Strauss v. Horton Oral Arguments Teleconference

On March 5, 2009, another historic argument was made before the state Supreme Court in California to protect the constitutional guarantee of equal protection for all and to fight to restore marriage equality.

At 3 pm PST, Lambda Legal’s National Marriage Project Director Jenny Pizer and Legal Director Jon Davidson discussed developments in the case against Prop 8. For more about the case, visit the page for Strauss v. Horton.

Teleconference Transcript

OPERATOR
Kevin, the floor is yours.
KEVIN M. CATHCART
Good afternoon, everyone. This is Kevin Cathcart.
And I want to welcome all of you from California and around the country who have called in today to hear about the historic argument that took place just a couple of hours ago in Strauss v. Horton, our challenge to the validity of Proposition 8 brought by Lambda Legal and our sister legal groups, NCLR and the ACLU. In a moment you’ll hear more about the legal arguments and case-related events from our Legal Director, Jon Davidson, and our Marriage Project Director, Jenny Pizer.
Before they speak, though, I want to take a moment to thank each of them and our entire team for their tremendous legal work and leadership on this case and so many others. The court expedited this matter with a punishing briefing schedule and Jon and Jenny worked around the clock to meet it with an amazing array of briefs that we are all very proud of. And I also want to take a moment to congratulate and thank Shannon Minter, the Legal Director of NCLR, our friend and colleague who delivered the arguments today. And I want to thank all of you on this call, everyone who has supported our work and our vision for so many years and made both last year’s victory at the California Supreme Court and today’s argument possible.
As you know, Lambda Legal has been fighting for LGBT equality for over 35 years. We’ve won tremendous victories that have changed all of our lives and we’ve also had to overcome some serious setbacks. Today’s case is one part of our long-term strategy to win not only marriage equality but full equality for LGBT people in all parts of our lives and in all parts of the country. I couldn’t be prouder of the work and the people who are doing it. And we’re so grateful for all the activists and supporters around the country who are members and donors and make the work possible. This is a huge team effort. So thank you again.
And now let me turn the call over to another member of our team, Bev Tillery, the Director of Community Education and Advocacy here at Lambda Legal, who will be our moderator, and will introduce our presenters to you.
BEVERLY TILLERY
Thank you, Kevin. I'm also excited to welcome you all to this members’ briefing following oral arguments before the California Supreme Court in Strauss v. Horton. Thank you for calling in this afternoon and for supporting our programs.
Jon Davidson, our Legal Director, and Jenny Pizer, Senior Counsel and Marriage Project Director, who are key members of the legal team in the challenge, will give us a few remarks about the lawsuit and today’s court proceedings. Then a question-and-answer forum will follow.
As you all know, in May, as a result of a lawsuit filed by Lambda Legal, the National Center for Lesbian Rights, the ACLU and others, the California Supreme Court ruled that it is unconstitutional to deny same-sex couples the ability to marry. But, on election day, California voters passed Proposition 8 by a margin of 52 percent to 48 percent, approving a change to the California Constitution that would deny marriage to same-sex couples. Lambda Legal and our partner legal organizations quickly filed Strauss v. Horton, and earlier today the California Supreme Court heard oral arguments in the case.
Jon and Jenny have a lot to report, but let me just give a couple of logistical notes first. Because there are so many people participating in today’s call and to ensure that Jon and Jenny can answer as many questions as possible, we’re not opening the call to additional speakers. Instead, participants have been invited to submit questions in advance. People from all over California and around the country have already sent in a number of questions. We invite you to submit questions during the call by e-mailing us at libertycircle@lambdalegal.org. We’re also happy to announce that this is Lambda Legal’s first live Twitter event. So if you use Twitter and are following Lambda Legal, you can submit questions by replying to one of our “tweets.”
With that, let me introduce Lambda Legal’s Legal Director, Jon Davidson, who is in L.A., and Marriage Project Director, Jennifer Pizer, who was in the courtroom today and is calling in from San Francisco.
JENNIFER C. PIZER
Thanks, Bev. Hello, this is Jenny Pizer and I'm going to start off with a couple of overview thoughts and then Jon will add some of his thoughts before we go into questions. And I want to say that I'm happily here in the offices of Jones Day, and we have a live audience here as well.
So let me start by just reminding folks of the legal argument that we presented in this litigation, which is a challenge to Proposition 8 of course. The main argument is that Proposition 8 was an invalid initiative contrary to the rules in Article XVIII of the California Constitution, which makes a distinction between revisions to the constitution and amendments to the constitution. Revisions generally are understood to be very significant changes that either go to the structure of the government or our system of government or that are contrary to core principles of our constitution.
The cases, and there’s not many of them, but they talk about quantitative changes and they also talk about qualitative changes. Our argument in this litigation is that Prop 8 is invalid because it was enacted with the initiative process which can only be used to make amendments. It is contrary to the core principle of equality which has important qualitative aspects throughout our structure of government. Protections for equality run throughout the California Constitution and this measure offends equality because it allows a bare majority of voters to take a fundamental constitutional right away from just one targeted group, a group defined by a personal trait in a way that the Supreme Court has recognized as constitutionally suspect.
So we have together two really important constitutional problems: it’s the taking away of a fundamental right from a group that is especially vulnerable. If the majority can do that by a simple vote, then the constitution’s equal protection guarantees have been rendered essentially meaningless. That distorts the core principle of equality and, we believe, defeats the whole purpose of having that constitutional guarantee. And it deprives the courts of their core role, their core function of enforcing equality, to make sure that minorities have the same rights that the majority keeps for itself. That’s our main argument.
Folks may recall that the Attorney General of California also is participating in this case and has offered a different way of thinking about Prop 8. The Attorney General also concludes that Prop 8 is invalid. But his thinking is that this may be an amendment, but it’s an invalid amendment because it’s taking away an inalienable right, one of the most basic rights protected by the constitution, without the government having an adequate interest for doing so. So it’s an abuse of the power of the voters to take a right away without a good enough reason.
And I’ll just quickly give an overview of the people who argued in court today, for those of you who weren’t able to watch it, and we’ll encourage folks to watch the video when it’s available on the Supreme Court’s web site.
The argument for our team, as was mentioned, was given by Shannon Minter who’s the Legal Director of the National Center for Lesbian Rights. We also heard arguments by Ray Marshall, who is a partner in the law firm in San Francisco of Bingham McCutchen, and he was arguing on behalf of friends of the court who joined an amicus brief on behalf of leading civil rights groups. And also there was argument by Mike Maroko who represents two couples who also filed a lawsuit; and then by Terry Stewart who’s with the City and County of San Francisco.
Arguing for the state was Chris Krueger, and then we heard from Ken Starr who was the lawyer for intervenors, the proponents of Prop 8, and then we heard some rebuttal arguments.
And just to give a couple of quick thoughts about the argument, in terms of reaction to what we heard, I think the main thing I carry away from the arguments is that the justices have recognized, a number of questions showed, that this a new question that is not answered by the existing cases. There’s not a lot of cases in this area, but the cases that we have never have addressed a question like this one. And some of them seem to be really struggling, recognizing that the implications are very serious here as they’re addressing the extent of the voters’ power to change our governing document. We saw that in the comments such as perhaps the initiative process should be changed and exploring what the consequences would be if the initiative power really allows this kind of change.
There seems to me to be perhaps a bit more consensus on the question of whether the married couples, the roughly 18,000 married couples, should be considered still married. It is always hard to tell. In fact you can get yourself in a lot of trouble trying to make assumptions about conclusions based on judges’ questions. And I do hold to that approach. But with respect to the existing marriages, I think it’s fair to say that Ken Starr was given quite a lot of difficult questions. And it sort of gave an indication that maybe there is a more settled view among some of the justices that the existing marriages remain valid.
Jon, how about if I turn it to you, and in particular, along with your reactions to the argument, you might talk a little bit about what the next steps are and possible ways that the court might rule?
JON W. DAVIDSON
Sure; happy to.
Well, I just wanted to emphasize one thing that Jenny said first, which is it is really difficult to determine the outcome of the case from the questions that are asked at the argument. Judges routinely ask difficult questions even to the parties they agree with, because the point of oral argument is to examine the consequences of ruling one way or another, to probe the attorneys about what their arguments mean and why they believe what they believe, and sometimes to have the lawyers explain to a judge who disagrees with the judge who’s asking the question why the judge asking the question is actually right in agreeing with the lawyer who’s arguing. So it’s hard to tell and I think determining the outcome of the case from the questions the judges asked is like reading tea leaves.
The only way we’re really going to know the result here is when the court issues its decision. And that will happen we believe within 90 days or by June 3 – the court well could rule before then – and might well in this case, because the whole case has been on quite an expedited schedule.
But I also agree with Jenny that it seems like, and again it’s hard to predict, but it seems like the 18,000 couples who got married will still be treated as married under California law. And I say that in part because no questions on the retroactivity case were even presented to Shannon Minter or to Ray Marshall, the lawyer who went second. So it seems like the justices feel, as we feel, that the main issue here and the issue that counts the most in terms of the most profound questions about our government is the first question of whether this is an amendment or a revision.
I think the thing that struck me the most, and it is this function of oral argument to strip down the arguments of each side, was something that Ken Starr ended up saying in his argument which was he said that under his view, the people are absolutely sovereign. According to him, any right of any minority group can be taken away by a simple vote at the ballot box. And what we hope is that the justices will not allow equality to be taken away from being part of the structure of our government.
It would be a very frightening thing, I think, to come to believe that there are no limits on majority rule in California and that, under the California Constitution, the right of freedom of speech could be taken away just from women, or the right to vote could be taken away just from Japanese-Americans. And really, Ken Starr’s position goes even so far as to believe that the institution of slavery could be reinstituted, for purposes of the California Constitution, that it really provides no secure rights whatsoever.
It’s clear to me that the court is taking the arguments very seriously. It’s quite extraordinary to have three hours of oral argument in a case. And while you can never be certain what a court will rule, it does appear that at least some of the justices may be inclined to uphold Proposition 8. If that happens, it will be a massive disappointment and bad for all Californians and for the country.
But regardless of what the court decides, we need to continue to fight for full justice and equality under the law for all Californians. No matter which way the court rules, we clearly have more work ahead and that work needs to start now. We need to do the education and the reaching out with dialogue to change minds and open hearts. And that’s going to be important regardless of which way the court rules.
That’s obviously important if the court upholds Proposition 8, because the next step, if that happens, is to return to the ballot box to try to persuade the voters to change the constitution again to restore equality to the constitution. And that’s only going to happen with people telling their stories, with people humanizing our families and really trying to change minds. But even if we win, there’s an ongoing struggle in California to try to secure federal rights for same-sex couples who were married and obviously the battle goes on in many, many states where same-sex couples are still not allowed to marry.
So with that, why don’t we go to some questions?
TILLERY
Thanks, Jon and Jenny.
Let me just remind people that you can still e-mail your questions in to libertycircle@lambdalegal.org or on Twitter, just reply to one of Lambda Legal’s tweets.
So our first question comes from a member in San Diego and it’s going to go to Jenny. Can you talk about the significance of Ray Marshall’s participation and the civil rights groups that he represents?
PIZER
Sure, yes. So, Ray Marshall was arguing on behalf of leading civil rights groups leading in California and nationally. This was on behalf of the Asian Pacific American Legal Center, the Mexican American Legal Defense and Educational Fund, the NAACP, and the Equal Justice Society. Ray’s role was to emphasize the points made in that friend-of-the court brief.
Those arguments were made first in a separate petition that those groups filed, their own lawsuit, in which they were making the basic point, and it’s the same point that we make, that if the initiative process can be used this way, then every group that historically has been subject to unjust discrimination, including groups defined by race, any minority group will be at risk for having basic rights stripped away.
And his point was that there is a clearly understandable, narrow legal test that the courts can and should use to understand why this kind of a measure is invalid, is harmful and is contrary to equality, that makes this actually a simple case, because Prop 8 involves both a fundamental right and the targeting of a group that is understood to have suffered historical discrimination where the discrimination is irrational. This in legal jargon is being a “suspect classification.” Groups defined by national origin and race as well as religion and, in California, gender, this is a legal analysis that’s been worked out by the courts, including the California Supreme Court, as being central to equality jurisprudence.
So this was a self-interested move, if you will, on the part of the civil rights groups who are very worried that, if Prop 8 is upheld, any of the constituents that they represent may well be next in the crosshairs, but also a move by some of our closest allies in this civil rights movement and the broader civil rights movement. And he argued to emphasize that this litigation right now of course is about same-sex couples but it’s also about the constitution and everybody who’s depending on the constitution. And he did a terrific job.
DAVIDSON
I’d just add, normally friends of the court do not have a right to argue the case, it’s only the parties to the case. But all of the petitioners in the case here, from all three cases that were being argued together, each gave up a few minutes so that Ray Marshall could argue. He’s a former State Bar president.
And one of the reasons we all did that was to remind the court that there were 43 friend-of-the-court briefs filed in support of our position, really remarkable support from the 65 state legislators, from cities and counties across the state, from bar associations across the state, from minority groups, women’s rights groups, faith leaders and religious organizations. It was an outpouring of support and every major civil rights organization sided with us. And we thought it was important to show to the court that the arguments we were expressing had very broad support and that they were to be taken quite seriously.
PIZER
And I’ll just add, part of why that was so important we thought is, as I said, there’s not very much law in this area. Prop 8 is such a radical proposal that there was not much case law. And it seemed really important to emphasize not so much that it’s the number of groups, because, you know, this is the court, it’s not the legislature. It’s not that whoever has the most briefs wins; it’s that a lot of people are really alarmed, that if Ken Starr’s argument is right, all these different folks that have experienced discrimination in the past, who have depended on the court to enforce equal protection, will be put at risk in a way that is new and very scary.
TILLERY
Thank you both.
Jon, the next question is for you. A member in Atlanta wants to know, why didn’t you challenge the validity of Proposition 8 before last November’s vote?
DAVIDSON
In fact we did, again the same groups, Lambda Legal, the National Center for Lesbian Rights and the ACLU filed a suit on behalf of same-sex couples who wanted to marry, as well as Equality California, before the election. The court at that point said they were not going to hear the case then. And it’s not unusual that a court will say, “Why should we hear this now? Maybe the voters won’t approve the measure. We could always hear it after the election.”
So it’s important that people understand that we left no stone unturned. We tried every way. The fact that the court decided not to hear the case then has nothing to do with whether they’ll rule in our favor now or not; it was just a determination that they were not going to hear it at that time.
TILLERY
Great. Thank you.
This next question comes from an online activist in Sacramento and a member in Pasadena. Jenny, you explained that California Attorney General Jerry Brown had a different legal argument even though he agrees that Proposition 8 is invalid. Does it hurt our side that we are arguing different things? And how did the justices respond to his arguments?
PIZER
Well, I certainly hope that it helps us. I guess we’ll see when we get the decision. I have tended to think of Attorney General Jerry Brown’s argument as another lens on the same problem. The Attorney General’s focus has been on whether there was an adequate interest to justify Prop 8, to justify taking away an inalienable right.
It’s up to the court to determine whether there’s an adequate interest. That approach therefore puts a spotlight on the role of the judiciary as the enforcers of equality. And that way of thinking about things is also revealed in the second question that the court asked us all to address, which is whether there’s a separation of powers problem presented by Prop 8.
We don’t think it’s exactly a separation of powers claim, but it is definitely a separation of powers problem if the voters acting in a legislative capacity can prevent the court from doing its review and enforcing equal protection the way it usually would do, that is, it causes an imbalance in the structure of government that we usually have.
So the Attorney General was looking at it from the perspective of the analysis that courts have used for a very long time to test whether a law is supported by an adequate interest. One thing I will say is that, while the Attorney General said that he wasn’t convinced that Prop 8 is a revision, he was very explicit, and Chris Krueger representing his office was very explicit today, to say that this is his view under existing case law. He didn’t offer a disagreement with the way we think about constitutional principles; instead he kept coming back to the idea that the court hasn’t decided this case yet. And that of course is true and a number of the justices confirmed that. So we’re hoping that this different lens for looking at the problem will help the justices think it through and see the way that they would be disenfranchised if Prop 8 is upheld.
It is true that Chris Krueger received some tough questioning from the court but I think that that’s not unusual either. Often lawyers representing the government can get some of the toughest questions. And that’s certainly true in this instance where the Attorney General didn’t agree with all of our arguments but agreed with us as to the ultimate conclusion that Prop 8 is invalid. And that is an unusual step for an Attorney General to take but it’s not unprecedented at all and it is fully appropriate that if the state’s top lawyer decides a measure is not defensible, that he shouldn’t defend it.
DAVIDSON
Yes, I’d just add that it was a little amusing at the beginning of Chris Krueger’s argument, one of the justices asked him, you know, “Which side are you on?” And he unhesitatingly said that he was on our side, that he agreed with us that Prop 8 is invalid. And, as Jenny said, that that is a pretty extraordinary thing for an Attorney General to say, to say that something that the people passed, they could not do.
I'm heartened somewhat by the number of times that justices, several of them, noted that this was an issue that they had never really ruled on before. And because that’s true, it forces the court to come up with, “Well, how do we approach a measure that’s never really come before us before?” And we presented one argument of how to do that and the Attorney General presented another one. They both are saying that there are limits. There are limits on what the people can do by simple majority vote.
And we say that the limit is presented by Article XVIII of the California Constitution which draws this distinction between what can be done by amendment and what can be done by revision. And the Attorney General says there’s a different kind of limit, that the amendment process was only intended to allow certain kinds of changes but not to allow taking away an inalienable right without having a compelling reason for doing so.
TILLERY
Thank you.
We’re excited that we have our first question from Twitter from New York City. Jon, does Proposition 8 violate Romer v. Evans?
DAVIDSON
Well, that’s an interesting question. It wasn’t one of the questions posed in this case because this case was about the California Constitution. It was about whether the people of the State of California have the power under the California Constitution to adopt a measure of this nature. Romer v. Evans was a U.S. Supreme Court case that talked about the right that gay people have under the U.S. Constitution to not be treated differently than heterosexuals without a legitimate reason. And there are some similarities between the two cases in the sense that they both dealt with changes to a state constitution and what kind of limits there are. And the other thing that’s similar is they both deal with the issue of how important equality is under both the California and the U.S. constitutions.
But the court here was not dealing with the federal constitution and we intentionally brought the case only under the California Constitution because we continue to feel that the U.S. Supreme Court is quite conservative and that one has to think pretty carefully before bringing cases that may go up to them, and we particularly thought that they weren’t quite ready for a case that posed the question of whether the federal constitution has to allow same-sex couples to get married. And we thought that it would be difficult to attack the measure here without that question also being raised to some extent if there were a federal challenge.
TILLERY
Jenny. Our next question comes from a Liberty Circle member in Seattle. If we win, is this the end? Can anyone appeal this or bring another case against marriage equality like to the U.S. Supreme Court? Can the other side keep bringing up ballot questions year after year to take our marriages away from us?
PIZER
Well, I think the answer to that depends on what kind of a decision we get from the Supreme Court. It would depend what they say. I think if Prop 8 is struck down on the grounds that we’ve presented, that the initiative process cannot be used to target a vulnerable group, along lines such as sexual orientation, to take a fundamental right away, if that’s what the court were to say, then another measure like that could not be brought again. Or if people brought it, it could be easily knocked out because it would be contrary to what the court said.
In Massachusetts when gay and lesbian couples first were able to marry there, there were some federal cases that were brought to try to stop that, and they were not successful.
But, it is hard to guess what might happen next. If this does not go as we hope and Prop 8 were to be upheld, we have thought that the next steps would be a ballot measure to reverse that since the vote was relatively close.
I do think that, whatever happens the court’s decision will tell us things about the initiative process that we just didn’t know before. That’s what’s been both challenging but also incredibly exciting about this legal work. We have been plowing some fresh fields, if you will, and have had to go back to basic principles, basic constitutional principles and political philosophy, “What is the constitution for? How do we understand what balanced government means?” and think through how to articulate those basic principles to the court and try to be creative as well as persuasive since it’s a new area.
And so I think that underscores why we don’t want to draw too many conclusions from the questions that we heard today because many of the questions – it was really not about probing details of the many relevant precedents because, as I said, there aren’t that many relevant precedents. It was really more trying to probe what was intended when the initiative power was created and given to the voters in 1911. What was that about? And how should we understand what it means today and what the consequences would be, and if the consequences are terrible, then what the remedies would be.
So the tea leaves are really not very clear at this point and the next steps will be determined a lot by the analysis that we get from a majority of the court. And of course it’s possible that we might have a plurality decision, meaning that there might not be four justices who all agree. And if that were to happen, and that sometimes does happen when you’re in a new area of law, then that means it continues to be a bit complicated until there’s a clear majority view about how this question should be understood.
DAVIDSON
Let me just clarify one thing though, that if we do win, the proponents of Prop 8 cannot take the case directly up to the U.S. Supreme Court. The California Supreme Court has the final word on what it is that the California Constitution provides. And this again was a challenge only under the California Constitution.
TILLERY
Great.
DAVIDSON
But it also means, if we lose, we can’t take it up to the U.S. Supreme Court. Rather, as Jenny was saying, our next move would be to go back to the ballot box.
TILLERY
So our next question comes from a Liberty Circle member in Chicago. Jon, can you offer your thoughts on the lawsuit filed this week by GLAD on behalf of federal marriage recognition of Massachusetts marriages? Does this challenge to federal DOMA have any bearing on the Proposition 8 case? And what federal benefits are at stake?
DAVIDSON
The suit that was filed by Gay and Lesbian Advocates and Defenders is a lawsuit about the federal government’s denial of marriage-related protections, benefits and responsibilities to legally married same-sex couples. It’s about whether the federal government can provide benefits to some legally married couples that it denies to other legally married couples. Or, in other words, when a state allows both same-sex and different-sex couples to get married, can the federal government distinguish between those in terms of the federal rights and benefits that are provided?
That’s a very, very different question than the case that was argued today. Our case is about a state marriage law and state rules about changing the state constitution. GLAD’s case is instead about how the federal government treats one class of married people.
Now the case that GLAD brought was a case that they’ve been working on for several years and it looks at the federal constitution as opposed to the state constitution. The issue there has to do with the federal government traditionally leaving marriage law to the states. In our federal system of government, the federal government historically has deferred to a state determination of who’s married or not.
But I think one thing that’s similar to Prop 8 and to the federal Defense of Marriage Act is that they’re both extraordinary measures. That’s something that should make courts suspicious of what’s going on. The fact that Prop 8 is unprecedented means that not only is there no case law that directly speaks to it, but it’s something to be worried about when the voters do something that they’ve never tried to do before. Similarly, the federal Defense of Marriage Act is unprecedented in the federal government refusing to recognize certain marriages that a state had allowed.
But I do think it’s important that people understand there are very different questions that are posed by the two cases.
Lambda Legal and the ACLU and National Center for Lesbian Rights and even GLAD, we’ve all taken the position for a long time that any federal cases have to be very well thought out before they’re brought. And GLAD has fashioned its case very carefully to not pose extraordinarily broad questions about what level of scrutiny gets applied to sexual orientation discrimination under the federal constitution and definitely not to raise the question of whether or not under the federal constitution there’s a right to marry.
So their limited question is, does Section 3 of the Defense of Marriage Act, which says that the federal government will not honor marriages between same-sex couples that were lawfully entered, does that part of the Defense of Marriage Act violate equal protection guarantees in the Fifth Amendment to the U.S. Constitution by singling out one class of marriages for disrespect and then denying same-sex married couples the rights that are provided to other married couples by the federal government.
TILLERY
Thank you.
Jenny, an online activist in California wants to know: Will my marriage be revoked if Proposition 8 is upheld? I heard that those couples that were married will be able to stay married. Does the new law allow our marriage to be grandfathered in? If not, should we sue in federal court? And they said thank you for your hard work.
PIZER
Well, that’s a lot of questions.
So, of course we don’t know until we get the decision. But as I mentioned before, there were two different questions that the court was considering today. The question of whether the existing marriages remain valid and respected in California is a separate legal question from whether Prop 8 as a whole is invalid.
And my sense was, and the sense can be misleading, but my sense was that there’s more consensus among the justices that the existing marriages should remain valid regardless of whether Prop 8 might be valid looking forward. There are different legal doctrines there.
Some of the questions that kind of gave a hint in that direction were questions from the Chief Justice who asked, for example, “What if the rule was that 18-year-olds could marry and then the people decided that these kids are making bad decisions and the legal age for marriage should be raised to 21, would that mean that couples who validly married younger than 21 should then be deemed not married anymore? And what about couples who were more closely related by blood, maybe first cousins, and married validly, and then the rules were changed, would you apply the rule looking backward, retroactively, to deem them not married?”
And just from the way the question was asked, it gave a hint. And again, I just stress that hints can be misleading; but it did give a sense that that idea was very troubling. And it does go contrary to some settled principles in the family law area that you don’t take vested rights away from people. And if you do, you have to call it out to the attention of the people who are voting on that rule change, usually it’s the legislature, but with an initiative, it’s the people who are acting as legislators. You need to call out to their attention before they vote that the proposal is to take vested rights away from people. And you need to do it in very clear, unambiguous language.
So there was quite a bit of discussion in the latter part of the hearing this morning about things that might be considered ambiguous both in the language of Proposition 8 but also in the ballot materials. Justice Kennard, for example, at one point – actually in a couple of points – referred to language in the rebuttal, the ballot language of the proponents of Prop 8. They made some arguments, and she described them as being buried in the middle of the rebuttal argument, saying “Do we really expect that the voters look at that?” And Ken Starr gave an answer to that. But it seemed like a suggestion that maybe her sense was that it wasn’t clearly drawn to the voters’ attention.
So it certainly may be the case that the existing marriages are going to be deemed to have continuing validity even if Prop 8 is upheld. If that weren’t the case, of course we would think about what options exist and things that might happen next. It seems to me it’s way too early to say much about that because we don’t know what the court is going to say, but there seem to be some positive tea leaves today.
TILLERY
So this is becoming a very interactive process here, Jenny. We just got a tweet from [name withheld] who says, “Jenny rocks!” I thought I would share that with you.
Jon, we have another Twitter question from Iowa. Could a win in Strauss mean other states like Iowa may be less likely to reverse a marriage win by constitutional amendment? And more generally, how will Strauss impact the fight for marriage in Iowa and other states?
DAVIDSON
Well, as I think many people know, Lambda Legal argued our marriage case in Iowa to that state’s supreme court several months ago. That was a case we won at the trial court level and we’re awaiting a decision from the Iowa Supreme Court.
I think win or lose in this case, the underlying marriage case in California that sets forth certain principles about what the rights of equal protection and liberty mean are likely to be influential and helpful in the pending case which we’re waiting for the Iowa Supreme Court to rule on. And I don’t think a loss in the Strauss case, the case that was argued today, will mean much in terms of what the Iowa Supreme Court decides because the distinction between amendment and revision in the California Constitution doesn’t exist under very many other state constitutions. It doesn’t exist in Iowa.
In Iowa there are other sorts of protections that make it difficult to take away rights under the state constitution. And there were some allusions to that in the argument today, that California makes it much easier to amend the state constitution, that there’ve been more than 500 amendments to the state constitution. But what we think that shows is that that’s all the more reason why there need to be some restrictions on how easy it is to use the amendment process to take away fundamental rights from minority groups that have been subjected historically to discrimination without merit.
I do think that this is all an interrelated battle to some extent, but perhaps what will matter more is what the public reaction in California and across the country has been to the passage of Prop 8, which was really a remarkable outpouring of people who were angry and upset. In some ways it’s re-energized the struggle for marriage equality across the country. And I think if we win in California, energies will be directed to continue to secure marriage rights in other states and it will be important, that California will join Connecticut and Massachusetts and hopefully by then Iowa in allowing same-sex couples to marry. But if we lose, I think people will be so upset about that that it will carry forward the national resolve to bring marriage equality about across the country, something that I believe will eventually happen, that it’s really only a question of when it will happen.
PIZER
Yes, I’ll add just a thought on that. That just reminded me of a couple of colloquies that happened this morning that I thought were interesting. Different justices brought up the question of, “What if we were to not have marriage as the state’s institution, what if marriage was done by religious denominations and the state offered civil unions to everyone? Wouldn’t that make things simpler?” That to me seemed like an indication that some of them were finding themselves faced with some difficult questions and having a little wish perhaps that their job wasn’t so difficult today. Because, you know, there’s not any real likelihood that that change is going to happen in California or in other states either. The reality is that heterosexual couples for the most part cherish very much the right to marry and their marriages, and that civil unions wouldn’t have the same meaning to them.
I think what it highlights, one of the answers to one of those questions was that that change perhaps could be done in California, but it would have to be done for everyone. The constitutional problem that we have had in California that the Supreme Court recognized so eloquently and carefully in the decision of last May is that marriage is an esteemed institution and it’s offered to some and it’s denied to the class of gay and lesbian people, people in same-sex relationships, and that’s unequal.
And so the discussion and the acknowledgement that civil unions would need to be offered to all equally highlights, I think, a recognition on the part of the justices who were talking about this that civil union isn’t equality and this might be an interesting theoretical daydream to engage in about “what if things were to be changed and if the state were to do this as opposed to that?” But it isn’t what the state is doing. There’s no suggestion that the state would do it. And so in a situation where the state is in the marriage business, the phrase that somebody used this morning, then it needs to be in the marriage business equally.
Whatever happens in this litigation, I think that shows how far this conversation has come. And not just in California but it’s a conversation that’s happening all over the country. And the really extraordinary public interest in the argument that we had today, I mean I’ve never seen anything like it in terms of public attention and the number of people coming to San Francisco to watch it on a JumboTron screen outside. It makes a civil rights lawyer’s heart go pitter-pat to think that people want to watch a legal argument on a JumboTron screen. It’s not the Super Bowl. It’s a Super Bowl for constitutional law but it’s – it’s really interesting.
And so I think it’s a measure of how far we’ve come and the understanding that is seeping into a lot of places that civil union and marriage are different and that marriage is esteemed, and if we’re going to have civil union, it has to be the same thing for everyone, otherwise we have a discriminatory class system. And, in many corners of the country at this point, it’s well understood that this has been a society that does not embrace the idea of a discriminatory class system. That is one thing as a people that we rejected. We have rejected it and we’ve rejected it repeatedly, generation to generation. So we’re talking a language that many people can understand once they open their minds to the idea, to say something basic – that gay people are people too.
TILLERY
Jon, we have a follow-up from that last question. A member in Fort Lauderdale said, “I live in Florida where voters passed a similar marriage amendment to the state constitution as many other states have. Why didn’t the ACLU, Lambda Legal and NCLR challenge the amendments in Florida and other states?”
DAVIDSON
Again there was a challenge that was brought at one point; it was a pre-election challenge that was not successful in Florida. But Florida has even a less strong limitation on the use of the amendment process than in California. The issue of how you can go about changing your constitution varies from state to state and different states put forth different kinds of hurdles that need to be overcome before the state constitution can be changed.
It was our view that California put the most restrictions on what you need to do in order to be able to change the constitution by popular vote and that’s why we all focused on California. It was not that we don’t care about marriage rights in Florida, and we are doing lots of other work in Florida right now. We just thought it would be much more difficult to win in Florida given Florida’s existing case law.
TILLERY
Jon and Jenny, petitioner Karen Strauss is on the line and she wants to thank her wonderful lawyers for their superb work.
PIZER
We are very honored to have the opportunity to represent Karen Strauss and Ruth Borenstein who have been active contributing and wonderfully generous members of our community for such a long time in the different roles that they have played. And we are determined to do everything that we can to get the law in California to be what we all deserve it to be, so they will have the opportunity, as everyone should have, to celebrate their love by having the opportunity to marry. And we hope that happens sooner rather than later so that they can have that happiness and share it with members of their family.
TILLERY
Thank you, Jenny.
Our next call comes from a Liberty Circle member in Chicago. Jenny, they want some basic information about the composition of the court in California. How many justices were hearing the case?
PIZER
Sure. Well, and I would encourage folks who don’t have all those details right in the front of their brains to know that they can watch as much of the argument as they would like once the Supreme Court posts the video file on the court’s web site. And I would encourage people to do that. It will remain interesting in the days to come.
The California Supreme Court has seven members. As it happens, six of the seven were appointed by Republicans. Justice Carlos Moreno is the one Democratic appointee. The court is generally seen as a moderate to conservative bench and has tended to be fairly independent. And some studies have concluded, by studying published case law, that it is the most cited by far state high court in the country both in terms of being relied upon and cited by state courts all over the country but also by federal courts. So it is held in very high regard.
And because it’s seven justices, decision of a majority is made up of four. We had a four-to-three victory last May. And of course we will be happy to have a decision in this instance that has four. As long as we get four out of seven votes, we’ll be happy.
TILLERY
Jon, a member in Bakersfield, California wants to know if the California Supreme Court ultimately upholds Proposition 8 what impact that would have on those in California registered domestic partnerships who now enjoy all the rights and benefits afforded to California marriages? Does Proposition 8 invalidate domestic partnerships?
DAVIDSON
Let me answer the second one first. No, Proposition 8 does not affect registered domestic partnerships. So people who are in registered domestic partnerships will still be in registered domestic partnerships regardless of how the California Supreme Court rules. But one of the things we worry about is, if Proposition 8 is upheld, it means that there’s nothing in the California Constitution that would prevent someone from trying to put on the ballot and the voters from passing a measure that would put an end to domestic partnership benefits and rights, and that would say, “No, same-sex couples don’t have the right to enter into domestic partnerships.” So it continues to be an important question. But Prop 8 does not do that.
Now the question of whether registered domestic partnerships provide all of the rights and benefits of marriage was what was litigated in the past marriage cases. And the California Supreme Court in that case said that while a domestic partnership provides most of the substantive tangible rights that marriage provide, it doesn’t provide all of them. But, even if it did, not being provided the name of marriage and being relegated to a different institution, was a violation of the right to equality and a denial of what is an essential component of the right to marry, which is the right to a status of equal dignity to what marriage provides.
People I think understand that a domestic partnership is not equal to a marriage in terms of how it’s treated in society, how it feels to the couple, or the message it sends in terms of whether people in it are equal in all ways to people in marriage or instead are being told, “You can’t have what we reserve to heterosexual couples.”
TILLERY
Great. And we’re in the last five minutes so we’re going to squeeze in two final questions.
Jenny, a member in Dallas says, “Much has been made of the role that religion and specific churches played in the passage of Proposition 8. If Proposition 8 were ruled invalid, would churches in effect have to perform or recognize marriages of same-sex couples? And have we done enough to educate people of faith on this matter?”
PIZER
I would say the answer is no and no. No, the churches or religious leaders cannot be required to perform a religious marriage for anyone when they don’t want to, if it’s contrary to their religious teachings or for any other reason they don’t want to. That is absolutely protected as part of religious freedom. Much was said about that during the Prop 8 campaign. It was incorrect information. It appeared to have misled people. But it’s just false.
But that does lead to my second “no,” which is that we have not done enough to educate the public that religious leaders cannot be forced to perform a marriage if they don’t want to, and that churches that refuse to perform marriages will not lose their tax status. And something that seemed even more outrageous that I heard said, preachers who say anti-gay things from the pulpit might be subject to anti-gay hate crime prosecution. That’s complete and total nonsense.
But I think some people were worried about those charges; they didn’t know enough. And so we all do have a lot of work ahead of us. That’s true regardless of whether Prop 8 is upheld or not. There were 52 percent of the population in California who voted in favor of discrimination with Prop 8. And even if it’s struck down, we have a lot of people that we need to convince that they care about equality, and that discrimination is wrong. And we need them to agree that equality is important for everyone including LGBT people.
TILLERY
So, Jenny and Jon, that’s a beautiful, segue to our last question which is: What is Lambda Legal planning to do next? And what can I do to help?
DAVIDSON
Well, we’re continuing our work to educate the public on marriage equality issues. We’re continuing to do a wide range of work to protect people in same-sex relationships and to protect all families, as well as our work on workplace issues, on youth in schools, youth in out-of-home care, transgender rights, rights of people living with HIV. We’re working on all civil rights fronts.
Marriage has been and will continue to be an important issue because of the way in which it signifies whether people are fully equal members of society. And so, we will continue to be fighting for that around the country. We’ve had a series of cases in New York about whether New York will honor the marriages that same-sex couples entered in other states. And we are continuing to litigate that.
And if Prop 8 is upheld in court, we will be actively trying to educate the public in California about why Proposition 8 should no longer govern and why marriage is so important and equality is so important that the voters should do something different and return to the ballot box to correct this injustice.
So what can people do? They can become members of Lambda Legal. They can look for our appeals online and in our publications, to engage in various kinds of advocacy. They can educate themselves. But the most important thing I think that people can do is to talk about these issues, to talk to their friends, to talk to their family members, to talk to the people they work with, to talk to their neighbors. And get them to really grapple with the issue about why should some couples be allowed to marry and not others? And to ask the people who are married, “How would you feel if you were told you couldn’t get married though everyone else could, but you were going to be confined to some other institution? Do you think that would be right? How would your marriage be affected if same-sex couples can get married?” And really engage them and try to hear what it is that’s concerning them and to address that so that we do change people’s understanding of the issues here and get them to be supporters of marriage equality and equality for all LGBT people.
PIZER
I’ll just add one concluding thought. We had this intense moment today of focus, people around the country focusing on this case and this issue. But this is a long-term civil rights movement. It has many moving pieces all over the country all the time. And each of us has a role to play. Maybe it’s coming out as a gay person, maybe it’s coming out as somebody who cares about gay people or who cares about civil rights, who’s willing to talk to other people, as Jon said. Also, each of us has a responsibility to take steps to protect our family members in the ways we can wherever we live. Maybe it’s preparing legal documents. There may be a number of things to do, but we need to do those things.
The main thing is we need to invest in this movement personally – with our energy, with our finances, with our optimism and our determination that it is a long-term struggle. But we’re making extraordinary progress. And that’s true whatever happens with a particular case. This one’s very exciting, we’re paying attention to it now, but our work is happening across the country at all times, and everybody who’s interested has an important role to play.
TILLERY
Thank you so much, Jon and Jenny.
That ends today’s members’ briefing on this exciting day. These telephone briefings are part of an occasional series to keep our members up-to-date on important developments in our work. We’re thankful for your support of our programs.
And if you’re not already a Lambda Legal member because you joined this call through our special offer to Facebook fans and other folks from other social networking sites, we encourage you to become a member at our web site, lambdalegal.org. We would appreciate any feedback you might have on today’s briefing. Please e-mail any comments or suggestions to libertycircle@lambdalegal.org.
Thank you once again for your commitment to Lambda Legal’s mission. Good night.