TOPICS > Politics

Same-Sex Marriage Battle Heads to Federal Court in Calif.

January 11, 2010 at 12:00 AM EDT
Loading the player...
California's ban on same-sex marriage went on trial Monday in federal court. The landmark case is being likened to a modern version of Brown v. Board of Education, in which the issue of civil rights became a legal matter.

GWEN IFILL: The fight over gay marriage went to federal court in California today in a case that may have nationwide implications.

NewsHour correspondent Spencer Michels begins our coverage.

SPENCER MICHELS: Gay marriage had been before the state courts previously, but now it was before a federal judge. The issue is whether the U.S. Constitution bars states from outlawing same-sex marriage. Specifically, the case turns on Proposition 8, the California referendum that barred gay marriage and that won voter approval in November of 2008.

Outside the courthouse today, the hotly debated issue brought out a range of emotions.

Intense interest in the Proposition 8 case at federal court here in San Francisco brought demands, mostly from those who favor same-sex marriage, for television coverage of the trial. The court said it had received 140,000 e-mails, all but 32 of them favoring television transmission.

The judge said he would allow such transmission on a delayed basis on YouTube, but the U.S. Supreme Court overruled him, at least for the time being, and said they would have something more to say by Wednesday.

But the main focus is on gay marriage itself. Opponents of Prop 8 staged protests long before it passed. And gay couples say they will be watching the proceedings closely. San Franciscans John Lewis and Stuart Gaffney were plaintiffs in a previous gay marriage suit and are among those same-sex couples legally married.

JOHN LEWIS: Stuart and I have been a loving, committed couple for 23 years. We’re legally married in the state of California. But we’re not just Californians. We’re Americans, too. And we will not rest until we have the freedom and liberty that our Constitution promises us in every single state in this great nation.

SPENCER MICHELS: The judge has asked for testimony on how legalizing gay marriage might affect traditional marriage or any children involved. In turn, supporters of the ban will argue gay marriage is still a social experiment.

Andrew Pugno is one of the attorneys arguing the case for Proposition 8 and against same-sex marriage.

ANDREW PUGNO, general counsel, Protect Marriage: Fourteen million people voted on Proposition 8. And to put up one or two or three witnesses and try to characterize all of Prop-8 based on one or two people’s opinions is really not representative.

SPENCER MICHELS: San Francisco started allowing gay couples to marry in 2004. And in the rest of California, same-sex couples briefly had the right to marry until the passage of Proposition 8.

Taking the case into federal court could affect marriage laws across the country. Only five states currently recognize same-sex marriage. Thirty-six have banned it. The San Francisco trial is expected to last two to three weeks. And, whatever the outcome, the U.S. Supreme Court is ultimately expected to have the last word.

JEFFREY BROWN: Ray Suarez has more about this case and the stakes beyond.

RAY SUAREZ: Margaret Talbot has been covering this story for “The New Yorker” magazine. Her reporting on the subject appears in this week’s issue.

And, Margaret, as we just heard Spencer Michels report, the voters of California have spoken on this question. How did it get into court?

MARGARET TALBOT: Well, because two attorneys, a kind of unusual pair of attorneys, Ted Olson and David Boies, who people may remember from the Bush v. Gore case, in which they were on opposite sides, Olson a Republican, Boies a Democrat, they decided that this Proposition 8 made a good case for testing the constitutionality of these bans on same-sex marriage.

And they decided to — to mount a fairly ambitious case that they hoped would make it — and likely will make it — to the Supreme Court.

RAY SUAREZ: Now, David Boies, you might figure, but Ted Olson is an interesting person to be arguing this, making a conservative case for gay marriage?

MARGARET TALBOT: It is a surprise to a lot of people. And, in fact, initially, there was quite a bit of skepticism about it, particularly from the mainline gay rights groups, who were wondering about him as this kind of Johnny-come-lately to this issue.

I think they have been convinced of his sincerity. It’s a risky move. And I think he, from having spent some time interviewing him, I would say that he very much believes in this case. And he would argue, I think, that marriage — the Supreme Court has repeatedly held that marriage is a fundamental right.

And while they have certainly not held that it’s a fundamental right to marry someone of the same sex, I think he is going to argue that it’s an extension of that right, which the Supreme Court has repeatedly recognized.

RAY SUAREZ: You mentioned risky move. A lot of the gay civil rights organizations thought so, too and initially opposed this effort, didn’t they?

MARGARET TALBOT: They did. They thought it was premature. And they worried about it going to a Supreme Court that would not be sympathetic, and then having a setback that they would have to come back from.

And they have generally followed the policy of the strategy of going state by state, taking it slowly, trying to convince people that the sky won’t fall if, state by state, you experiment with — with — with gay marriage. And this wasn’t an incremental approach. This was a sort of, you know, going along and going for the gusto approach. And they worried. They worried about the possibilities.

RAY SUAREZ: And they just suffered two high-profile defeats in New Jersey and New York.

MARGARET TALBOT: They did. They did, and in Maine, actually, earlier, so, three — three defeats in a row. Of course, the District of Columbia, the City Council did vote to allow gay marriage in D.C.

RAY SUAREZ: Now, some of those gay rights, gay civil rights groups, came around, started to support the Boies-Olson effort in a California court, but weren’t allowed to join the suit. What was the strategy there?

MARGARET TALBOT: Yes. I think they, at a certain point, had a certainly, if you can’t beat them, join them attitude and decided that they would try to be interveners in the lawsuit as it was going forward.

And, at that point, actually, Olson and Boies were opposed to it, because they felt they wanted to run a very kind of controlled, on-message case and that this, if — if there were too many other parties involved, that it would kind of fragment their argument. And they were concerned about that. And, ultimately, the judge sided with them and didn’t allow these groups to intervene.

RAY SUAREZ: Now, the majority of states, as was mentioned earlier, have explicitly said there can be no gay marriage in this state.

What are the implications for the California case? If Proposition 8 is overturned in a courtroom in San Francisco, what does it mean to those states across the country that have passed defense of marriage acts?

MARGARET TALBOT: Well, what would likely happen is the case would be appealed, first to the Ninth Circuit and then to the Supreme Court. And if the Supreme Court were to rule in favor of Olson and Boies’ side, then you would have legalized same-sex marriage throughout the country. That’s a big if at this point, but that would be the implication, ultimately.

RAY SUAREZ: They’re counting on already starting out with how many votes on the Supreme Court, if the case indeed does get there?

MARGARET TALBOT: Well, I think that they would — the most they could hope for would be five, that they would have the four, we assume, liberal justices, and then possibly Justice Kennedy, who did write the opinion in the case Lawrence v. Texas, which was the case that overturned the remaining sodomy laws that were on the books in many states across the United States.

And he wrote a fairly sympathetic opinion towards gay rights, so some people interpret that as a sign that perhaps he might be open to considering gay marriage, even though, in general, we identify him with the conservative bloc of justices.

RAY SUAREZ: One precedent we’re likely to hear a lot about is Loving vs. Virginia, which struck down bans against people of different races marrying. Why is that germane in this case?

MARGARET TALBOT: Well, for a couple of reasons. Yes, that was in 1967. It’s a landmark case.

And — well, for one thing, what’s interesting is that more people who were polled at that time, more Americans, were opposed to interracial marriage than are opposed to gay marriage today, which is interesting, because one of the questions about this case is, is this pushing the court to get out too far ahead of where public opinion is?

So, if you look at just the numbers in polls, you — you actually see that more people are in favor of gay marriage today. But then you have the state-by-state — you look at the state-by-state picture, and we do now have these nearly 40 states that have passed these amendments against gay marriage, whereas, at the time of Loving vs. Virginia, there were only 15 or 16 states, almost all in the South, that still had these old anti-miscegenation, as they called them, laws on the books.

So, you can kind of use — use that precedent or example either way, depending on whether you want to be hopeful about this case or more pessimistic.

RAY SUAREZ: And, quickly, before we go, who is the — the petitioner, the Miranda, the Roe? Who is the case built around who’s the person that they’re going to court in favor of?


Well, there are two couples who are plaintiffs in this case. One is a female couple who live in Berkeley and have four children. And the other male couple who are from Southern California. And, you know, they have decided they’re willing to be the public face of this case that is controversial and may take several years to unfold, but they are — they are definitely willing — willing plaintiffs.

RAY SUAREZ: Margaret Talbot of “The New Yorker,” thanks for joining us.