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How Does Court’s Decisions on Gay Marriage Impact State and U.S. Law?

June 26, 2013 at 12:00 AM EDT
What are the legal implications of the Supreme Court's decisions on the Defense of Marriage Act and California's Proposition 8? Jeffrey Brown gets two views on the impact of the court's rulings from Austin Nimocks of the Alliance Defending Freedom and Mary Bonauto of Gay and Lesbian Advocates and Defenders.
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TRANSCRIPT

JEFFREY BROWN: And we return to the major developments at the court today with a look at the legal implications for the same-sex marriage rulings.

For that, we are joined by Mary Bonauto, special counsel for the group Gay and Lesbian Advocates and Defenders. She has litigated cases against the Defense of Marriage Act. And Austin Nimocks, senior counsel for the Alliance Defending Freedom, a conservative Christian legal organization, he was co-counsel for the supporters of Proposition 8 this year.

And welcome to both of you.

MARY BONAUTO, Special Counsel, Gay and Lesbian Advocates and Defenders: Thank you.

AUSTIN NIMOCKS, Alliance Defending Freedom: Thank you.

JEFFREY BROWN: Mary Bonauto, let me start with you.

Taken together, how much of an endorsement of gay marriage do you read into these decisions today?

MARY BONAUTO: I read some. And I say that because, with respect to DOMA, we are now replacing a system that officially disrespected the legal marriages of same-sex couples for over 1,000 federal purposes and replacing it with federal respect for those marriages.

So that’s obviously an important endorsement. The opinion couldn’t have been clearer that this law saying that only marriages of same-sex couples would be disrespected demeaned the relationships, that the states had meant to confer dignity and respect, and DOMA was taking that away and hurting people. And it does hurt people when they can’t get a family policy of health insurance or file their taxes jointly.

But it also hurts much more in the way that the court really picked up in terms of saying, this was really a way of saying gay people and their families are unworthy.

JEFFREY BROWN: Same question to you. I want to get this general proposition and then we will walk through some of the details. What would you — how broad a reading do you make of today?

AUSTIN NIMOCKS: I think if any endorsement can be taken from today’s decisions, it’s an endorsement of the right of the states to continue to debate and decide the question of marriage.

I mean, striking down DOMA, the Supreme Court said that we need to defer to the states that have traditionally had the province here. And so what we know is that this issue is going to continue to be debated and decided by people at the state level with their state representatives and their state provisions for dealing with these questions.

And so the question now goes from the Supreme Court back to the people in their various states.

JEFFREY BROWN: But, on DOMA itself, you’re not seeing the kind of sweeping decision that Mary Bonauto is saying? You’re saying this just send it to states again?

AUSTIN NIMOCKS: Oh, the Supreme Court clearly struck down DOMA.

And the reason that the Supreme Court said they’re striking it down is because the federal government has traditionally deferred to the states. And so if a state declares somebody as being married, the federal government needs to recognize that. So it really re-centralizes power for the definition of marriage to the states. And that’s where we see it going back.

JEFFREY BROWN: Where do you think it leaves things?

MARY BONAUTO: I have to say, I think that’s a slight over-reading here, because the court noted that states traditionally say what a — if somebody’s married or not.

And it was extremely unusual — in fact, it’s the first time ever in history that the federal government has stepped in and wiped out a class of marriages. That is what was unusual. But the court couldn’t have been clearer that, while states regulate marriage, they’re subject to the Constitution. And that’s why I think the issue will be back at the court probably in short order, because if there’s a fundamental right to marry — and the court has said so 14 times — the question remains, why is it that that fundamental freedom is being denied to committed, loving gay and lesbian couples?

JEFFREY BROWN: We heard from Gwen and — Gwen and Marcia talking about the fact that the court didn’t rule on whether there is a constitutional right to gay marriage. Was that a disappointment? Did you want it to go that far?

MARY BONAUTO: Well, in the DOMA situation, that was specifically not at issue.

JEFFREY BROWN: Right.

MARY BONAUTO: It was about DOMA itself.

JEFFREY BROWN: Right.

MARY BONAUTO: And I — and then with respect to the Proposition 8 issue, you know, if the court had gone in that direction, so be it. But I think the handwriting was on the wall that the state itself had not appealed in California. The proper parties were not in front of the court. So, to me, it’s a great victory that marriage is being restored to California.

JEFFREY BROWN: How do you read the Proposition 8 decision, one you were very much a part of?

AUSTIN NIMOCKS: Well, we were disappointed that the Supreme Court determined that we didn’t have standing to defend Proposition 8. But, ultimately, our opponents didn’t file that lawsuit to prove that we don’t have standing.

They filed the lawsuit in order to impose a 50-state same-sex marriage solution on the entire country. And, ultimately, they were unsuccessful. The Ninth Circuit’s opinion striking down Proposition 8 was vacated, and sends it back to California. And we’re very happy about that, that the Supreme Court didn’t act with a heavy hand. And that’s what we have been saying all along.

The Supreme Court doesn’t need to act with a heavy hand here. It needs to take a more muted approach, and not try to resolve this for the entire country.

JEFFREY BROWN: Is it clear in your mind where this leaves things in California? Does it, in fact, open the door for gay marriages to go forward?

AUSTIN NIMOCKS: Yes, it’s really not clear at all at this juncture exactly what type of legal circumstance remains in California.

And there’s a 25-day window that will be considered in terms of what happens now, what goes forward, because there is no appellate court decision holding Proposition 8 unconstitutional, and so it’s a legitimate question. We’re still looking at the opinions. Other legal scholars are looking at the opinions. And we will see coming forward what may happen with all that.

JEFFREY BROWN: Have you had a chance to look at that?

MARY BONAUTO: Yes.

My sense is that marriage is going to happen statewide in California. The registrar of California was a defendant in that case, and is directed to control the county officials who control marriage licenses. And so I have been through some of this, where people try to restrict a ruling and so on, but I suspect we’re going to have marriage in California in a little over a month.

JEFFREY BROWN: Are you suggesting that there will be legal — some kind of legal action in the next 20 days or month?

AUSTIN NIMOCKS: It’s certainly possible. What we don’t have right now is a lot of clarity with regard to it.

And so I know that, you know, the two big Supreme Court opinions with all the things they have said is a lot to digest in a few hours. But I think in the days coming, there will be more clarity as far as that’s concerned.

JEFFREY BROWN: What about in — I just want to think about where things go next. What about in states that just have civil union right now? Is there anything out of today’s action that might have an impact for those states?

MARY BONAUTO: Modestly, yes.

JEFFREY BROWN: Modestly?

MARY BONAUTO: For the most part, it’s — the federal government has a system that is based on marriage. That’s the primary relationship that it respects, although it does also respect some other relationships.

And there are some programs that, again, when you delve down into the details, where the statutes are clear that if you have certain obligations to one another, certain rights, under state law, you would be protected. So, there will be some …

JEFFREY BROWN: Where the legal reasoning from these cases might apply in those cases?

MARY BONAUTO: Yes. Yes.

JEFFREY BROWN: Do you see that possibility?

AUSTIN NIMOCKS: I don’t really see that as a possibility, just because the Proposition 8 decision from the district court was so, so specific as to the state of California. And every state has come about its laws in completely different ways.

Some states have marriage laws that were enacted by the legislature, others voted on by the citizenry. And so I don’t see a lot of transportable precedent as far as that is concerned. But what we can agree on is that the states are going to have the right to continue to deal with marriage through their democratic processes, and I think that’s the most important takeaway.

JEFFREY BROWN: Well, so is that where — I’m sorry. Go ahead.

MARY BONAUTO: Yes, that is all true.

And it’s a debate that obviously has been — our country has been engaged in at every level.

JEFFREY BROWN: Yes.

MARY BONAUTO: And that’s a terrific thing.

At the same time, the court is clear that every state law is, of course, subject to our constitutional guarantees. That’s why, you know, Virginia’s anti-miscegenation law had to fall when it did is, ultimately, the court is the one to say if a state, in enacting its marriage law, has drawn the wrong line.

JEFFREY BROWN: Well, so where do you see the fight going next? Is it a legal — a lot of legal battles? Are they political battles? Is it still a mix of both, as we have seen for many years?

MARY BONAUTO: I think it’s a mix of both, but I do have to say that I think this issue will return to the court. I think you’re going to have states where this debate continues. I think you’re going to have states going back to the ballot to repeal some of those hastily enacted constitutional bans.

I think you’re going to have state court decisions, and there are a number of federal court cases already pending.

JEFFREY BROWN: When you say return to the court, do you mean the Supreme Court, because that’s what we were just talking about?

MARY BONAUTO: I mean that court, yes.

JEFFREY BROWN: That court, yes.

MARY BONAUTO: Yes.

JEFFREY BROWN: What do you think about the prospects of that?

AUSTIN NIMOCKS: Oh, I agree with Mary that the process is going to continue, probably some court — courtroom of public opinion and whatnot.

And we can agree on that I think the marriage debate will continue in this country. The Supreme Court didn’t settle it, nor did it really try to settle it in its entirety. And so there’s going to be a mix of different things happening. But Americans who are — as Justice Scalia noted today — deeply invested in this issue are going to continue to voice their opinions.

JEFFREY BROWN: All right, Austin Nimocks, Mary Bonauto, thank you both very much.

AUSTIN NIMOCKS: Thank you.

MARY BONAUTO: Thank you.

JEFFREY BROWN: And, online, just what are the benefits that legally married gay couples will now be able to receive? We have a list of some of those on our home page. And we have more reaction from California from the NewsHour’s Spencer Michels’ coverage at San Francisco City Hall this morning.