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Will Prop. 8 Ruling Lead Supreme Court to Consider Same-Sex Marriage?

February 7, 2012 at 12:00 AM EDT
A federal appeals court ruled 2-1 Tuesday against banning same-sex marriage in California, upholding a lower court's ruling. Spencer Michels reports and Gwen Ifill discusses the decision and the next steps with David Boies of the American Foundation for Equal Rights and John Eastman of the National Organization for Marriage.

GWEN IFILL: A three-judge federal appeals panel ruled 2-1 today against banning same-sex marriage in California. The decision upheld a lower court that found the ban, known as Proposition 8, violates the Constitution’s equal protection clause.

NewsHour correspondent Spencer Michels begins our coverage from San Francisco.

SPENCER MICHELS: It was another victory for supporters of same-sex marriage in California. And they celebrated outside the federal courthouse in San Francisco.

Opponents of Prop 8, Felicia Madriz and Allison Spencer, said the appeals court decision was important.

FELICIA MADRIZ, opponent of Proposition 8: Absolutely. You know, this is one more step to equal rights. And hopefully, federally, it will be recognized.

ALLISON SPENCER, opponent of Proposition 8: We’re really excited and emotionally moved, obviously. And, hopefully, this’ll put the nail in there.

SPENCER MICHELS: On the other hand, backers of Proposition 8 insisted the fight is not over. In a statement, the National Organization for Marriage called the decision predictable, as well as sweeping and wrong-headed. But it also said, “We have every confidence we will prevail.”

Nearly everyone agrees that the Prop 8 case will eventually end up before the United States Supreme Court on appeal. But before that happens, the losers in this case, those supporting Proposition 8, could ask for a hearing before a 10-judge panel, a so-called en banc hearing.

The Prop 8 battle goes back to November 2008, when California voters passed it with 52 percent of the vote. The ballot measure banned same-sex marriage, just five months after the state Supreme Court had allowed it under then-existing law.

But in August of 2010, federal Judge Vaughn Walker struck down the ban. He ruled that gays and lesbians have a constitutional right to marry. Later, the judge announced he is gay and in a long-term relationship. Lawyers supporting Prop 8 argued he should have disclosed his relationship or recused himself.

The appeals court said today there was no evidence that Walker was biased in his handling of the case. In the meantime, other states are tackling the gay marriage issue this election year. Those with pending legislation or ballot measures in 2012 include Washington State, Minnesota, North Carolina, Maryland, New Jersey, New Hampshire and Maine.

They and others will be watching to see the ultimate outcome in the California legal battle.

GWEN IFILL: Today’s ruling is limited to California, but in a 128-page opinion, the federal panel emphasized the broader constitutional principle.

Judge Stephen Reinhardt, writing for the majority, concluded, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”

We get two views now of the decision and its fallout. David Boies is one of the attorneys for the American Foundation for Equal Rights, which supports same-sex marriage. And John Eastman is chairman of the board of the National Organization for Marriage, which argues same-sex marriage is not protected under the Constitution.

I want to start by asking — reading to both of you gentlemen something else from the court’s decision today and ask you to respond.

The court also said that California used the initiative power to target a minority group and withdraw a right that it possessed without a legitimate reason for doing so.

Pretty tough language, David Boies.

DAVID BOIES, attorney for the American Foundation for Equal Rights: It was very tough language.

This was a great day for America, a great day for California in particular, but a great day for America and everybody who believes in equal rights. What the Ninth Circuit said was, the court of appeals said is that we’re not going to tolerate any longer governmental discrimination against our gay and lesbian citizens.

And they said it in very emphatic terms. And although the decision is, as you say, technically limited to California, the principles that it articulates mean that eventually we’re going to have marriage equality throughout the United States. And people need to get into the 20th century, if not the 21st century, and recognize that that kind of discrimination is over with.

GWEN IFILL: John Eastman, what’s your reaction to the strong language in this ruling?

JOHN EASTMAN, National Organization for Marriage: Well, Judge Reinhardt has staked an awful lot on this opinion in trying to compare this to Colorado’s Amendment 2, and saying that this initiative did absolutely nothing except remove a longstanding right for gays and lesbians to marry.

Of course, it wasn’t longstanding. The California Supreme Court had made that up just several months earlier. And Proposition 8 is not so limited. It applies to one man and one woman. That means plural marriages are also illegal under Proposition 8 in California.

So, the notion that the only purpose of this was animus towards gay and lesbians is just patently false on the face of Proposition 8 itself. The basic notion here is, do the people of the state have any right to continue to defend marriage as it has always been understood, tied to the biological complementarity of the sexes, with at least a purpose of procreation and the rearing of children that are the offspring of that relationship?

To say that there is no legitimate purpose and that it’s completely unreasonable to adhere to something that has been around in every society and certainly in our country since the beginning, I think, is a great stretch.

And Judge Reinhardt has staked the entire decision on that claim, which is just patently false.

GWEN IFILL: Well, let me ask Mr. Boies about the narrow scope of this ruling. Certainly, you were hoping more than just something that affects only California.

DAVID BOIES: Well, we think the reasoning of the court does.

And let me just respond to the suggestion that somehow Proposition 8 was not — involved just gay and lesbian marriage, but somehow is against plural marriage. No one has ever suggested that. And to begin to try to defend Proposition 8 on the grounds that it’s really directed at polygamy at this stage of the debate I think just shows desperation.

That’s not what the proposition was about. It was clearly targeted at gay and lesbian marriage. That’s what all the advertisements were about. That’s what all the publications were about. And that’s what the court held was simply unconstitutional.

And they held it because the evidence was absolutely uncontradicted that this didn’t help procreation, it didn’t help different-sex marriage. There was no justification for this. As the court said, in order to believe that this served a rational purpose of procreation, you would have to believe that people are going to procreate more if you don’t have gay marriage.

And they said that’s simply not plausible. There isn’t evidence of that, and no one suggested that.

GWEN IFILL: Let me ask Mr. Eastman about this rational basis test which the courts applied in this case, in which they said what Mr. — a version of what Mr. Boies just said, which is that there was no rational basis to impinge on someone’s 14th Amendment rights.

JOHN EASTMAN: Well, the rational basis is the lowest standard of review we have in constitutional law.

It basically means is, if there’s any legitimate purpose furthered by the classification that supports some interest of government, the enactment of the legislature, or in this case an initiative of the people, has to be upheld.

And the notion that — we recognize, for example, that men and women procreate in a way that two men do not and two women do not. To create an institution that fosters that purpose and to give it the benefits of society because there’s some benefit to society from fostering that purpose clearly passes the rational basis test. And it just belies reality and biology to suggest otherwise.

GWEN IFILL: Are you, Mr. Eastman, going to take this to the Supreme Court?

JOHN EASTMAN: Well, I’m not representing the proponents of the initiative.

But I think one of the things that all of the judges here agreed with that is the proponents do have the right to appeal to the Supreme Court. And I suspect they will. I think David and I would agree that it’s a close call up at the Supreme Court. Most people think it’s a 5-4 decision one way or the other, with Justice Kennedy likely the swing vote. And I think we all expect we’re going to end there sooner or later.

GWEN IFILL: Do you agree on that, Mr. Boies?

DAVID BOIES: I think we’re going to do better than 5-4 on the Supreme Court.

I think that this is an issue that, that under the Romer decision, particularly given the careful way and the limited way that the court crafted this opinion, that it is four-square under Romer. I don’t think the Supreme Court is going to go backward on this issue. I think it’s going to go forward.

And I’m not giving up on any justice on this issue. And I think it’s definitely going to be better than a 5-4 in our favor.

GWEN IFILL: And, finally, to both of you, do we think that this decision today now means, starting with you, Mr. Eastman, that there is going to be weddings that are about to happen, that the stay is now lifted and couples can marry?

JOHN EASTMAN: You know, I haven’t gotten to the last few pages of the 90-page majority opinion yet, but I understand that their stay remains in effect until the Supreme Court has a chance to decide whether they’re going to take this case, in which case, we won’t have any change in the landscape in California in the short term.

But I’d like to ask David if he would like to wager a dinner next time we’re together on a panel if the vote is 5-4 my direction or even only 5-4 his direction.

GWEN IFILL: He can answer that right after he answers my question.

JOHN EASTMAN: I will wager you that dinner.

GWEN IFILL: Okay. That’s fine. And we settled that.

What do you think about a stay? Are people going to actually be able to get married before this thing works itself out?

DAVID BOIES: What the court did was continue the stay until its mandate issues.

Now, that mandate is going to issue at some point. And if it’s delayed because the proponents of the proposition seek to have, for example, a rehearing, we will go in and move to have that stay terminated.

You now have a thoughtful and comprehensive district court opinion holding Proposition 8 as unconstitutional. You now have a Ninth Circuit court of appeals decision holding that it’s unconstitutional. It’s time to allow people to get married in California.

GWEN IFILL: And would that create any chaos at all if perhaps, for some reason, the court were to reverse itself again?

DAVID BOIES: Well, remember, you had people getting married before Proposition 8 took place. That didn’t create any chaos. There’s no reason that people ought to be deprived of their constitutional rights now that those rights have been affirmed by the court of appeals. It’s not going to create any chaos.

GWEN IFILL: Mr. Eastman?

JOHN EASTMAN: The reason would be the — the reason would be the right of the people to decide for themselves a very fundamental policy question about whether we’re going to continue to have an institution of marriage that is rooted in biology, with a purpose of procreation, as it always has been, or whether we’re going to allow the courts to mandate a dramatic alteration of that institution, with potentially devastating consequences to society.

So, it’s the right of the voters of the people of the state of California to have their judgment about the basic policy question at issue here affirmed. And if the Supreme Court takes this up, I believe the Supreme Court would issue a stay until they have an opportunity to rule on that.

GWEN IFILL: John Eastman, David Boies, thank you both very much.

DAVID BOIES: Thank you.

JOHN EASTMAN: Thank you, Gwen.

DAVID BOIES: Thank you.