Fight is Not Over Against California's Proposition 8
CHETRY: It's 13 minutes past the hour now. Welcome back to the most news in the morning. Same-sex marriage supporters are celebrating in California this morning after a federal judge's decision to overturn California's Prop 8, a state ban on same-sex marriage. Still getting reaction on both sides of the debate. Let's listen.</s>UNIDENTIFIED MALE: Just a great moment today, because now we're a giant step closer to restoring that basic freedom of marriage in California.</s>UNIDENTIFIED MALE: It's a great tragedy. It's a fantastic attack upon our nation, our children, on our families. So hopefully, we'll have to rely on the Supreme Court now to save the nation.</s>UNIDENTIFIED FEMALE: It's really hard to talk because I'm so excited and so happy. Earlier today I was shaking because I was cold. Now, I'm just shaking out of joy.</s>CHETRY: Well, groups in favor of the ban are vowing to appeal the judge's ruling before the ink even dries. John?</s>ROBERTS: Legal representatives on both sides of the Prop 8 debate can agree on one thing. This fight is far from over. For more, let's bring in former New York prosecutor and criminal defense attorney Paul Callan. Paul, great to see you this morning.</s>PAUL CALLAN, CRIMINAL DEFENSE ATTORNEY: Nice to be here, John.</s>ROBERTS: So this is pretty heavy reading here. It's 136 pages that actually goes thump when you drop it. But it's very interesting when you read through his findings and fact-based arguments for the decision. One of them says the court determines that the plaintiffs equal protection claim is based on sexual orientation, but the claim is equivalent to the claim of discrimination based on sex. He's put those two things together?</s>CALLAN: Yes, he has. This decision, 136 pages, big, big factual records supporting Judge Juan Walker's decision here. He's looking down to the appellate process which is going all the way to the Supreme Court. And I think what he's done here is he's laid out a very compelling case with evidence, with scientific support. Remember, proponents of gay marriage called 18 witnesses in this case, and they created a very lengthy record. Opponents of gay marriage only called two witnesses, and their case was a very, very sparse case in terms of actual evidence presented. So if you just weigh the amount of evidence on both sides of the question, the proponents of gay marriage really carried the day in the court.</s>ROBERTS: When you take a look at how sort of, quote, "thick this is" with fact-based evidence, scientific studies, that sort of thing, as opposed to just a legal opinion, how do you think that will carry it through the appeals process?</s>CALLAN: Well, I think he's in very, very good shape. When I say "he," the judge, in terms of upholding the pro-gay marriage decision. Remember, it's being appealed to the 9th Circuit Court of Appeals which is a very liberal court which has been favorable on these sorts of issues. So I think he's created a good record. It's likely he'll be sustained at that level. But you know, once you get to the U.S. Supreme Court, then that depends upon how many conservative justices there are, how many liberal justices there are. And you may have a whole different situation there.</s>ROBERTS: But this fellow is a conservative justice. He was appointed by George H.W. Bush in 1989. He's taken to be something of a libertarian as well. So do you think that his arguments, at least, will be reflective by some of the conservative justices on the Supreme Court?</s>CALLAN: Well, they may very well be. Because one of the interesting arguments he makes is he says that the constitution says that if you're going to pick out a group and discriminate against that group in some way. Like For instance, kids. We have laws saying that kids can't drive until they're 18 or 21 years of age, or they can't drink. You can single out a group if you have a rational basis for a different set of laws for that group. He says, with respect to gays in America, there's no rational basis to discriminate against them, to treat them differently with respect to marriage than non-gay individuals and heterosexuals. So it's the rational basis test and he makes a compelling argument that there's a violation of both the due process clause of the constitution and the equal protection clause.</s>ROBERTS: He also said that Prop 8 means that California fails to live up to its obligation toward all people in the state. Here's what he wrote. He wrote, quote, "Domestic partnerships do not satisfy California's obligation to allow the plaintiffs to marry." He went on to say domestic partnerships which were created sort of as a loophole around all of this, do not provide the same social meaning as marriage. So he's basically saying it's the state's responsibility to allow these people to marry and give them the same social standings as a man and a woman?</s>CALLAN: Yes, that's exactly what he's saying. But I think the other thing we have to fall back on and we have to understand that there are huge numbers of Americans who are strongly opposed to gay marriage. And those people would strongly disagree with this assessment. And what they would say is that there is nothing in the United States constitution that makes any reference to gay marriage. Indeed, it makes no reference to marriage at all. So where does this judge get off saying it's unconstitutional. I think, you know, the opponents say, hey, these are judges who are not elected trying to make laws. The majority of people in California voted against gay marriage. Where does a federal judge come off saying that the voters will be overruled? So this is a very, very heated discussion and debate among individuals interested in the question.</s>ROBERTS: So this is one state of 50. There are no federal laws regarding gay marriage, though there the Defense of Marriage Act. But when you look at him putting together this idea that not allowing gays and lesbians, same-sex couples to marry, equates to discrimination based on gender, it's the same sort of thing. And there are federal laws governing that. So, if the Supreme Court upholds California, this rumor, does it spread across the country?</s>CALLAN: Oh, it most definitely will spread across the country. But it's interesting how the Supreme Court handles big social questions like this. Usually, they will allow many of the state courts and many of the lower federal courts to make decisions like this. There'll be a New York decision, a California decision. And they kind of let it percolate in the lower courts. And then the case eventually, or many cases come up to the Supreme Court, and they make the big decisions. So I don't think you're going to see the Supreme Court jumping in on this immediately. I think it's probably going to be another couple of years. A lot of cases will be decided by the lower courts. And then they'll move in and make the big decision as to whether it's legal or not. Gay marriage in the United States.</s>ROBERTS: Well, that will give us two years of news to cover on.</s>CALLAN: Yes, it will, John.</s>ROBERTS: Paul, it's great to see as always. Thanks so much for coming in.</s>CALLAN: Nice to be here.</s>ROBERTS: Kiran?</s>KIRAN CHETRY, CNN ANCHOR: All right, thanks. And we also want to know what you think. The amFIX blog is up and running. We have been getting some comments. We'll read a few of them for you as well. You can head to CNN.com/amFIX. Also, U.S. and coalition troops in Afghanistan operating under new guidelines this morning. But what are the new rules of engagement? And will they make a difference? We're live at the Pentagon with more. Twenty minutes past the hour.