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Attorneys Debate Constitutionality, Legal Standing on Prop 8 Case

As the Supreme Court considers arguments on the definition of marriage, and the legal and societal implications of same-sex marriage, Gwen Ifill moderates a debate between California Attorney General Kamala Harris and Austin Nimocks from the Alliance Defending Freedom, two attorneys who were present in the courtroom.

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    We return to today's same-sex marriage debate with one of our own, featuring two attorneys who were at the court today, California Attorney General Kamala Harris, who supports overturning the gay marriage ban, and Austin Nimocks, counsel for the Alliance Defending Freedom, which supports Proposition 8.

    Thank you both for joining us.

    I want to start by asking you both this question.

    Why is the right to marry or same-sex marriage considered to be a constitutional issue, and not a social one, Attorney General Harris?


    Well, first of all, the United States Supreme Court since 1880 has described marriage as a fundamental right.

    So, what we know is that it is based on some very fundamental notions that we — around which we crafted our Constitution and our country, the fundamental notion of justice, of privacy, and of equality. And the discussion then before the court was rightly before the court to discuss the issue of same-sex marriage in the context of those 14 cases over a century of discussion about what is fundamental, what is most sacred of the rights that we have, and therefore shouldn't be taken away and therefore shouldn't be deprived to any citizen.


    Mr. Nimocks?

  • AUSTIN NIMOCKS, Alliance Defending Freedom:

    Well, I think when you look at the history of the Supreme Court and the precedent about marriage, it's been very clear that the Supreme Court is always talking about marriage as the union of one man and one woman.

    And all of that precedent led up to a case in the '70s where the Supreme Court rejected a claim for same-sex marriage. So all of the history of the Supreme Court precedent is really about marriage between one man and one woman. And the case before the court today was whether or not same-sex marriage must be imposed upon the entire country.

    We have been arguing consistently to the Supreme Court and to other courts across this country that that shouldn't be the case, and we need to leave this debate that we're having as a country over same-sex marriage in the hands of the people.


    Let's talk about some of the commentary that came up today, the conversation among the justices.

    Justice Kennedy was talking about that this was too new, that maybe this was a cliff we were walking off, that this is — that same-sex marriage is a virtually new idea. It's younger than the Internet, he said. And, therefore, maybe the Supreme Court shouldn't be jumping into this and maybe it might not even have standing to do so.

    What was your reaction to that?


    I think that it — that when we are discussing this issue, we should discuss it in the context perhaps of what is new to the court vs. what is new to the fundamental principles in our Constitution.

    And it is not a new concept to us as a country and it is not a new concept to our Constitution that we have described marriage as a fundamental right. And so the issue before the court in this case, which is whether Ms. Perry can marry her partner of 16 years with whom she shares a child, and whether she and other same-sex couples will be treated equally under the law as opposite-sex couples is — really relates to fundamental notions about equality and liberty.


    Austin Nimocks, are we talking about unchartered waters, as the justice was saying?


    They are exactly unchartered waters, as Justice Kennedy remarked today.

    And it really goes to the newness of the debate we're having in this country over marriage, its meaning, its importance to our society and children. Same-sex marriage is a very new concept, and newer, as Justice Alito said, than Internet or cell phones.

    And so it really highlights the role of the court. The Supreme Court is not a legislature. It's not designed to be a legislature. And justices expressed reservations about the capacity of the court to answer this difficult question over this very important debate.

    That's why we have ballot boxes. That's why we have legislatures, to deal with these important issues so we can have the debates, see how things go over the course of time. And that's all we're asking the Supreme Court to do.


    Well, let me ask you …


    We don't need a 50-state mandate on same-sex marriage in this country. We need to leave it to the hands of the people.


    Well, do you reject the point that Justice Ginsburg, I guess, made today comparing this to the Loving v. Virginia case, which allowed interracial marriage in Virginia? Do you not see any parallel to that?


    Not at all.

    When the Supreme Court decided the Loving case, it made very clear that marriage is colorblind, but it's not gender-blind, because it said in that case that marriage is very fundamental to our very existence and survival, talking about the procreative aspects of marriage as being between one man and one woman.

    And Justice Kennedy even seemed to reject that notion during the course of the argument today. And so we have been very consistent on that argument. The gender concept of marriage between a man and a woman is the very core of marriage. And to radically redefine it through a 50-state mandate, which is what our opponents are asking in this case, we don't think is in the best interest of America or does it respect our democratic institutions.

    We have those institutions for a reason, so that he people can use them. The people of California have used them twice, voting for marriage twice in a nine-year period. And I think we need to respect those votes and the votes across the country.


    Kamala Harris, as the chief legal officer in the state of California that has voted on this twice, what about that argument about procreation especially?


    Well, I think it's actually a very weak argument to suggest that the only — that the difference between same-sex couples and opposite-sex couples is accidental procreation. That's literally what they argue.

    And to argue that that distinction and that should be the basis for treating people differently under the Constitution, and in particular treating people differently as it relates to a fundamental right, I think it just makes an extremely weak argument.

    On the point of California, 61 percent of Californians today believe in same-sex marriage. The majority of Americans believe in same-sex marriage. The majority of Catholics believe in same-sex marriage and are not opposed to it.

    And so when we look at the issue in terms of where America is, I think America is consistent with fundamental notions of justice as articulated in the Constitution. I think we also need to look at the fact that, in California today, we have 50,000 children who are the children of these same-sex couples, who are looking at their parents and looking at us as a society and saying, why can't my parents be married too?


    Let me ask Austin Nimocks about that, because Justice Kennedy mentioned that as well, this question about what happens to the children.

    What would your answer to that be?


    Well, I don't think I can really improve upon Mr. Cooper's answer today during oral argument that our opponent's own experts even acknowledge that there's no proof in the record that adding same-sex couples to the institution of marriage dramatically increases their lives or the lives of their children.

    And so it just really goes back to the point then is whether or not Californians and Americans across this country are allowed to protect and preserve something that's always been constitutional, and that's the institution of marriage, believe in the idea that mothers and fathers are not merely accessories to the family, but important components to the family, and uphold that ideal in our public policy.

    Americans across this country, tens of millions, have voted in favor of marriage. I think those votes and the opinions of Americans in that regard are very important. Gen. Harris mentions — makes a good point. We're having a debate. There are polls out there. We need to keep the debate alive. I agree with her. And we need to keep the debates where debates belong, and that's in our legislative processes and our democratic institutions.


    If this were not to be taken up by the court, they were either to reject it or to only uphold part of it or reject part of it, could the people of California repeal this ban? Would it withstand that?


    Well, the issue before the court included the constitutionality of same-sex marriage, but it also included the issue of standing, and in particular in the case before the court, the question of whether Mr. Hollingsworth, who is a proponent of Proposition 8, has standing to bring the case.

    And Article Three in the Constitution, as your previous segment discussed, requires that the person who brings the issue to the court shows that they actually have a personal stake in the outcome. And part of our position is that Mr. Hollingsworth's life will not be impacted in any direct way. There will be no harm to his life to allow Ms. Perry to marry her partner.

    And, for that reason, if the court agrees with that, it is possible that the court could send the case back to California, declaring that Mr. Hollingsworth has no standing, so the case shouldn't rightly be before the court.


    And, briefly, Mr. Nimocks, this public opinion question, is this something that in the end is going to change the direction, do you think, of this argument, no matter what the court does, briefly?


    I think you bring up a good point.

    I think no matter what the Supreme Court does, Americans are going to continue to debate this question. The Supreme Court can no more settle the question of marriage than it did settle the question of abortion in this country. And that's I think all the more reason why we need to keep the debate where it is.

    Californians have the right, right now, to go back to the ballot box, go back to the polls to enact any number of constitutional amendments that they want to, to their Constitution, to enact any number of propositions. We don't need to squelch that democratic process with a 50-state mandate from the Supreme Court.

    And that's what we're asking the Supreme Court, not to rule with a heavy hand here. Let the people work on this issue.


    Austin Nimocks of Alliance Defending Freedom and Kamala Harris, attorney general for the state of California, thank you both very much.


    Thank you.


    And we will have full coverage of tomorrow's case, a challenge to the federal Defense of Marriage Act.