – Is there any language in the constitution that has bearing specifically on the right to marry?
STEPHENS: There is no express language in the constitution itself. It has all evolved from the marriage decisions throughout the years, the most preeminent of which is the Loving versus Virginia decision. That involves an interracial couple who wanted to marry in Virginia and the court explained that marriage is a fundamental right that can’t be precluded for some based on who they choose as their partner.
CAVANAUGH: Now, Matt, who is defending Prop 8 at this trial?
STEPHENS: There are a couple of organizations that are involved in the defense and I’m currently blanking on the attorney’s name, who I just listened to some of his work this morning.
CAVANAUGH: Oh, but the organizations involved are…?
STEPHENS: They are essentially the same organizations who supported the Prop 8 being on the ballot in the first place.
CAVANAUGH: Right. Now, Joe Mathews, you’ve been attending this trial in San Francisco. And as we heard, Perry v. Schwarzenegger, Governor Schwarzenegger’s actually named as a defendant in this lawsuit but he has chosen not to defend Prop 8. Tell us about that. Why is that?
MATHEWS: Well, because the governor is – has done a lot of gymnastics on this issue during his time in office. But my sense of him is that this is not an issue he wants to get involved with or fight. While he has not admitted much to me, my general sense of him and the people around him is that he is a person who is not opposed to same sex marriage. He’s said things, a few things, to that affect publically (audio dropout) said. And also the Attorney General Jerry Brown, who could represent the state and would typically represent the state when a ballot initiative approved by the voters of California is challenged, has also backed down. I think that’s probably fair those folks are – you know, unusual but those are folks whose heart is clearly not in this fight. I think it – I do know for a fact that it causes the governor some pain that his name is on this particular case.
CAVANAUGH: Well, in fact, yesterday, if I’m correct, the judge in this case asked why, if the California Attorney General Jerry Brown is not defending it because he takes the position that it’s unconstitutional, why he didn’t take that position when Prop 8 was on the ballot.
MATHEWS: Because his view has been that this is not an issue that – at least when we’re talking about Schwarzenegger, this is an issue that is not one that he wants to get involved in. He doesn’t see it part of his purview as governor to be deeply involved in it. He did veto two pieces of legislation that would’ve via statute cleared a path for same sex marriage. But in doing so, I think he probably was on – probably was serving the interest of same sex marriage because those statutes are, I think, by any reading of the California constitution were unconstitutional, they would have been overturning by an act of the legislature, an act of the voters, Prop 22, back in 2000.
CAVANAUGH: I see.
MATHEWS: And you can’t do that in California.
CAVANAUGH: I’m speaking with reporter and author Joe Mathews and Attorney Matt Stephens. We’re talking about the issue of same sex marriage, the case that’s underway in a federal courtroom in San Francisco. Our number, if you’d like to join our conversation, is 1-888-895-5727. Matt, tell us about the procedure of this trial. There’s no jury, right?
STEPHENS: That’s correct. It’s what’s called a bench trial.
CAVANAUGH: And what has gone on so far?
STEPHENS: To my understanding, there have been a couple of witnesses including the plaintiffs. So the first step in the procedure is the judge will hear opening arguments, which he did yesterday, and then testimony is given from the plaintiffs, and I suspect a number of experts will also be called.
CAVANAUGH: And in a trial like this, Matt, can the judge also ask questions?
STEPHENS: Absolutely, and the word is that he’s being very proactive, that he is engaged both in the questioning of witnesses and during the opening arguments.
MATHEWS: And…
CAVANAUGH: And Joe – Yes. Go ahead, Joe.
MATHEWS: That’s correct, and just to add to that, a lot of the most interesting testimony so far has been both from the couples who are suing, saying that being denied marriage, you know, hurts them, essentially makes them feel inadequate, but also from a historian from Harvard who was also on the stand so far this morning and has talked about the history of marriage, a lot about whether – what marriage is for. She’s argued, this professor from Harvard, Nancy Cott, that marriage has never been about procreation. And we had the spectacle this morning of the fertility reaction of the sterility of the father of the country being dissected, George Washington, apparently, according to the professor, was sterile. So it’s been a very interesting sort of day plus, to this point.
CAVANAUGH: I can imagine that it has. Now, what are the plaintiffs – what have they actually said has been denied them because of their inability to get a legal marriage in California? I’m speaking to Joe.
MATHEWS: A lot of it, you know, boils down to social acceptance, that was the testimony and a feeling of being made an outsider not just in sort of a legal sense that certain, you know, rights that come only with marriage and there are – even in California there are, I believe, 8 or 9 differences in the law in terms of your domestic partnership or marriage but more in just the ability to be part of an institution that is so central to society. Many of the – I think almost all of the plaintiffs in testimony mentioned their own parents and wanting to sort of have – be part of an institution that was important to or still is important, in some cases, to their parents as foremost in their minds for bringing the suit.
CAVANAUGH: And what are we expecting the defendants of Prop 8 to bring to the court? Basically the same arguments, Joe, that they made in promoting the initiative in the first place?
MATHEWS: I think some of those but I expect them to argue much less about marriage and more about the rights of voters, the need to respect the will of voters in a state that has – gives incredible power. I mean, this is where my expertise is, I’m not a lawyer, but it’s in direct democracy and ballot initiatives and I consulted with people from Chile to Switzerland on the initiative power in California and we have both the most powerful and most inflexible initiative power anywhere in the world. When voters, you know, do something, only voters can undo it and that’s our constitutional tradition. It’s also a source of a lot of our problems that go beyond social issues and go deeply into how, you know, we spend money and budget but there it is. I expect them to – that’s probably the strongest argument of the pro-Prop 8 thought.
CAVANAUGH: So in other words, not only that the voters have spoken but how this trial might impact future voter initiatives in California, is that right, Joe?
MATHEWS: I think that’s right. I think that’s a very strong argument and they have the weight of, you know, the – I mean, this is in federal court and that’s, you know, an argument grounded in California state constitution and history but the argument respecting – for the courts to respect the will of the voters in something like this, I think, is certainly politically a strong one. I would leave it to the lawyer on the other line to argue – to tell you whether – how strong legally that is.
CAVANAUGH: Well, Matt, please do tell us what your take is on the legal strength of arguing that overturning this voter approved initiative might undermine the idea of voter initiatives in California.
STEPHENS: Right, it’s certainly the safest of the arguments that could be made politically. And it’s interesting to me that at least one of the defense lawyers asked one of the plaintiffs did she think that it was appropriate to have sex education taught to second graders and, clearly, that’s not a legally strong argument but it’s one designed to, you know, get people’s hackles up. In terms of staying the safe course, the constitutional argument and protecting the ballot measure is the strongest argument that they have because the will of the people appears to have been exercised. The weakness in that argument is the fact that, as Justice Moreno pointed out in his dissent that the constitutional principles that protect fundamental rights still need to be protected even in the face of a majority vote because in our constitutional democracy, the minority has to be protected. That’s part of our system. So it – I can’t see Justice Walker going down the road of understanding that there was an impingement of a federal constitutional right by passage of the ballot measure.
CAVANAUGH: We are speaking about the federal trial underway in San Francisco on the issue of Prop 8, the proposition that banned same sex marriage in California. We’re inviting your phone calls at 1-888-895-5727, and my guests are Matt Stephens and Joe Mathews. Joe, you know, and I want to ask both of you this. Let me start with Joe. You know, many supporters of same sex marriage rights in California did not want to see this federal lawsuit go forward partly because polls show attitudes among voters changing towards gay marriage. So let me ask you, do you think without a court case like this, we could soon see a same sex marriage initiative get approval from voters. Joe.
MATHEWS: I think it depends on what you mean by soon. I don’t think this year it’s going to happen. Most of the groups that support this have decided it’s strategically too soon. And I think it’s a tall order in 2012. The – Some of the polling doesn’t show a lot of movement from the last election of Prop 8 in 2008. It’s a very closely divided thing. And I think in the long term, when you look at, you know, sort of the age breakdown in polling and you see that essentially everyone – every age group, you know, except for people, you know, 60 and older are for same sex marriage, eventually you’re going to get there. I tend to think that, you know, there is a risk to this if you get a Supreme Court precedent that’s really damaging to same sex marriage there is that risk and you could be getting in the way of a, you know, political judgment. But, again, even if you had a, you know, a same sex marriage initiative pass, I’m quite sure it would be challenged in court and probably in a way that, you know, could take you to the Supreme Court. But then, again, I fear I’m getting into an area where I’m starting to practice law without a license.
CAVANAUGH: Okay, I’ll ask Matt then but, Joe, let me just ask you – it sounds that there’s a lot of people around you. Is that just a busy San Francisco street or are there protestors there?
MATHEWS: There’ve been some protestors but I tried to move away from those folks so it would – so this is a busy San Francisco street…
CAVANAUGH: Okay.
MATHEWS: …and a little bit of music, actually, behind me.
CAVANAUGH: Thanks for explaining that. And, Matt, what is your take on the fact of going through the courts again instead of just waiting for what seems to be the inevitable that California voters themselves will eventually approve a same sex marriage initiative?
STEPHENS: Right, I mean, this is a high risk strategy, waiting for the voters to do it. And I think eventually they will, and I do agree with Joe that it won’t be 2010 but they will eventually. What that gives you is state protection but you don’t get the marriage suitcase that heterosexuals get when they marry so that when a heterosexual couple moves to Texas, they’re still married when they get there. If California has marriage like Massachusetts has marriage, there’s an entire mid-section of the country that the same sex couples will not have the same marriage rights as they travel across the country. So the high risk strategy of going to the federal system is that if you get protection under the federal constitution, you also get the marriage suitcase and it’ll travel with you across the country. It is a high risk strategy, however, because when you do the counts on the Supreme Court, you’ve got Scalia and Roberts and Thomas and Alito who are likely to be definitively against same sex marriage. That makes Kennedy essentially the swing vote. On the positive side, Kennedy wrote two very important decisions that’ll be implicated in this discussion, the Romer v. Evans decision, which gave us what we now call rational basis with bite, and then the Lawrence v. Texas decision, which made sodomy unconstitutional, sodomy laws unconstitutional.
CAVANAUGH: Let’s take a phone call. We’re taking your calls at 1-888-895-5727. And Max is calling from the North County. Good morning, Max. Welcome to These Days.
MAX (Caller, North County): Good morning, everyone.
CAVANAUGH: Yes. How can we help you?
MAX: Well, I just wanted to say a couple of things in regards to the difference from the previous proceedings in regards to the right of people to vote. This is – I believe historically it’s the first time when people are using the right to vote to take away rights from the – from a minority, that’s, I think, one of the major things that’s been discussed in the last few days to the court. And sometimes I believe through this conversation (audio dropout) the difficulty to understand the real consequences to the activity of people that are not able to marry. Even when they are able to marry that they don’t – they are not recognized, the federal rights.
CAVANAUGH: Right, we were just talking about that. We’re just talking about, what did you call it, the luggage – the luggage…
STEPHENS: The marriage suitcase.
CAVANAUGH: The marriage suitcase, right, that goes with you from state to state when you do – when your right to marry is actually acknowledged by all the states rather than just a couple. Now, I’m wondering, Matt, how long is this – case might take to get to the Supreme Court?
STEPHENS: Actually, this should go on a very quick pace so that when you have injunctive relief like this case, it is immediately appealable. So the next step and likely to happen within a very short timeframe, say six months, would put the case in front of the U.S. Supreme Court potentially.
CAVANAUGH: Now you have acknowledged that this is a high risk strategy. Tell us what a ruling from the U.S. Supreme Court against same sex marriage could actually do, basically upholding Prop 8 against same sex marriage. What might that do to gay marriage across the country?
STEPHENS: Well, I think it would be much like the Bowers decision that was eventually, about 20 years later, overturned by the Lawrence decision. So in some sense, on the positive side, you could say it would contribute to the dialogue but it could potentially enshrine constitutional discrimination for 20 years or thereabouts until the decision is overturned. And I think ultimately the decision would be overturned.
CAVANAUGH: Now, Joe, I know a lot of people in the gay rights movement have not wanted to see this trial move forward into federal court but that’s not obvious from the people who are protesting or who – demonstrating outside the court, largely in – against Prop 8, is that correct?
MATHEWS: That’s been correct. You know, I missed that demonstration yesterday so I was fortunate. Today it’s a much smaller number of groups on both side. I just want to actually, if you don’t mind, address something actually the caller said.
CAVANAUGH: Yes.
MATHEWS: Which is there’s a long history in California of voters using initiatives and referendum to take rights away from people. It goes back to very much the beginning, sort of measures on prohibition to, you know, an early measure taking – undermining the land rights of people of, you know, largely of Asian descent to, you know, in the 1960s when sort of fair housing rights for people of color were taken away to votes against rights for immigrants in the 1990s. There’s a long history of this and this has always been sort of a problem and a source of convention and controversy for the, you know, next – Next year, it’ll be 100 years that we’ve had direct democracy at the state level in California and this has always been an issue.
CAVANAUGH: And I suppose those rulings kept the courts busy as well.
MATHEWS: They did.
CAVANAUGH: Yeah. Let’s take another call. Our number, by the way, is 1-888-895-5727. Susan is calling from Leucadia. Good morning, Susan. Welcome to These Days.
SUSAN (Caller, Leucadia): Good morning. How are you?
CAVANAUGH: I’m doing great. Thank you.
SUSAN: I’m speaking as one of the couples that was married prior to the passage of Prop 8.
CAVANAUGH: Yes.
SUSAN: And the meaning of marriage to us was amazing. We had been together a number of years and we were astonished at what it felt like to stand up in front of friends and family and be admitted to society as members of the tapestry of society and for the inclusion and the message that that sent our kids. It was enormous.
CAVANAUGH: Tell us more about that, Susan. What was before and after like, your marriage?
SUSAN: We – Nothing changed, of course, about our commitment to each other but the sense of actually fully belonging as part of society and of being inside that circle really struck us and we hadn’t expected that.
CAVANAUGH: Well, I have to thank you for your phone call and I have to end it because we want to take another call. We’re racing against the clock here. Thank you, Susan. Martin is calling from Rancho Penasquitos. Good morning, Martin. Welcome to These Days. Martin, are you there?
MARTHA (Caller, Rancho Penasquitos): Martha?
CAVANAUGH: Oh, is it Martha?
MARTHA: Yeah, Martha from Rancho Penasquitos.
CAVANAUGH: I’m so sorry.
MARTHA: Okay, yeah.
CAVANAUGH: Yes. What…
MARTHA: Okay, so my comment has to do first off with earlier in the program it was mentioned that there was a Harvard professor that was saying that marriage had nothing to do with procreation.
CAVANAUGH: Yes.
MARTHA: And I think if you look across the country and in the state of California this is what carried the vote, is that the feeling of the people is that marriage does have to do with procreation, that it was instituted as a state institution that kind of validates what’s been going on in our societies for millennia and it really is to create a sheltered place for the conception and the raising of children. And so, you know, the Loving versus Virginia, ironically, is something that – it’s a court case and it had to do with the fact that bringing a black person and a white person together would make a mixed race child. So it’s ironic that you take a case like that and you support gay marriage, which is never going to result in creating the conception of a child.
CAVANAUGH: Well, I thank you, Martha, and I’m sorry for the mix-up about your name. Thank you so much for calling. We’re kind of running out of time, gentlemen, and I want to ask you, Matt, you expect a ruling from this court pretty quickly then after the testimony concludes?
STEPHENS: Yeah, I think the court will decide it. He may ask for additional briefing after all of the evidence comes in. He may take the case under submission but, you know, probably within 30 days. And if I could speak to the issue that Martha raised, it’s actually from a legal perspective not the case that marriage is fundamental, not because of the potential for procreation but because of the relationship between the two adults joined in the union. And for that reason, legally marriage does not preclude couples, even heterosexual couples, who have no intention of procreating or no ability to procreate and so…
CAVANAUGH: We’re pretty much out of time, Matt. I thank you so much. I think that point has been gotten across. Thank you so much, gentlemen, for being with us today. Matt Stephens and Joe Mathews, thank you for your wise instruction. We are – Please stay with us for hour two of These Days. You can post your comments at KPBS.org/TheseDays.
