Get Used to It: Ep. 162, "Prop 8: Winding Through the Courts"

(upbeat music) - Hi, welcome to Get Used to It, I'm Sheila Kuehl and I will take you through the murky waters of everything we talk about today as your guide and hostess. Hope that you'll be with us for the hour, because this is the show you've been waiting for, everything explained about California's Proposition 8. Is it on, is it off? Is it in the court? Is it going to another court? What happened with the opinion? Everything you want to know. Well, minus one or two things and you can write us. And today I have two wonderful guests to take us through this fun explanation. My first guest is Jenny Pizer, who is Senior Council and Director of the Marriage Policy Program at Lambda Legal. Welcome, Jenny. - Nice too be here, thank you. - I almost got that right. (laughs) - Marriage Policy Director? - Marriage Project Director. - Marriage Project Director, I knew it was with a P. Anyway, very impressive credentials, I'd say. My other guest is Sky Johnson, who is Senior Policy Council at the LA Gay and Lesbian Center. Welcome Sky. - Thank you, great to be here again. - Okay, Jenny, let's start with you, the lawyer. Proposition 8, when it passed in California, went to the California Supreme Court and the California Supreme Court said, "Yes, under all the rules in California, the people can vote on an initiative, and it was done okay, and it is the law." 18,000 couples had gotten married in the meantime, the Supreme Court in California said, "Well, those marriages are okay because we hadn't made our decision about it yet, and we had made a decision that you should be able to marry in California if you are going to be equal." So there was Prop 8. An appeal, or... no, a case was then filed about Prop 8 in federal court. Now, can you explain why and what, and how are we okay in federal court? It's a state law. - Yeah well, I must say as a starting place, it's incredibly fun for lawyers who are interested in Civil Rights law and the LGBT movement to have everybody interested in understanding legal procedure. (Sheila laughs) It's incredibly exciting for us. - [Sky] And rare. - And too rare. - [Sheila] Very rare is right. (laughs) - And perhaps this show will reveal to people how incredibly exciting civil procedure actually is. - And fun, we're gonna laugh at least once every four minutes. - So the idea is that in this country, we have state court systems and they usually hear... state law usually governs family law, which marriage is and issues about children and duties of spouses, and federal law usually has to do with things like relations between the states and laws that Congress passes. But, the 14th Amendment to the US Constitution imposes limits on states. This was one of the three constitutional amendments that was passed after the Civil War. - Right, not one of the first 10 that everybody calls the Bill of Rights. - Exactly, not the Bill of Rights. Now, the Bill of Rights is primarily about putting limits on the federal government, and there are important limits on the federal government. Some people think there should be more stringent limits on the federal government, (Sheila laughs) but the Bill of Rights was about containing the power of the federal government and reserving power to the states and the people, the post-Civil War amendments were about imposing some limits on the states, because it had come to people's attention that states- - Maybe (indistinct) keeping people from voting, for instance. - For example, we're not treating people fairly, so the 14th Amendment has two provisions that are relevant here, particularly relevant, the Equal Protection guarantee, and the Due Process guarantee. The Due Process guarantee says that no state shall deprive a person of life, liberty, or property without Due Process of law, and we're focused here on liberty, of understanding through federal court litigation, what that guarantees us as free people. Liberty, it's freedom. So there has to be appropriate legal protection for us so we can be free, and also, the states may not deprive us of the Equal Protection of the laws. So litigation in Federal court challenging Prop 8, which was a case filed actually, just before the California Supreme Court issued its decision about Prop 8, saying, "Hey, if the California Supreme Court says that measure was passed in compliance with the state procedural rules," which sadly, and we disagree, but the California Supreme Court said it was okay, it nonetheless has to comply with Federal law and specifically the guarantee that no state should treat people unequally or deprive us of liberty. - And the thing that would be a boon to us, the thinking was, is if the federal court should somehow say that Prop 8 does not pass the test of Equal Protection or Due Process or both, then it would be a nullity, it would not be enforced in the state, and we would go back to the original California Supreme Court decision of earlier in that year that said, you can't deny us the right to marry, right? - That's right. And the Federal courts and the US Supreme Court as the ultimate decider of what the Federal Constitution requires, doesn't usually get into questions of state family law, but some of the most important decisions in our nation's history have been where the federal government said a state, in the family law area, was treating people unequally, so among the important legal precedents here, that we talk about a lot in our movement for family equality, for same-sex couples, was the US Supreme Court saying that states cannot restrict marriage based on race. - Loving versus Virginia - Loving versus Virginia, one of the best named cases. - I know (indistinct) Loving, you couldn't have written that as a movie script. - Yeah, so this litigation in federal court makes arguments that echo the arguments made in the cases about whether states can restrict marriage based on race, but the case also makes arguments drawn from the very important, but not very numerous decisions from the US Supreme Court about what the Federal Constitution requires about treatment of gay people, or same-sex couples in particular, in terms of ensuring that we have the same freedom to live our personal lives as heterosexuals do. That's the Lawrence v. Texas case decided in 2003, that states cannot allow the police to come into your bedroom to decide whether they like the way you're having an intimate relationship with the other half. And the Romer versus Evans case, which was about Colorado's anti-gay initiative passed in the '90s that violated Equal Protection by saying that some people in Colorado can have full anti-discrimination protections, but gay people have a more limited range of anti-discrimination protections. - Now, there were also some legal stars who had not been engaged in the long and wonderful work that for instance, Lambda has done, that were, I don't know, enticed or at least made interested, and... Tell us a little bit about the two attorneys, and then I wanna ask you Sky, how people were looking at this when it was filed. - Yeah, I mean, I think among the most fascinating aspects of this Prop 8 litigation has been that it was brought by two national legal stars, most famously opposing each other in the Bush v. Gore case- - One on Bush's side, one on Gore's side. - Exactly, Ted Olson and David Boies. I sometimes say, I think they are the most famous same-sex couple in the gay rights movement at this time, but their decision that Prop 8 is appalling, and clearly violates people's rights, and that it's a cause that they decided that they want to participate in, it's been particularly, I think, publicly compelling that Ted Olson has taken up this cause because he's been one of the standard bearers for the conservative right in this country. He has litigated many cases on the other side of Civil Rights issues, but he describes himself as somebody who has Libertarian views and that he thinks everyone should have a right to marry. It's a right he is cherished in his own life. And because he is perhaps an unexpected spokesperson on this issue... well, not just spokesperson, he's litigated this case with great vigor and talent, I think it's prompted lots of people to rethink and to understand what some people in our own community have said frequently and I think with obvious accuracy, that marriage in many ways is a conservative institution. So it's actually not that odd for a conservative voice to champion the idea that everybody who wants to get married should be able to get married and the people should be able to marry the person they love, not the person that Big Brother government tells them they should marry. - Well, so here we are Sky with these two legal stars. Early on, did you get a sense that people were feeling confident about it, ambivalent about bringing this to Federal Court with not being sure about the Supreme Court, not just at the center, but around in the community. Did you get a sense of what people's hopes and fears might be? - Well, there was an awful lot of anxiety about bringing a case that might eventually go to the current US Supreme Court. People feel very strongly about the rightness of the cause, but they also recognize the ideological balance of the current Supreme Court is not particularly propitious, or at least would not seem to be that way. In fact, I saw couple of surveys and I think probably Jenny have seen them too, that four of the five most conservative justices of the last 50 years are on the court right now. So there was a lot of concern, a lot of... well, a lot of conversation about whether this is the right time to bring it or not. And going back to Olson and Boies, there was a good deal of skepticism when Ted Olson's name was first associated with this case because people knew him for his long record as a conservative stalwart solicitor general for Republican administrations, the guy that paved the way for George Bush to get in the White House. So there was an awful lot of concern about that. Subsequently, Ted Olson in particular, has really changed people's minds. His clear commitment to this cause, his consistent, not only to the legal work which he's done, but his willingness to go on television anywhere and everywhere to talk about this. And he's been all over the media and in a lot of venues where our regular lawyers might not be received well. I mean, he's friends with people on the Supreme Court, he's well known in conservative circles, he was on Fox News a couple of weekends ago for 13 minutes in a very compelling presentation. I don't know if you saw that or not Jenny, but it was all over the internet. I don't watch Fox News myself, (Sheila laughs) but- - But we can catch it on the internet, it's okay. - We can catch it on the internet and his message isn't much different from the message that all of us have been putting out for a long time, but it's the messenger that's made a tremendous difference in this case in terms of generating national conversation about this, it's been one of the key assets so far. - Well, and also it was interesting because we did a show about the trial itself and the presentation of evidence already. So I'm not going to cover that again, but one of the concerns that people had about Judge Walker, who was the district court judge hearing this case, was that he had decided that we could not broadcast the presentation of the evidence at the trial court level, so people thought that that might mean something about him. Although, in the law, everything is so compartmentalized. You decide this question. The California Supreme Court can say, "Yes, you deserve all the rights in the world," oh, but people can take them away from you, and in a way you could argue that they were right on both of them, at least people did. I didn't agree, but... But there was a very interesting response from the community about this thing not being televised. And that really went to blogging, a reenactment of the daily presentation of evidence. Did you see any of that happening or be in contact with people who made the decision to do it because- - Oh, sure. - It seemed like a real, almost grassrootsy kind of thing. - Well, I mean people, obviously keen interest in this trial. I mean, Judge Walker I think was on our side in favor of the broadcast, but we was overruled eventually by the US Supreme Court. They went up there and they, by a five to four vote, said that that shouldn't be broadcast. But when that Supreme Court decision came down, there were a number of folks who talked. Well, Rick Jacobs of the Courage Campaign in particular, they did live blogging there and have been involved in the reenactments and hundreds of thousands of people have taken advantage of that opportunity. Which is a wonderful thing, because actually, the people who react adversely to this hearing the decision without knowing any of the background and the ones who are inclined to say, "Well, how can one judge," blah, blah, blah, haven't had the benefit of actually looking at the record of the trial, and anybody who's been exposed to any of that, whose mind isn't totally closed, couldn't help but come to the exactly same decision on this case. So, the live blogging was a key. - Well, and I was just gonna add, I think part of what Ted Olson's involvement has caused is a lot of people who felt they had made up their mind on this issue, and certainly lots of people in lots of states, appallingly enough have voted on it, which is an atrocious system of having majorities vote about whether minorities should have the same rights. But it is critical for us, as a movement, to now have triggers that prompt people to rethink. And I do think an unexpected messenger who, by the surprising alignment of a conservative with marriage equality means the media finds it fascinating. Well, that's incredibly helpful because we do need to prompt people to rethink. - [Sky] Absolutely. - Well, but we shouldn't give David Boies short trip. - [Sky] No. - Because I mean, it is true that when he talks, we feel like, "Well, he's talking to the people who love us," although that is not always exactly the case either. - [Sky] That's true. - I mean, here's a man deeply respected, if I may say so, in even larger arena than our own concerns about our rights. Also a brilliant litigator. I mean, it was an interesting... - And I think the key was the combination of the two of them too, because of the Bush- - Calculated, I think. - Absolutely, well, I mean, actually it was Olson's decision as I understand it, to approach Boies to bring him in, because he was approached first and he wanted to do it, and then he thought of getting Boies which was a master stroke. - Well, in standing together, they represent the fact that this isn't and oughtn't to be a partisan issue. It's an issue of basic rights, and they represent that point and having the two of them representing an ideological spectrum means that there can be a... and has been again and again, a conversation on major broadcast media without the producers feeling some need for balance to bring in somebody who just basically despises gay people as if that was gonna provide balance. I mean, the other thing I was gonna mention about David Boies, because you're exactly right, I mean, Ted Olson is primarily an appellate lawyer, David Boies is a trial lawyer, and this case was not originally thought of as having a trial. It was Judge Walker who, as a trial judge, knowing that the Federal Courts have not looked at this question a lot and don't do a lot of family law cases either, decided and said to the lawyers in the first hearing, "I think I should have evidence, I think I should make findings on a range of things that will help those upstairs, who will be looking at the case next, I'm just a weigh station, I know where you're going. You wanna spend as little time here as possible to take it upstairs, but I think it will help the appellate jurists." And that was actually not at all what the plaintiff's team had initially intended. I think it was incredibly important, and folks should know that the Prop 8 proponents who were allowed to come into the case to attempt a defensive Prop 8, specifically because the Attorney General, Jerry Brown, of the state said, "This measure does not deserve a defense. I'm not going to give it a defense, I think it's unconstitutional," they were allowed in to do it. They originally intended to call quite a few expert witnesses, "expert witnesses." After those witnesses were deposed by David Boies and his team, and their lack of expertise, lack of logic, lack of anything useful was revealed in deposition, they then didn't want to take the stand, and what people may have heard was the claims of, "Oh, we don't want to appear in court because gay people harass us so badly that it will be terrible for us and we're very scared, so we don't wanna testify." Well, this case was gonna be heard in Federal Court. There were marshals everywhere. Nothing was going happen to them. What would've- - Of course these witnesses made a career of the- - Absolutely. (indistinct) - But importantly enough, they had not been challenged. - [Sky] Exactly, that's the key. - I mean, that's the difference. - [Sky] Absolutely. - Is that the whole case that they put on was opinion, opinion, opinion, opinion and they imagined that it would be, just float right in with more than the few witnesses that actually ended up appearing in court. - And this is what Jenny's talking about. - But when deposition for people, who I'm sure you all know, but I hope you've never been through one, is, the lawyers ask you these questions ahead of time, on the record, and then you go into court and they use what you said, will you validate it or now you're saying something else? Or whatever, and their opinions had never been challenged, and it's like, "Well, where's the study?" "Well, I read it in on Wikipedia". - [Sky] Online, exactly. - Well and this is why we have a system of government that has a representative body making laws, doing it brilliantly when we have wonderful people in the legislature. - I know, people don't agree these days, but... - And we have courts where there is a process for testing, whether the arguments that people want to make are fact-based, opinion-based, delusion-based. I mean, it's an important process. And when people say, "Oh, our right to vote is being taken away," No, you have a right to vote, but what you vote on gets tested. It is appropriate to have a process to test it, and Judge Walker's opinion, that is accessible, readable, clear. I mean, I invite everyone, not just lawyers. I mean, it is a very accessible explanation of the evidence that was put on, the credentials of the people who were presented as experts, who was believable, who was not, and conclusions, that is findings of fact. - But let me... Before we get to the opinion, because I want this to proceed in a chronological way, - [Jenny] Mm-hmm decided to bring it to court, Jerry Brown said, "I don't want to be on the side of Prop 8," The people who were the proponents of the initiative itself were allowed to "intervene." They're called interveners. And they presented the whole case supporting Prop 8. A whole lot of evidence was presented by witnesses, mostly on our side, because as you said, many of the other witnesses said, "Okay, I guess if I'm going to be actually questioned about this, I'm not going to go into court," but there were a few. - [Sky] Two. - Yes. - [Sky] We ended up with two. (laughs) - Both of whom said, "Well, actually they could have a point.] (Sky laughing) Okay, so here we are. It's the end of taking the testimony in court. Now you expect Judge Walker's going to issue his opinion, right? Now what month was that, that the testimony was over? - It started and finished three weeks in January of this year. - January of this year. So quite a while ago and no opinion, no opinion, no opinion. And then if I'm not mistaken, then we hear, "Well, the judge has some more questions for the attorneys." Can you talk about that for a minute? Because that seemed to me to be unusual. And then when I saw the questions and I wanna ask you about this Sky, it freaked me out, I have to say. - Yeah, well at the conclusion of the evidentiary phase in January, Judge Walker said he was going to take a period of time to review the videotapes of all the testimony and look at all the documents. And let's keep in mind, so although the US Supreme Court, in an opinion written by Justice Kennedy, said that that testimony could not be video cast, the tapes exist, Judge Walker wanted to review them. There also were continuing skirmishes between the parties about documents that each side wanted from the other about the Prop 8 campaign to be able to examine the things that had been said to the public primarily about what Prop 8 would or wouldn't do, which is an important part of the analysis here. Was this driven by anti-gay bias? - [Sheila] The vote, you mean? - The vote, exactly. It's part of the legal test of what a measure is actually about. So Judge Walker said he wanted to review the evidence and he had to resolve these fights about documents. And then as we were making our way through the spring and getting into summer, he issued these questions. Now, they didn't actually freak me out. It was long and detailed questions to both sides. It seemed to me that they were capturing each of the arguments that both sides had made and it was a mechanism through which Judge Walker required each side to give a brief summary of their position on each thing, so that he could then use their own statements of things in his opinion so that it would reduce the ability of anybody to say, "He was mis-characterizing what they said." So in other words, it was like, "Here is all the evidence." - Summarize your own evidence. - Exactly. - In terms of summarizing it. - "Give me the best you have on each of these points," and both sides did it. Now, it was a lot of work for both sides, and as somebody you was happy in some moments to be providing some help to plaintiff's council, there was a lot of coffee that was consumed in those days, (laughing) but it yielded documents that gave the whole... All this evidence boiled down to concise statements. - When I say it freaked me out, it's like, I read the questions in the paper and it sounded like the same thing that people say out in the world. "Well, is it true that children who grow up in gay families do worse than children who don't?" And I'm sure that the answer could be, "No, it's not true for the following reasons," but it just... I don't know. Sky, did you? - I didn't get that freaked out since from too many people either. Maybe you were just more nervous than anybody else. I think people... the people who were following it that closely, because that is fairly close following of the case to get into those questions. But I think most people who were following it felt as though these are the kinds of questions that we do want to hear answered, because we know that the answers are gonna be entirely favorable to our point of view. My position has always been, and I know it's been that of many other folks, that whenever these issues are discussed in any public forum, we benefit, because the other side's arguments are almost entirely based on myth, prejudice, fear, anxiety. I mean, I thought it was extremely telling that not a single argument that was advanced to the voters in Prop 8 appeared anywhere in the court case surrounding Prop 8. And that's because the arguments they advanced to the voters were either lies outright or misinterpretations entirely framed in order to make people anxious and it worked right. But you can't use those kinds of arguments in court. First of all, some of it's not germane, and secondly, the point we touched on before, if they're subject to cross examination, then they collapse. Their arguments are slogans, they're bumper stickers. When you have to ask a follow up question, when they have to answer a follow up question, they're outta luck. - Right, because a lot of the argument toward the end of the campaign related to education. - [Sky] Sure. - And how your kids would be forced to learn such and such. And I mean, as the author of legislation set up the anti-discrimination part about sexual orientation, I can tell you, no, there's no requirement to teach about marriage, and therefore there's no requirement to teach about gay marriage. I mean, it was all a lie. And as you say, once you say it in court and the people say, "Could you point it out in the California law?" And it doesn't exist, then you're S-O-L, as my dad used to say. - [Sky] Yeah, absolutely. - Well and the other point is that in a court of law where you have a judge whose job it is to enforce equal treatment of all people, if one side says, "Well, I don't want my child to learn that gay people are okay," which was one of the phrases in the ballot pamphlet, the other side can say, and the judge has to agree, "Well, it's not the government's job to say that heterosexual people are better than gay people. You have heterosexual people, you have gay people, and the Constitution says they're equal." Now, people can have their own views in their own minds. I mean, that's part of what liberty and freedom are about, but the state can't enforce it. And the schools, as they're an agent of the state, can't be teaching, this group of people are better than that group of people. - Right and I think in the initiative process, which is what... for those of you not living in California at the moment, is the way Prop 8 was adopted, and we have this Wild West, "If we get a majority vote, we can take away people's rights," law. It's not so much that the people spoke as voters, and that was the end of it, the people spoke as voters and made it the law. And therefore, when you enforce the law and say, You may not have a marriage license because of this initiative," it's the state that's taking the action, not all the people who went to the polls and voted. So the test, as you indicated, is not whether people can vote to put something in, because we had the same thing with housing discrimination in the old days. People were all for it, voted for it. It was just great, "I don't want them in my neighborhood," but the court said, "Sorry about that, Equal Protection." So the judge issues all these questions, the questions all come... the answers all come back and then we get the judge's opinion. So let's talk about that opinion because it's been described as elegant, it's been described as airtight. Can you describe what the judge said? And we call them opinions, but it's really that, that's what the court says, what the judge said in his opinion. - Yeah, well, and I've called it meticulous and thorough. (laughs) Those are my words for it. - That's very good. - Well, the judge's decision has a legal section and factual findings and I would encourage everyone to read it. Don't take my word for what it says, it's good reading. More pages are devoted to the factual findings, and that's consistent with Judge Walker's description of his role as a finder of fact. - Not only Judge Walker's description, but actually the... I mean, the way we've allocated the job of the trial court, the appellate court and the Supreme Court, they have different roles. And the judge is the finder of fact, when there's no jury. - That's right. So a trial court is about finding facts and applying law, and sometimes law is unclear. There are open questions in the law and there's actually a surprising number of open questions when it comes to LGBT rights, at which point the trial judge's job is to interpolate from the decisions that exist and make the best assessment of what the answer should be. But knowing that the court of appeals job is to look again at rulings of law, but to give deference to findings of fact, and in particular findings of fact, that were based on hearing a witness give testimony, because the judge looks that person in the eye, studies their resume, and makes a decision, "Do they seem to be credible and authoritative? Does it make sense?" And having heard the witness, that finding then gets deference on appeal. So this decision has a legal section that looks both at the Due Process argument, the argument about liberty, and then a section about Equal Protection, and then it has important factual findings. Just to sum up the legal part briefly... and it is briefer, and sometimes people have said, "Well, it doesn't really seem that detailed. Is that because it won't really hold up very well?" No, it's because he knows his job is really, primarily about the evidence and the court of appeal is going to redo the legal section, but he's giving his views as a starting point. So with respect to Due Process, which it was also about protecting liberty, there have been quite a few decisions in federal law, from the Supreme Court, recognizing a particular liberty to marry the person you choose, which has been described as a fundamental right to marry. So the question here has been whether that is inherently a heterosexual right, or a right of individuals? Is it a right of a person to marry somebody of a different sex? Or is it a right of a person to marry the person you want to marry? It was for a long time, the right of a White person to marry another White person, or a person of color to marry another person of color until the Supreme court said, "No, it's a right of people, not of races." So in this movement, we are making very much the same argument, but there have been some courts that have said, "No, marriage by its essence is heterosexual." So Judge Walker said, "No, we apply a decision from the US Supreme Court about liberty that says liberty is the freedom of a person. This is the freedom to marry the person you want. Gay people have that right too." So that's very important. If that ruling is upheld by the higher courts, it would mean... And I know you're gonna get more to consequences later, but I'll just flag it, that would mean that all the marriage restrictions in the entire country are invalid, because the US Constitution has to mean the same thing in Mississippi, that it means in California. - But that would be up to the United States Supreme Court, because- - [Jenny] Exactly. - We're divided into regions which are called circuits. - [Jenny] Actually in the- - In the appellate system. - [Jenny] Exactly. - So the one strand of the 14th Amendment, the Due Process strand says that you cannot take away some liberty or property from a person without Due Process, which was, I think described by a legal scholar as all the process which is due. And there are different levels at which these rights, if they're being taken away from you, are tested, and the more fundamental, the more important the liberty that's being taken away, the more the state has to show that they really have to take it away. They have to have a really strong interest in taking that away, and that was part of what Loving versus Virginia said about marriage. So, I guess that probably they didn't have it. - That's right. I mean, this is exactly what having a trial where there was an examination of history to understand if marriage has been consistently one thing throughout time, and if so, what is that? What are we protecting? Which led to this conclusion that it has changed its contours over time, but the essence of it being a way that adults create a family, that the state respects, that that stayed the same, and that in this instance, the different justifications or excuses offered by the Prop 8 group, they don't hold up, and that in fact, that gay and lesbian people have the same need for marriage and they're exercising the same kind of personal liberty when they want to marry as heterosexuals do. When we talk about whether the state can deny gay and lesbian people the right to marry, often it said, "Well, then we'll have polygamy, or then we'll have underage marriage." It's like, "Well, we test what is it the state's trying to do and what's the reason?" So here, the evidence was about gay people and whether the state needs marriages to be different sex anymore today, it's not about polygamy. So in a different case, the state would have to put on its reasons for saying, "It can only be two." And I flag that because since we have this legal test, we actually understand, "Here's my liberty, the state is restraining it, what's the state's reason?" We test that reason. And it's a very orderly process and it answers the question that's on the table, not a bunch of other questions. So this table was about having a different sex requirement. - Well, it seems to me... and let me ask you Sky, the issue of marriage in our community, it's fairly new one really, when you think about our movement. We didn't really even think to hope for it, but it has grown to be a very important aspect, not the only important, but a very important one. How do you see the community as you interact with them, day by day? - Well, you're right, it's been- - Changing their eyes about it. - I think in my mind anyway, around 1991, 1992 is when this first came, a case in Hawaii that Jenny's very familiar with, Baehr v. Lewin, if I remember, a state that was the first really strong state challenge to marriage law, and actually at the early stages they were successful. And when that happened, which I think was actually 1993, then there became an awareness that this was an issue, even though it hadn't been in anybody's conscience for the most part, was coming and was gonna be with us for a long time. And you're right, there are people who have different feelings about it within our own community, whether that should be the important issue or not, or marriage is patriarchal, or it's blah, blah, blah. (Sheila laughs) But that's really fairly... I mean, those are all serious issues, I don't mean to be facetious about that, but they're not particularly relevant to the reality that indeed this was... there was a momentum behind this, and also they would have just a media appeal that would dominate the national conversation for a long time, and that's come to be the case. You're right, there's a host of issues that affect our community, and all of them are very important, but this has really become, especially now, the proxy issue for whether or not you truly believe in full equality. If you believe in marriage, then it's pretty clear you believe in full equality. If you don't, then you're somewhere less than that. So in that sense, it's clear that this is the issue that's really a litmus test issue for our friends, our non-gay and lesbian friends, our political supporters, and in fact, one of the reasons that President Obama and others are having some trouble with the communities, because their position on this issue is a little incoherent. President Obama was against Prop 8, but he's also against marriage. So what does that mean, exactly? So this issue really galvanizes the attention of our community whenever it comes to fore, and not just our community, but on the day the decision came down, I mean, our organization was inundated with calls. I'm sure Lambda got calls from news agencies around the world. Myself, I did interviews with Bogota, Colombia, and BBC. I mean, this is really an international issue with effects that ripple way beyond who we are. - Well, and it's interesting to have it be a constitutional issue about a fundamental right, because there are other countries looking to their own constitution, the case in Mexico City, which was a constitutional question about equality, but you were talking not about equality here, Jenny, you were talking about the one strand from the 14th Amendment that goes to Due Process, can't be deprived of life or liberty or property without Due Process. The other part of that same amendment also says that everyone has a right to Equal Protection under the law. And it doesn't mean that everybody actually gets Equal Protection under the law, but on very big questions, it is the case that you ought to be able to test it in court about your equality. The judge though, did a, it looked to me to be a bit of a side step maybe, or maybe you can explain because there are different levels at which the court tests, whether your particular group ought to get Equal Protection. For instance, between people who are five foot eight, and people who are five foot six, if there was a law about it, it's not such an important thing, but, I don't know, maybe you couldn't find a rational basis to do it, but you wouldn't get really intense scrutiny like you do for racial divisions or gender division. But the court didn't go there, can you explain? - Yeah, so the part of the decision talking about Equal Protection has two parts. And in the first part, Judge Walker looked at anti-gay classifications and addressed a question that has remained unanswered so far from the US Supreme Court, should anti-gay classifications receive the same rigorous constitutional review? Should they be presumed... well, seen with suspicion the same way that sex based classifications or religion based, or race based- - [Sheila] Made by the state. - When made by the state. If a law treats a group of people differently based on one of those traits, a court's gonna go, "Hey, I'm gonna look carefully here," because often, historically, when that kind of classification was applied, it was based on prejudice, irrationality, and it should have been struck down. There was not adequate state reason, really, for treating that... The group of people that routinely gets the short end of the stick, yet again, was getting the short end of the stick, and the court should say, "No, inadequate government reasons for that, is an anti-gay discrimination like that?" And he accepted some evidence that is important in doing the test of what is sexual orientation and what is the history of how gay people have been treated? Most of these things, we all know, we deal with it every day. Sexual orientation is not something you wake up one day, "I'll be gay today. I'll be straight..." No, I mean, it's part of who we are and it's not something that people can easily change, and it is something based on which people have been treated really quite atrociously historically and still. So he applied the test and said, "Yes, if I see an anti-gay classification, I, as a Federal Court, should look very carefully to see if it's justified." The conclusion, the language for that is to say that sexual orientation classifications should be subjected to strict judicial scrutiny. However, so he offered to the court of appeal, "Here's my view on that and if you don't like that, I also think, having looked at all this evidence that was given." - Alleged evidence. - "All this alleged evidence, overwhelmingly the evidence shows that this measure cannot be justified." There was nothing... as I had said I think in one of my statements, there's no, there, there. Here's a reason, well, not really. Here's a reason, no, not really. None of this made any sense. So even if a court uses the most lenient form of constitutional review, this fails because it does not advance any legitimate public purpose, and it harms people. Helps no one, no public purpose, but it does cause harm. And the point there, is that the Court of Appeal will consider what the legal test should be, and he's saying, "Okay, my view on this, if based on the record that has been accumulated, is this can't be justified no matter what standard you use." - Mm-hmm. Well, let's talk about appeal, because there's just too much to talk about. (laughing) And I think people will say, "Wait the hour's up and they didn't talk about the Supreme Court." But I want to get one more thing in. So, because there's a couple of issues on appeal, which we may want to conflate just in the interest of time, the guys who lost, which were the proponents of Prop 8, the people who wanted the initiative, have appealed to the circuit that oversees the federal decision making in California and a few other Western states, the Ninth Circuit. And the judge said, "Well, here's my opinion. That would mean Prop 8 can't be enforced and people could run out..." he didn't say, could run out and get married, "But I will wait to make this opinion official, or published, or I don't know what you'll tell me, for six days to give the Ninth Circuit a chance to decide, do they wanna hear it?" And then there was another issue about whether or not those guys who proposed the proposition actually had standing that is enough at interest to take the appeal? So tell a little, if you can, briefly about the appeal. - Well, so Judge Walker said, "Overwhelming evidence says Prop 8's unconstitutional and gay people are being harmed," then the question is... But it had been made completely clear from the beginning of the litigation that whichever side lost was going to ask for an appeal. So he then did the test about whether his opinion should be put into effect right away or "stayed," put on pause as the litigation continued and- - And if his opinion was stayed, it would mean that the Prop 8 was still in force and we could not get married for those days. - Exactly. Applying the usual test, it's very clear that Prop 8 should not be enforced, that gay people should have the same rights that everybody else has. But clearly I think Judge Walker wanted to give the Ninth Circuit judges an opportunity to look at that issue and to not have people running around like headless chickens in the Ninth Circuit, and to have an orderly process. And the Ninth Circuit said, "No, just a two paragraph opinion, we want to put everything on hold while we consider what's going to happen next." And just to explain for people, that doesn't mean that the Ninth Circuit disagreed with Judge Walker's assessment of likelihood of success on the merits, or who's harmed, or public interest, but rather it is fairly common for courts to say, "Everyone sit in your chair. We're gonna maintain the status quo while we do this litigation, but we're going to speed up the process." And they set a calendar for briefs to the Ninth Circuit that is much quicker than usually would be the case. Now, your other question is, have they agreed to hear the case? Well, they've agreed to hear the case, but they have flagged that the Prop 8 proponents may not have the legal right to take an appeal because they may not have the kind of legally recognizable injury that allows you to make a federal case of it. There are many things on which people have a view, many things on which people vote, many views about how other people should live their lives, and that doesn't mean you get to go into Federal Court and ask a court to issue an order, telling the state to do something. So, the order from the Ninth Circuit says to the Prop 8 group, "Give us all your arguments about Judge Walker's trial, and this opinion, and these issues, tell us whatever you want to tell us, and explain to us why we should not dismiss your appeal because you may not have an adequate legal interest." - Well, there are all kinds of gates that litigants have to go through, because there has to be some active question that the court is hearing. They can't just say, "I'm thinking that there might be a problem here. Nobody's actually had one yet, but could you give us an advisory opinion?" Which they actually do in other countries and even in other states, not in California, but they do advisory opinions. So we don't do that in Federal Court, there has to be some active issue going on, and whoever's bringing it to court, has to have, as you said, some connection that shows why they're the right ones to bring it. And there was a case, an Arizona, case where it seemed like just an interest in legislation or an interest that you were the proponents of an initiative, possibly may not be sufficient anymore than I could bring a case because I want to back up one of the bills that I got signed. I'm not the person who's being harmed if it's going through or not going through, usually. So now we have something sitting at the Ninth Circuit with a little flag about whether you would have standing or not, in Prop 8 proponents. Plus we want you to prepare for a whole full blown appeal. So Sky, tell me, what's going on in the community now about this. It was a little confusing with this appeal thing. I mean, we see pictures in the paper of people lining up in their wedding dresses, ready to go, and then they go home and they're in tears, and it's been- - I think there's still some confusion. I think that this is uncharted territory for everybody, including the lawyers. And in fact, you can talk to five different lawyers and get five different assessments of what's likely to happen next. - [Sheila] Or six. - Well, not five different Lambda Legal. - Yeah, no, that's true. (laughing) Lambdas are all on the same page, but I've been following this very closely in a number of respects over the last... well for a long time, but certainly intensely in the last couple of weeks then. And it's clear that there's a question about whether on this status, this question of standing, most lawyers seem to believe that if you just go by the precedent, it seems like it's a really very doubtful thing that they actually do have standing. I mean, the defendants in this case were the Attorney General and the Governor of California, and they do not support an appeal. So therefore, who do these other guys get to be and why do they get to be involved? Some people have characterized that as a technicality, but that's not really a technicality, it's a pretty significant principle, plus it also goes to the core of their case. The point that is made is, "Well, if you're not harmed by this in any way, then you don't get to do the appeal," but that's the whole point of their argument in the first place, that somehow this is harmful to them, and harmful to straight people, harmful to the institution. So there's a way in which that parallels but folks are still... I mean, I feel folks in general, I think, are still not quite clear because there's just an awful lot of variables here. If standing isn't granted at the appellate court, that could be appealed to the US Supreme Court, which would be very interesting- - [Sheila] Just understanding- - Just understanding issue alone before they even get to the appeal stuff. So there's plenty of work for lawyers to do no matter what happens next. - Well, and I think that's why the Ninth Circuit had the issues all be briefed at the same time on the same schedule in the fall, because it will allow the three judges that will make up that panel, to see all these different arguments about "supposed harm," which connects to standing and then give a decision that they think makes sense having heard everything. Instead of isolating the issue of standing without the rest of the arguments that might then seem incomplete, especially if the Prop 8 proponents are said not to have standing, and they ask the US Supreme Court to review it, the Ninth Circuit would want there to be a complete opinion so that the Supreme Court could understand and make its informed decision. - Well, I think part of it is that people don't... If you've ever been in court, it doesn't seem all that rational to you if you've been a witness, or you've been a plaintiff in traffic court, or something like that, because it doesn%'t seem that way. And frankly, people think, "Well, lawyers, they're all tricking the system and they make arguments based on this and that," but if you love the law the way I do, and you read this opinion in particular, you begin to get a sense of what the founding fathers, I think, had in mind, in making the court a co-equal branch of government, and then when the court, actually on its own, just took power over, interpreting the Constitution, even when Congress had made a law or when the president had done something, then you begin to see that they had to set out some very clear rules about who could bring a case, about who would present evidence, about how the evidence could be put together, and about how existing law... We weren't making it up, it wasn't common law, it was from previous cases, how it would be applied. And if you see it as a rational put one foot in front of the other, kind of thing, I think it actually helps people to understand how, in my feeling, majestic really, American law can be about equal rights, but there are personalities. So let's take the minutes remaining, however many, and let's look into the future or whatever. What do you guys think is gonna happen or what could happen? Or... - [Sky] You can start on- (indistinct) - I guess, where I wanna start before talking about what may happen in other courts by saying that I think it's incredibly important that people in the community have been so engaged. And even though it's wrenching, it's hard on people, the idea of, "You're gonna regain your rights next week, Wednesday. Oh no, you're not." And what's happening next? And people feel very jerked around and we should have our rights and we're fighting for them, but we don't know what's gonna happen next. I think people feel very vulnerable and hurt, but the expression of the fact that we are hurt is critical to us moving forward, because the most... I mean, what we have lacked for generations is visibility and people understanding that we have the same feelings, and that it does in fact, hurt us if we're treated unequally, or we're denied the opportunity to have important life events that other people have and prize. So, I say, be visible, share how we feel. People should never be violent, but people should speak out. And that's an engine of social change and litigation in the courtroom is, I think very elegant and it gives power to things we feel, but it helps to articulate it in that venue, and it gets legitimacy when courts hear it and it comes out in a court opinion, but it also is creating a vehicle for conversations, and those conversations are just as important to the social change process as what the courts do, and what the court does is very important, but what we all are doing is just as important too. Maybe this is the fourth branch or the fifth branch, (Sheila laughs) I don't know. - [Sheila] Maybe- - There's no question about that, and the visibility goes both ways. The visibility to the other side is exposing the poverty of their arguments. And in fact, I've been struck by, I mentioned before, how often we see Ted Olson and David Boies on television talking about these issues. On their side, I've never seen Charles Cooper try to defend this in a public forum anywhere, and most of the spokespersons we see on the anti-side are the professional anti-gay people, the National Organization for Marriage and Maggie Gallagher and Brian Brown, but some of the mainstream quote unquote, conservative leadership Republicans, they're not really talking too much about this issue. I think they just assume, leave it alone, I think they recognize that popular opinion is swinging, and in fact, if you look at independent voters and democratic voters, they already support marriage equality. If you look at numbers across the country, majority of both those categories, support marriage equality. - Well, and when you mention Chuck Cooper, I do wanna say, there has been quite a bit from the Prop 8 side of, "Oh, it was so unfair, they were so outgunned." Well, Chuck Cooper has been among the most prominent lawyers nationally in Republican administrations. He is a top flight lawyer. - [Sky] Very much so. - And they had a whole bunch of lawyers on their side. I mean, there were many lawyers on both sides here, but the paucity is not how many people they had working on the case, it's the paucity of their arguments, and I think part of what we need to be talking about with increasing clarity is, "Well, who's really the victim here?" It is gay people being denied the same rights other people have, it is not the anti-gay groups who are being held to their proof. There's nothing unfair about that, and if they don't have good reasons for what they're doing, they should stop doing it. - And the other thing that both of you have been talking about, that struck me is that when you consider what we've been calling evidence, the evidence that was presented at the district court level, at the trial level, that is evidence about our lives. - [Jenny] Yeah. - Those are lives that we have been living, those are notions that we have been developing, that brave people have said, "Before I could get married, I'm going to make a family anyway, and I am raising children." And that becomes the evidence of what our children are like if we raise them. A movement has grown up around sexual orientation discrimination, but more broadly the relation to gender discrimination, the relation to family discrimination, and that evidence... And I was thinking of Lee Barget and people who are social scientists and present information about us, each piece of information is a life and that's why our side was so strong. We had great lawyers and we had great lawyers all along in terms of litigation for us, but really nothing comes without this courage of people all the way back to, oh, Maurice Kyte in the founding of the center and all the stuff that's happened here and in so many other cities. - It all builds on it's... It's momentum is gaining all the time, and I'm struck by that, and the national conversation is shifting little by little, all of the time, and then this particular moment is just a dramatic example of that, to me. If you look at where the conversation is and what people are talking about on this issue, it really has moved, I think, to a different plane. - Well, and I think that's... I mean, as a lawyer, what is exciting to see about a lot of this... I mean, of course, it's exciting to see people caring about court cases, (Sheila laughing) but it is that we, as a movement are telling the truth and as we are living our lives with freedom and love and trying to treat each other well, as you say, that's the evidence. Well, the more we tell these stories in the court cases, the more judges can understand what Equal Protection or what the Liberty guarantee means in this case. We don't just cite a precedent that was about some other social problem and expect to get the answer that's appropriate here, we have to develop the... That's part of why our legal complaints often are much longer than in other cases, (Sheila laughing) because we need to show what equality requires in this context. - Well, it's interesting to be part of the major civil rights movement of the moment. It's not the only one, the immigration movement is extremely front burner and important, but I never thought as a kid that I would grow up and be in the middle of a civil rights movement that was about me. I thought I'm gonna join all the other ones and I'm very happy that the two of you have been engaged for such a long time and hope you're engaged for even longer. Thank you so much for being here. Jenny Pizer, Sky Johnson, thank you very much for being here with us - [Sky] (indistinct) Thanks. and we're gonna be in court, we're gonna be in our families, we're going to be in America's fabric, so get used to it. (upbeat music)