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SCOTUS Ruling: A Giant Leap Forward For Gay Marriage


This is TELL ME MORE from NPR News. I'm Michel Martin. Later in the program, we want to talk about a new TV show that has people thinking about how Latinas are depicted on TV. We'll head into the beauty shop for that conversation. But first, we are going to turn back once again to the Supreme Court, which released two major rulings today on the issue of same-sex marriage. The court struck down the Defense of Marriage Act, which has barred federal benefits to same-sex couples.

The court also headed same-sex marriage advocates what appears to be another victory in California. They seemed to have cleared the way for same-sex marriage to return to that state, where it has had a complicated and winding path in recent years. We wanted to talk about these important and complicated decisions, so we've called Joe Infranco.

He is a senior legal counsel at Alliance Defending Freedom. That's a conservative group that's played a major role in the Supreme Court case about California's Proposition 8, which banned same-sex marriage. Also with us is Professor Margaret Russell. She is a constitutional law professor at the Santa Clara University School of Law. Thank you both so much for speaking with us.

MARGARET RUSSELL: Good to be here.

JOE INFRANCO: Hi, Michel. Nice to be with you.

MARTIN: So I'm going to start with each of you and ask your opinion separately about the issue that I think most people are asking now, which is, what does this mean? Does this mean that same-sex marriage is now permitted around the country? Professor Russell, I'll start with you.

RUSSELL: No, the decisions today are huge and historic, but they do not rule that. I'll start with the DOMA decision, with the Defense of Marriage Act, which clearly does reach the subject matter of the discrimination of that law. And the court struck down Defense of Marriage Act, saying that because that law discriminated against same-sex couples who were legally allowed to marry in their jurisdictions and their marriages were recognized, it denied them dignity and personhood, but it didn't rest on a right to marry.

The Proposition 8 case, as well, did not rest on a substantive issue at all, rather the procedural issue with it, called standing. And in that case, the majority ruled that the parties - private parties challenging it actually did not have the right to challenge it, even on the first appeal in that case.

MARTIN: So what happens in California now? Does that mean that same-sex marriage is now restored, or does it mean that they have to go through another process again - the legislature, the governor, however it works?

RUSSELL: As is often the case with these Supreme Court decisions, there is a remand sending the case back down below, and so there are additional steps that could happen. Clearly, Proposition 8 is, as of today, not valid, and there is a ruling from the court today that says in returning the decision to the case below, you return it to the court that has already ruled Proposition 8 invalid.

As far as the resumption of marriages and the granting of marriage licenses, that will have to await further procedural steps that will probably involve the governor of the state of California, decisions about the issuance of licenses from clerks around the state and most likely, some other steps of litigation that might follow.

MARTIN: So Joe Infranco, clearly I want your reaction, but I first want to ask, do you agree with Professor Russell on this substance?

INFRANCO: Well, I - sure. I agree that, you know, there was no knockout punch, if I may put it that way. I think the robust debate will continue. And the Proposition 8 case, you know, is curious. I think what's going - what's going to happen remains to be seen. I think, initially, we can say it's very unfortunate that 7 million voters - over 7 million in California - were left without a voice. You know, there are many people who feel that marriage is a time-honored, universal relationship. It's unique. It's a relationship of a husband and wife.

That, you know, we can be civil, we can understand and respect the dignity of other types of relationships, but that doesn't necessarily mean that they are marriage. And, you know, to say that there's no standing simply means, as Professor Russell noted, that the Ninth Circuit's decision has been vacated and remanded. But I think there's a considerable amount of lawyering remaining. And actually, what's going to happen there is unclear.

MARTIN: Well, John Infranco, because your group has been active on this issue in the litigation, you've played a leading role in kind of the legal strategy here. What's your next step here?

INFRANCO: Well, of course, we have to digest the opinion. It's going to go back to the Ninth Circuit with instructions to remand. I think, in part, we're going to have to wait and we're going to have to react. I think there's an interesting overlay, you know, sort of in the whole matter. Both were five-four decisions.

Quite interesting how many major Supreme Court decisions are five-four votes. But, I mean, I'm looking at the dissent of Justice Scalia. I think that this, really, is the philosophical underpinning of so much of what we're talking about. Justice Scalia noted the court's errors on both points bring forth, from the same diseased root, an exalted conception of the role of this institution in America.

I think that people are wondering, what is the right role of the Supreme Court, what's the balance with the democratic process? And there's a lot that remains to be discussed on that ground.

MARTIN: Do you feel that the court got it wrong on both cases? I understand that you disagree with the decisions on a whole host...


MARTIN: ...of reasons,

INFRANCO: Well, I think - I think...

MARTIN: ...social reasons, political reasons.

INFRANCO: I certainly think they got it wrong on the Prop 8 case that there was no standing because the California Supreme Court granted standing to what was called the proponents of the initiative. They said the proponents, the people who had made the efforts to get this on the ballot, had a unique relationship to that. And again, it was kind of odd, you know, you had this alignment striking it down of the Chief Justice, Justice Scalia, Ginsburg, Breyer and Kagan.

So you had this kind of mix of the left and the right on this issue of standing. But what concerns us about that is, in this case, you had a constitutional amendment rightfully passed through the democratic process by over 7 million voters. You had an attorney general who simply said, I'm not going to defend it, even though I am charged, you know, by law with doing so. So the proponents stepped up.

Well, if the proponents don't have standing, then there's a kind of a nullification that can take place, and this can work both ways. I mean, you - somebody might like the results in this case, but boy, they had better be concerned about the process because it cuts both ways, where voters can pass an amendment and there's, quite literally, in the court's eyes, no one to defend it.

MARTIN: I credit both of you that this is a very interesting - these decisions are very interesting, both in the - which justices supported which decision and the legal reasoning. But I want to press again, Professor Russell, on the question of what happens now.

In the states where same-sex marriage is now legal, does that mean that couples are now able to receive all the benefits that mixed-gender couples get, that heterosexual couples get now - Social Security, access to survivor rights, and all those other things?

RUSSELL: Well, this is the huge part of the win here. The answer to that is yes, because of Edith Windsor's decision to challenge Defense of Marriage Act. And that decision touches only those couples who are legally married in their jurisdictions or are living somewhere where their same-sex marriage is legally recognized.

And for those couples, the difference is enormous because what it means is that the Defense of Marriage Act had prevented them from having a federally-recognized union, even though they were legally married to begin with...

MARTIN: So they can file their taxes...

RUSSELL: ...And that's all different. Yes.

MARTIN: They can file their federal taxes as married now?

RUSSELL: Yes, and I guess...

MARTIN: ...Whether that's a good thing or not.

RUSSELL: ...Happy filing, right?

MARTIN: Right.

RUSSELL: Yes, and be filing for the first time.

MARTIN: And what about in states where same-sex marriage is not now legal? What there?

RUSSELL: So this is - this is the narrow part of what happened today. Neither decision spoke to the central issue of any kind of fundamental right to marry, and it is true that both decisions declined to reach that issue. So what that means is that there will continue to be on-the-ground organizing and persuasion and public opinion, state-by-state, about the legality of marriage between same-sex couples in those states.

And I do want to point out something interesting, in response to my colleague, about the standing issue and the practical impact of this. The reason why standing was actually an issue in both cases was because in both situations, the federal level and the state level, the government officials decided that they thought that the laws were unjust.

So the Defense of Marriage Act was not defended by the Obama administration, as you know. Proposition 8 was not defended by the state of California, the attorney general. And that is - that development is extraordinary, as recognized by the court, but very much in line with what has been suggested should happen in the area of marriage equality, which is that attitudes change.

And as attitudes change among everyday people in the population, that will actually mean that they're not counting on a court to be some royal, hierarchical, moral decision-maker, but rather people are changing their minds. And that's finding its way into these decisions not to defend unjust laws.

MARTIN: We've been talking about the Supreme Court's decisions on California's Proposition 8 and the Defense of Marriage Act. The Court ruled on both those matters today. My guests are Joe Infranco from the Alliance Defending Freedom and constitutional law professor Margaret Russell. Joe Infranco, as Professor Russell said, this decision comes at a time...


MARTIN: ...When the polls indicate that attitudes are changing. So I wanted to ask, as a person who leads and represents a group of people who believe very strongly that this is the wrong direction for society, I want to ask you again, what do you do now? What's the...

INFRANCO: Well, look...

MARTIN: ...Logical place...


MARTIN: ...For you to address this?

INFRANCO: ...Look, marriage, you know, predates government. Marriage has been understood a certain way through history and you're talking about a trend that's less than essentially, about 10 years old. It's about 2003 since the Massachusetts Supreme Judicial Court decided Goodridge. So I mean, you're talking about very little time.

There are profound questions about whether government should lend its support and recognize a union that, by design, denies a child either a mother or a father, by design. And that's why 38 states have look at that and said, no.

MARTIN: I understand that...

INFRANCO: There may be...

MARTIN: ...No, I understand that.

INFRANCO: There may be...

MARTIN: I'm asking you what do you do now.

INFRANCO: There may be other ways to recognize, but I'm just saying, I think you have, you know, the trend swinging this way right now, but I don't think that that's - that this is - that we've arrived at some sort of permanent, you know, eternal truth. I think there's going to be a robust debate. It's a relatively new decision. And let me just point out, in the standing, I mean, for example, you could take this situation, like a state passes significant gun control measures, and you could have the governor and the attorney general say, well, we think this is unconstitutional.

It violates the Second Amendment. We're not enforcing any of this. Everybody can have any kind of gun that they want. Why, you know, I don't think my colleague would be pleased with that outcome. So I mean, you know, as I said, this cuts both ways. And we're a democratic, you know, these things are decided through a democratic process. And I think that that's an important part and this debate has to continue.

MARTIN: And I think the debate will continue. Thank you both so much for participating in this conversation today. That was Joe Infranco. He's a senior legal counsel at Alliance Defending Freedom. That's the conservative group that served as co-counsel on the Supreme Court Prop 8 case. He joined us from his office in Scottsdale, Arizona. Also with us, Professor Margaret Russell, constitutional law professor at the Santa Clara University School of Law. She was with us from member station KQED in San Francisco. Thank you both so much for speaking with us.

INFRANCO: Thank you.

RUSSELL: Thank you. Transcript provided by NPR, Copyright NPR.

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