The U.S. Supreme Court announced Friday that it would review an appeals court ruling striking down Proposition 8, California’s ban on same-sex marriage. The high court also plans to hear a case on whether married same-sex couples are entitled to equal benefits. How are the justices likely to vote? And what will their decisions mean for California?

John Eastman, law professor, former dean of the Chapman University School of Law, contributor to one of the principal amicus briefs in the 9th Circuit and the California Supreme Court in the Proposition 8 case and founding director for the Center for Constitutional Jurisprudence
Kate Kendell, executive director of the National Center for Lesbian Rights, a legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families
Scott Shafer, reporter and host of KQED's The California Report

  • Beth Grant DeRoos

    To me same sex marriage is a constitutional right, that embraces the promise the founding fathers gave us with ‘life,liberty,pursuit of happiness’. Remember the founding fathers did not want a government religion. What if any role will the Tenth Amendment to the United States Constitution, play since this is a states rights issue in many ways. Thus the court could rule that the CA Supreme Court giving same sex marriage rights,should be the law for our state.

    And it puzzles me when conservative christians (as an example) say that same sex marriage will weaken marriage, because, heterosexuals have weakened marriage over the last century with 50% divorce rates.

    As long as no religious officiant is required to conduct any marriage their faith does not agree with, whats the problem? As it is, some Catholic,Jewish, Muslim clergy already wont marry a heterosexual couple if one is not of the faith.

    • Jurgis Pilis

      You can believe that donuts are a constitutional right, that’s not gonna make it happen.

      • Beth Grant DeRoos

        One has a constitutional right to equal protection so if someone wanted to buy donuts and a business refused to sell to them because they were not white as an example, that would be against the law. So it would be a constitutional issue.

        • Jurgis Pilis

          Every business post the following notice “we reserve the right to refuse service to anyone”. So if you have no money, or no shoes and no shirt, or if you smell bad, or are hostile and agressive, or loud, or the server has an odd feeling about you, you can be legitimately denied your donut, be it white, chocolate, or poppy seed. You can get your donut if you follow the rules. By the same token you can get your marriage if you follow the rules.

  • Guest

    Doesn’t the concept of same-sex marriage inherently discriminate against hermaphrodites? Why not call it human marriage instead of referring to gender at all? (As opposed to interspecies marriage like you sometimes see like in Sudan or India where men marry goats, dogs etc.)

  • thucy

    I’d respectfully suggest that this whole “issue” of gay marriage is a red herring. I have some questions for your guests:

    1)  Why is the LGBT community trying to further entwine a dysfunctional religious institution (marriage) into the secular state? Why not do as they do in France – a total separation of church and state wherein the state ONLY performs civil unions for gays and straights, and if you just MUST have a “marriage”, you go to your priest-minister-rabbi. 

    I note that marriage rates for heteros in France have PLUMMETED because what everyone (in their right mind) REALLY wants are the secular, civil protections of a secular union, not a bridezilla complex for the LGBT community.

    2) Why is the largely white, largely middle-class LGBT leadership pursuing gay marriage as their #1 “civil rights” issue, rather than pursuing a genuine civil rights issue that will affect everyone in the LGBT community, e.g. protection for LGBT people against employment discrimination? or better health care for those in the LGBT community who aren’t white and middle-class?

    3) How did gay marriage come to supercede life-and-death economic issues such as affordable housing, employment, and a real social safety net for LGBT people (and everyone else?)

    4) How did gay marriage come to supercede life-and-death ACTUAL civil rights issues, e.g. the full-on destruction of the African-American community by the drug war/prison industrial complex? I don’t see my Democratic reps crying any tears over the fact that, thanks to a racist “100 to one” sentencing ratio for crack to powder cocaine, we now have more African-Americans in prison today than were enslaved in 1850. (Why not? Cuz baby, ain’t no donations to Mesdames Boxer et Feinstein coming out of Pelican Bay solitary confinement ward! But there are some juicy donations to Dem reps from wealthy, gay tech entrepreneurs. Ka-ching, ka-ching!)

    Bottom line: white, middle-class LGBT “leadership” is just out to make a buck. Problem is, too many poor LGBT folk are paying for something they will likely never use because marriage is inherently a means for the middle class to preserve wealth, not a means of empowering the poor, e.g. the larger LGBT community. 

    Alas, LGBT folk are just like straights – dey’s so ashamed of their poorer cousins, dey’s don’t wanna admits dey’s related!

  • Jurgis Pilis

    The Califirnia Constitution clearly states “only a marraiage between a man and a woman is recognized the the state ..”. Both governor Brown and AG Harris took oaths to protect and defend the California Constitution. But when the legal challenge came against the Constitution (it’s not about Prop 8 anymore ) both Governor and Attorney General turned tail and “ran for the hills”. And it was left to a small group of dedicated people name “protect marriage .com” to defend the State Constiitution. Regardsless of what the issue may be, are Brown and Harris violating their respective sacred oaths of office?

    • Sandy B.

      The Governor and AG were acting (or rather, chose not to act) based on their sense of justice and moral conscience. I am proud of them for this. We should not obey laws that are unjust and do harm. Kudos to them both, and down with Prop. 8. P.S. I’m in a heterosexual marriage, FWIW.

    • Beth Grant DeRoos

      The Governor and Attorney General have NO obligation to support any law based on voter approval that denies any California specific rights.

      You seem to be suggesting if the voters voted to go back to segregation that this would be ok. Or if voters wanted to go back to laws that said if you were a certain race, ethnicity, religion you could only live in certain areas.

      • jurgispilis


      • Jurgis Pilis

        So the gov and ag can pick and choose which laws to enforce? That’s dictatorship.

        • Beth Grant DeRoos

          So if the voters voted to go back to segregation,that would be ok with you? And the Governor and Attorney General would be wrong to say no to that idea?

          • Jurgis Pilis

            But we have segregation today. Men’s restroom vs. women’s restroom; smart kids in advanced class vs. less smart kids in less advanced class; rich flying 1st class vs. you and me in economy; tall athletes get picked for basketball team vs. short athletes run track. ; Indonesians in Indonesia vs. Russians in Russia. We have and we always will have segregation. Face of life. Elected executive officials need to enforce all laws, even those with which they disagree. Judges, however, can often override the will of the people, but not the Executive.

          • Beth Grant DeRoos

            I fly first class and sometimes economy. Anyone can. There are unisex rest rooms.

            There are shorter basketball players and much tall athletes that run track. As long as you can do the job well they hire you.

            There are non Russians in Russia and non Indonesians in Indonesia. What does this have to do with equal protection for all who wish to marry?

            When the court ruled whites could marry non whites, did you agree or disagree? After all one could argue that there are plenty of folks within a given racial group for one to marry.

          • Jurgis Pilis

            Oh, are you talking about race-based segregation? Yes, I oppose race-based segregation, but I acknowledge that segregation exists today, and is sometimes protected by law. With the caveat that this division of humans in 3 arbitrary racial groups based on physical traits and biology is arbitrary and silly, I agree that member of one racial group can indeed marry a member of one of the other 2 racial groups. I think the fact that a sexual union of parents who are members of different racial groups can indeed reproduce healthy, fertile offspring, can be regarded as a validation of this.

    • Carolillouz

      Please can you read the story of the 7.5 amendment to the Californian Constitution. As so many speaking without researching but rather by repeating everything that fit their comfort zone…I ‘m easing your task……:” Proposition 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment; originally titled the “California Marriage Protection Act”)[21][22] was a California ballot proposition that sought to change the California Constitution to add a new section (7.5) to Article I, that would read: “Only marriage between a man and a woman is valid or recognized in California.”[2][3][4] This change would restrict the definition of marriage to opposite-sex couples, and eliminate same-sex couples’ right to marry, thereby overriding portions of the ruling of In re Marriage Cases by “carving out an exception to the preexisting scope of the privacy and due process clauses”[23] of the state constitution.” for more Go Wikipedia….

  • Chiao Su

    Comment on Judge Walker’s decision:

    If judge walker can be criticized because he is gay and might benefit from ruling, then any heterosexual judge who makes a different ruling can also be criticized as well since they will also benefit from the ruling?

    And if the heterosexual judge don’t benefit from the ruling, what’s the argument for prop. 8?

  • Could you ask the Professor if the ban on same sex marriage violates the religious clause of the constitution? There are several religions, including the native American faiths, as well as the Jewish faith where such marriage’s are permitted as well as sacred. Not to mention the buhdist faith, if I remember right,…

    • thucy

      gay marriage permitted and sacred in “the Jewish faith”? and your source is…?

      there are plenty of rabbis (and priests of many faiths) who are happy to marry gay couples, which is great. but (at last check) ain’t nothing in the Talmud/Jewish law sanctioning that.

      also: please note that the “buhdist” (I think you mean buddhist) faith is, as with other faiths, not practiced uniformly.

    • Jurgis Pilis

      Then thtere is the support for plural marriage by tht Morman faith and LDS Church. The federal govt would no let Utah into the Union unless a ban on plural marriage was included in the state constitution. I guess that action set a precident for govt involvement in maggiage laws.


    How can Prop 8 be upheld when its roots are based on a biblical definition of marriage? Am I not understanding the issue?

    • Beth Grant DeRoos

      GREAT observation! Not only that but reading History of the Wife by Marilyn Yalom ones finds that heterosexual marriage was originally about protecting the male/husbands property rights, as in man and wife, not husband and wife. This is no longer the case.

      • jurgispilis

        That’s it – it’s about wealth distribution!!!

  • michael

    the argument of an inability to procreate seems slightly trite, as there are hundreds if not thousands of hetero couples who cannot in fact procreate, but are still legally married. and homosexual couples do not only have the option for adoption, many lesbian couples have the ability to carry child, so that again, debunks that basis for argument.

    • hex4def6

      I don’t understand why this fecundity argument keeps showing up. If Prop 8 proponents really were serious about fertility as a requirement of marriage, then a fertility test would be a required part of a marriage license.

      • Diana


      • jurgispilis

        Or why should non-consumation be grounds for divorce?

  • Guest

    Following Professor Eastman’s logic: heterosexual couples who marry and choose not to procreate…who marry for love of one another…should have their status as being “married” revoked and replaced with being civilly united. Anyone want to vote for that? Didn’t think so.

  • Karl

    The on air discussion granting only straight couples be allowed to marry because they can naturally reproduce is bogus. What about straight men and women who become steril. This is often a personal choice, and often a health necessity. Those straight individuals would no longer be able to marry then or would have to have their marriages voided.

  • Tim

    What happens when we have the new normal a lesbian couple with a gay couples having a baby. So we are procreating throw that into the mix.

  • James Ivey

    Procreation as the raison d’etre of marriage is a blatant red herring. We don’t bar infertile couples from marrying. We don’t bar people who don’t intend to have children from marrying. And, when it’s time to apply taxes to a surviving partner, we don’t look back to see whether the couple ever had children.

    What’s really interesting here is the reversal of typical conservative and liberal arguments. The liberal argument here is uncharacteristically simple, absolute, and clear: people should be allowed to marry and form a household with whomever they love. The conservative argument here is uncharacteristically scattered and all over the place, as if trying to kill same-sex marriage by a thousand cuts.

    • Guy

      Apologize for the delayed response here. Part of the failure of the procreation argument is that “procreation” is not simply a matter of the short first step of 9 months of pregnancy after which a body is spit out the birth canal. It involves maybe 2 decades of nurturing and preparation for adulthood in modern society. If adoptive parents and step-parents are good enough for “marriage” then same-sex parents certainly qualify (especially if one of them is indeed a biological parent, with artificial insemination or surrogacy).

      Marriage is about “family” however that occurs, and childless parents are not disqualified in creating “family” and neither are non-biological parents. Same sex parents often have to be very proactive in order to become parents, and thus there is a self-selection effect that is missing from accidental parents who may not be very good nurturers.

      The focus on strictly biological parentage is no more than a fetish in modern society. And the focus on parenting as being a necessary criterion for “family” is equally confining.

  • Mike

    How is it that the term “marriage” has become synonymous with procreation just because it so happens that a majority of married couples do procreate? I have straight friends who are married that choose not to, or are unable to have children biologically, does that mean that they should not be considered as “married” by this conservative societal definition? Marriage is a commitment between two people, not a prerequisite to make babies. This argument is completely preposterous.

  • Rodney

    Isn’t marriage threatened because couples can’t get along? Not because divorce is “easy” or that the couple are of the same sex?

    Is a marriage okay just because it exists or because it is a good marriage? I say a bad marriage between any type of couple is bad and should be disolved.

  • David

    This argument that marriage is about creating an environment for procreation does not make sense. My wife cannot have children, it is a medical impossibility. Following Mr Eastman’s argument we should have been required to disclose that when we applied for a marriage license and should have been rejected. Does John Eastman think that would be a legally acceptable position at either the state or federal level.

  • Rodney

    So should a hetro couple that do not plan to have children be denied a marriage license?

    • John Landry

      would the show’s guest, by his own logic and defense of hetero-marriage, then have all childless marriages dissolved?

  • Kristen

    What happens to married, heterosexual couples, when one of them later recognizes he/she is transgendered and has reassignment surgery? Are they no longer recognized as married by the federal government?

  • IQ

    In the 1800’s poor people couldn’t marry rich people, in the early and mid 1900’s interracial marriages were not allowed.
    2012… Same sex marriage is being demonized as a destructive force of the marriage institution.
    So here we are again, dealing with a group of people imposing their righteousness and stripping some minorities from their basic human rights.

  • N. Bruce Nelson

    For those who might think that the pro LGBT marriage argument is not a Christian position, I would like to point out that the president of the very first gay rights organization in the US, the Society for Human Rights, established in Chicago in 1924, was a Black Christian minister, the Rev. John T. Graves.

    Bayard Rustin ( was a notable Christian who fought for all sorts of civil rights, including those of LGBT people.

    A current Christian statement on gay marriage that has been signed by hundreds of pastors in the US Midwest, from many denominations, is the Heartland Proclamation. (

    It is significant to note that given the percentage of Christians in each of the states that recently approved gay marriage that this could not have happened without significant Christian support.

  • Diana

    All marriage should be declared unconstitutional in order to even the playing field. As a non-religious never married heterosexual who has reproduced, I would no longer be an outsider.

    • jurgispilis

      The government should get out of the marriage business, like France. Only grant ‘civil unions’ between any 2 persons be they boyfriend-boyfriend; mother-son; brother-sister; girlfriend-girlfriend, etc. No blood test; no AIDS test; no age prerequisties; no blood on the sheets;

  • Carolillouz

    I’m appalled by the arguments against marriage equality. I was married with a man , and I’m a woman,,,,I never took any vows that includes procreation, I vows to take care, love in illness and health etc….I never vows to procreate. Furthermore, my marriage was civil, opponent to marriage equality infused religious ideology in their arguments, and we are not rules by religious laws. In addition, we are witnessing two approaches here, one is restrictive, the other one is open symbolizing freedom against obscurantism. This country is built on freedom, everything else is really against the soul of America, Freedom is what the opponent of same sex marriage are against.

    • jurgispilis

      Marriage has never been about equality. It always has had prerequisites.

    • Guest

      The USA took in many immigrants who did not agree with the original values that are expressed in the Constitution. Many arrived here with shallow, contradictory views e.g. wanting freedom for themselves, but not for others, or wanting money for themselves, but not prosperity generally. A lot of flawed people came to the USA, and their lack of rigorous intellectual support for freedom became expressed everywhere. We are not a nation of philosophers, and many forces (the 1%, the religions) are working hard to ensure we remain intellectually hobbled.

  • geraldfnord

    I’m concerned that, given Obama’s re-election and so the good chance that one of them might be replaced over the next four years, the majority conservatives are trying to strangle same-sex marriage in the cradle while they still can.

  • jurgispilis

    Is there a hidden agenda in the same sex marriage movement, that’s not being discussed.? Does that agenda have anything to do with wealth distribution. I can recall two examples of previous times in history when marriage institution was manipulated. One example was the Edict of Nantes when the Catholic Church denied priests the ability (not right) to marry, thereby insuring that the wealth of every priest would revert to the Church upon death. My second example involves the Mormans. From 1848 to 1896, Utah was denied statehood three times before that State brought it’s marriage laws into conformity with the traditional form followed by the other States of the Union. It was only when the Utah State Constitution banned plural marriage that Utah became a state in 1896, almost 50 years after the first petition for Statehood. This set a precedent for marriage laws being specified by a state constitution. Now, why would the federal government care what marriage laws the people of Utah chose to enact? What was the ‘hidden agenda’? I suspect that plural marriage manipulates the class hierarchy, weakening the middle class, and distributing wealth upward to a small elite, and concentrating power in a few.

  • Beth Grant DeRoos

    Am I the only one who finds it interesting that folks like Newt Gingrich and Rush Limbaugh can cheapen marriage by being married three times, yet same sex couples who have been together for years or decades are looked upon as inferior, yet take their unions more seriously?

    • Jurgis Pilis

      Liz Taylor married 7 different men 8 times. I don’t believe anyone holds that against her.

  • ZincKidd

    So what, exactly, are the legal definitions of man and woman? Seems to me that is not anywhere nearly as cut and dried as many people seem to think it is, given that with pretty much any definition you can name there are examples of individuals in which it is ambiguous. Including DNA, as there are individuals with two sets of DNA which can be of differing genders– and even a few examples of individuals with an ovary on one side of the body and a testicle on the other. Should some individuals get a “wild-card” and be able to choose either gender to marry, or are there some individuals who shouldn’t be allowed to marry anyone at all? If so, why?

  • lfivepoints69

    It’s insane that in 2012 some people still don’t believe people should be able to choose who they marry.

  • dgirlinpink

    The procreation
    argument is ridiculous… so will we ban anyone older than 50 from marriage
    because they are not procreating? Should we ban those who have had a vasectomy
    or use birth control from marriage. Ridiculous argument.

  • jurgispilis

    Does a same sex marriage need to be consummated?

  • Jeffrey

    Does anyone believe that the “Mary” in “Virgin Mary”, husband of Joseph and Mother of Jesus Christ, have any relationship to the use of the word “Marry” to Wed? If you believe there is, then the use of the word Marrage, in Same Sex Couples, would violate propriety.
    Are there any single judges, homosexual or heterosexual, that are not in any relationships, that could render a decision? In order to be completely free of bias and be totally objective.
    Domestic Partnership always worked in the past. Could Federal Gov. start printing Domestic Partnership status on their tax forms and other legal documents.

  • badlaw

    It seems like Kate Kendall is more-or-less bored by the process and only cares insofar as it reaches her desired end-result. It’s a little difficult to listen to her activist-speak because it’s so transparent. It’s better (and easier) to constantly play up the cynicism of arguments that incubate the anti-SSM sentiment so that people don’t get too curious in them. Civil-procedural issues like standing and recusal, earnest arguments like the complimentarity of the sexes and popular sovereignty, and judicial efficacy issues like the state and federal government refusing to defend laws duly passed out of political gain sound like nonsense to people who have already made up their minds. But to people on the fence, they might start to investigate to see how valid these arguments are and start to question the proponents a bit more.

    Though I’m opposed to SSM, I’m sympathetic to some of the human-dignity social arguments she makes. The only problem is the court isn’t the forum for those arguments because they have nothing to do with the Constitution.

  • Sarah Williams

    I’m in a marriage, I have a kid. I intend to have another one.

    That. is. not. the. purpose. of. my marriage.

    If my most perfect partner had been a woman I still would have had children.

    Some of the best parents I know are lesbian couples.

    If having kids is the purpose of marriage barren or infertile people should not be able to marry, women who have gone through menopause without having children should have their marriages revoked.

    The institution of marriage is the need for people to come together to build a family. A family is not defined by having children.

    It is possible that in times when it was financially beneficial to have children, and where overpopulation was not an issue having kids might have been a bigger part of marriage. But that is not currently the case.

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