Steve Zlick of Love, Honor, Cherish has written a guest post for Unite the Fight. Steve attended the debate Wednesday night between Gloria Allred and Andy Pugno, general counsel for Protect Marriage/Yes on 8. Here is his first-hand account.
Wednesday night, the National Center for the Preservation of Democracy hosted a debate on Prop 8 between the forces of good and evil. To be specific, it was Gloria Allred, attorney for landmark plaintiffs Robin Tyler and Diane Olson (present among the roughly hundred members of the audience) in their same-sex marriage rights suit against the State of California -vs.- Andy Pugno, general counsel for ProtectMarriage.com/Yes on Prop 8. Judy Miller of ABC news served as moderator.
The debate concerned the legal issues now before the California Supreme Court in pending lawsuits seeking the repeal of Proposition 8. As passed by voters on November 4, 2008, Prop 8 amends the state constitution such that only marriage between one man and one woman is recognized in California. The three legal questions being considered by the Court, and which were the subject of last night’s debate, are: a) Is Prop 8 an Amendment to OR a revision of the California Constitution? b) Does the passage of Prop 8 violate the separation of powers between the legislative, executive and judicial branches of government? and c) If Prop 8 is upheld, is its effect retroactive in regards to the same-sex marriages legally performed in California?
As objective as I tried to be during the debate, it seemed to me that Gloria pretty much mopped the floor with Andy. It wasn’t merely that he was soft-spoken and tenuous in comparison to Ms. Allred’s somewhat strident confidence, but the points made by Mr. Pugno for the "Yes on 8" side seemed to rely exclusively on the omnipotent right of the Will of The People to be expressed in the California Constitution, for which he provided no legal justification. Pugno repeatedly asserted that the electorate has a right to determine what our constitution says, and dismissed as insignificant the limitations on that right when it comes to revisions versus amendments.
Indeed, both sides acknowledged the current Supreme Court case pretty much hinges on whether Prop 8 was a revision disguised as an amendment, and no one quite knows where the Supreme Court will find that line to be. Allred asserted the Proposition is a revision because its limitations on the judiciary's rights to protect citizens under the Equal Protection Clause of the Constitution amount to a shift in the basic framework of government. Pugno proffered that Prop 8 is a mere amendment because the people have always had an endemic right to correct the judiciary.
As expected, his main legal reliance was on the 1973 voter amendment which reversed the Supreme Court’s finding that the death penalty was cruel and unusual punishment. It was a strikingly similar work-around to the current case (i.e, if the Court finds something unconstitutional, the voters simply change the constitution to say it’s not). But Allred adroitly pointed out the big difference: In 1973, the Supreme Court retained the power to determine death penalty matters on a case-by-case basis, but Prop 8 utterly strips the judiciary of its powers in regards to marriage rights.
Still, that voter change to the definition of cruel and unusual punishment and its limitation on the judiciary was upheld by the Supreme Court 35 years ago. The question remains where the Court will stand on the slightly different issue today.
Allred alleged Prop 8 did nothing to change the constitution’s fundamental guarantees of liberty, privacy and equal protection rights, which were the basis of the May 2008 Supreme Court ruling in favor of equal marriage rights for same-sex couples. Pugno had no response to the denial of fundamental liberty and privacy rights to a protected minority group - other than to insist the will of the people can overrule such rights. When the moderator asked Pugno if the voters could by simple majority ban interracial marriage or restore the institution of slavery, he had no retort other than that the federal constitution would prohibit such things.
Pugno was similarly evasive throughout the evening. When questioned if same-sex marriages would be nullified if Prop 8 were declared retroactive, he gave an answer worthy of Bill Clinton in his technical definition of "retroactive." The marriages would simply not be recognized, he said, but it would not be as if they had never happened - and thus the effects of Prop 8 would not be "retroactive."
Andy did not score many points with the audience when he raised the issue of child molesters as an example of an area where voters had the authority to limit privacy rights (in requiring registration and neighborhood-notifications). It may have been a pertinent example, but it demonstrated an amazingly tin ear when it came to the sensitivities of his audience. I don’t think he purposely meant to insult the crowd, but it was a callous error on his part.
Likewise, he didn’t come off well in dodging the moderator’s question of whether he personally thought equal marriage rights in California were inevitable. To support his assertion that they were not, he gave examples limited to the current state of the world in which a small minority of nations now acknowledge such rights.
In fact, it was nearly ludicrous how Pugno ignored the march of progress throughout history - and Gloria Allfred took him to task for it. She used this opening to launch into a stirring oration on California's historic role as a beacon of liberty, consistently at the forefront of human rights and equality. It was a wonderful note to end the evening on.
And yet I actually left feeling disappointed with how weak the Yes on 8 arguments seemed.
Still, it’s anybody’s guess how they will seem to the Supreme Court. But the debate left me more confident than ever that Proposition 8 will be overturned by the Court, in a decision expected mid-year by the same Justices who ruled equal marriages rights fundamental to our constitution just last May.