Get Used to It: Ep. 109, "Marriage... It Ain't Over Yet"

(upbeat music) - Hi, welcome to Get Used To It. I'm Sheila Kuehl, and we're happy to have you back on a show that deals with a lot of issues of interest to about dealing with whatever, our LGBT communities around the country. We seem to be in the middle of the griddle these days on one major issue, if not a host of others, but the one you read about in the paper, marriage. Are we married? Are we going to be married? Do we wanna be married? Have we been married? Are we not married anymore? It seems to change every day. And one of the major arenas in which these decisions are being made, of course, are in our courts about which we hear a lot. So I'm very pleased to have as my guest today, Jenny Pizer, who is a Senior Staff Attorney at Lambda Legal. Lambda has handled a number of these cases around the country. In, of course, in teams with other organizations about which I know you will talk. Welcome, Jenny. - Thanks, it's great to be with you. Always good to be with you, Sheila. - Thank you, happy to have you here. Well, before we start talking about Washington and California and Hawaii and Massachusetts and all those other states, not to mention Missouri and the ones that are trying to go the other way, I think people are always kind of interested in how people get into the kind of work you're doing. I mean, it's a very small club. Attorneys that are doing these cases for our community nationwide. So, just for the first couple of minutes, tell us a little about Jenny Pizer. Where'd you grow up? - Outside Philadelphia. - Lot of Philly people end up - [Jenny] Yeah. - doing this kind of activist work. Is there something in the water there? - There's something really good in the water in Philadelphia. Back when I was in high school, I did some rowing on the Schuylkill and I think there was something magical in the water of the Schuylkill back there in the seventies. - Sounds good. So did you, were you an activist in high school or did you kind of start thinking about sort of other people's rights or other people's issues in college? How did this start for you? - Well, you know, my mother is a feminist and a thinker and a reader, and she raised three daughters to pay attention to social issues and in particular, gender issues and discrimination and the inequalities that women face. And so I was raised thinking about those things. I did get involved... Well, I worked on a political campaign. I worked on McGovern's campaign when I was about 12, I think, I was a little kid knocking on doors in a working class part of Philadelphia, talking about McGovern. And I learned something about how quickly doors can close. (Sheila laughs) But yeah, so I've always been interested in politics and the idea that you have to get involved, if you wanna see things change. But I think being interested in particular in discrimination was something I learned from my mother. And it's been really special over the years of having the chance to do work on issues, to be able to share that with her. And sometimes a good result will come and I'll get an email from her and that's particularly meaningful, 'cause she taught me to care about things. - Well, but not everybody really makes the connect between politics and law. I mean, it's all very interesting to me that people think you run for office, but then they're not exactly sure what you do when you get into office. And the certainly same can be said about the courts. When did you start connecting this notion that you had about discrimination to thinking that you might go to law school? - Yeah, well I think for a long time I thought I might be an academic because there's so much to know if you wanna understand things. But when I was in college, I was an undergraduate at Harvard and I was involved in feminist activism there. And I did an undergraduate thesis paper where I focused on a couple of feminists in Victorian England. Who used the legal process as a way to both change the law, but educate the public about the need for change. One, basically deliberately violated the obscenity laws in order to distribute information about birth control and ended up being prosecuted and was sort of put on trial as a show trial. And that turned out to be an incredibly effective way to show the public why the obscenity law was wrong and that women in particular, needed this information about birth control. So, I was very fascinated by seeing how one can draw attention to an unjust law or an unjust use of the law and that education and the sort of drawing public attention to how government power is being used can help people realize a law needs to change. There was another example of a woman who challenged the contagious diseases acts. Again, this was Victorian England, and so the things I was reading had all kinds of flowery language in it. - [Sheila] Right. - I read lots of things about soiled doves. What were these soil doves? Well, this was about the way these contagious diseases acts were being used as an excuse for locking up prostitutes. - [Sheila] Right. - Basically making women pay the price for, they were providing a service. Men were purchasing those services, but the morays of the day put the entire burden on the women. Would lock them up in these lock hospitals. If they showed symptoms of having syphilis and then they'd be locked up and the symptoms would go away. And the people who didn't understand the medicine thought that they were then cured and then they'd go back to work. I mean, it was bad medicine, but it was also incredibly sexist. And in my view that was an abuse of power. But there were some people who used parliament, an effort to change the law, advocacy and the courts to draw attention to what was really a sexist abuse. So I started thinking about the law. But always in the context of wanting to affect social change and to be a voice for people who had less ability to speak for themselves. Or may not have realized that things could be different. And so it was definitely with the idea of doing social change law that I decided to go to law school. - Did you go right into law school after college? - No actually, I did something that surprised a number of friends. I had some debts to pay as so many people do and even more today with the cost of college. So I went to work for a law firm in Boston and worked as a corporate paralegal. And I learned how to walk in high heels, which I had not had much practice in before. (Sheila laughs) Actually I felt like I was in drag every day. And it was interesting 'cause I did come out when I was an undergraduate student. And so, it was very peculiar then as I was coming to have a stronger sense of myself as a lesbian to go work in this office, wearing a suit and heels and pretending I was a grown up and then meanwhile in my, I had a second job working in the gay bookstore in Boston. So I would change costume, - [Sheila] Right. - and go work there. And was learning a lot more about my community. This community I hadn't really known existed. - Was there much support at Harvard when you were an undergraduate for coming out in LGBT students? - You know, things were really just starting. And I had an incredibly great sort of group of friends. Somehow we had found each other and there was activism starting. I actually didn't do a lot of gay activism at that point. I was still doing primarily feminist work and I think I wasn't quite ready to be that public and my girlfriend at the time wasn't either. But you know, I will always have a particular sense of devotion and gratitude to Harvard Radcliffe because the fall that I came out, which was the fall of 1980, was actually exactly when Ronald Reagan got elected. - [Sheila] Right. - I happened to have, I was taking two classes where my teaching fellows were lesbians. And they were both out and they were about as different as two people could be. And there was this wonderful group of friends. And so that part of the coming out process, actually was very easy. It was much easier than it is for many people. And I'm very grateful for that. I mean, I signed up for economics and American literature and had no idea (Sheila laughs) that my section leaders - [Sheila] Right. - would be so important to me. - Well, it was interesting. I graduated from the law school there two years before 1980. And I really didn't know if I was really a lesbian. I'd had a long affair when I was much, much, much younger and just really wasn't sure. Then fell in love with a woman while I was in law school. And everyone was very either supportive or ho hum. And it wasn't in the seventies. We didn't have sort of this nationwide movement and feeling and whatever, but I feel like maybe it's just so elitist that once you're there, they just approve you. I don't know what it is, but certainly I've had the same experience. It was very supportive. But you decided that the law was something you wanted to pursue. And after working as this corporate paralegal, which is still working in the law. Went to law school. Were there attorneys in your family or people that you'd known? - No, they really... It is funny, I know for a lot of people that grow up with much more of a sense of what the law is and what practicing law entails. I had no idea. I mean, I kind of had an idea that lawyers work hard and it involves a lot of reading. And I had a sense that it was a versatile degree. And so, it was a way of choosing to do something without necessarily pinning myself down too much. And I didn't have that clear an idea what it would involve. I mean, that's part of why I wanted to work in a law firm too. Although I think it didn't give me a vision of myself as a securities lawyer, I will say. (Sheila laughs) But law school was a wonderful experience. I went to NYU in New York, and I had always wanted to live in New York. And NYU was a particularly terrific place. It's always been very supportive of public interest law. And at that time in the early eighties, it was particularly so. And being in New York City, I mean, you just look out the window and you see all kinds of examples of things that you could apply the law to. - [Sheila] Right. - And there were lots of out lesbians and gay men, particularly lesbians. As I entered law school, my first year, the third-year class had a dozen and a half or so lesbians who were out and involved in political work and also just being themselves and not being apologetic about it. So it was very exciting and it was very reassuring that one could train to be a professional, but also be oneself. And I think in a lot of schools people don't feel that way. But it's not something I take for granted, but it did give me a sense that I could be myself, be a whole person and also do work that I really cared about. - Well, I think lesbians were sort of, I'm gonna use the word privileged in a way to kind of be out and activist and think about going into the law, because of our work in the feminist movement. I mean, we kept bumping our heads up against the law and it was kind of like, okay, which one are you guys gonna go to law school? Because we can't keep doing this. They're gonna keep winning and we don't know what the heck to do. And I think a lot of women in the eighties made that decision. Straight women and lesbians. For gay men, it was a little bit more difficult. They were still struggling with the ability to be out or choose not to be out because they could have a whole different kind of mostly business kind of life. And they hadn't quite come into their activism yet. Many had, but not in the vast numbers that we saw after the AIDS pandemic, when people started bumping their heads up against the law and medicine. So, did you work on gay issues in law school? - I did some. I was focused still quite a lot on the inequality of women - [Sheila] Right. - and the sexism of business and workplaces and the law. But I had a tremendous opportunity to do a legal internship at Lambda Legal. This was back in 1985, '86. I worked for Abby Rubenfeld, who was then the Legal Director at Lambda, who was one lawyer on staff. Now we're 16 or 17 in five offices. At that point, it was a tiny staff. I describe it sometimes as a tiny staff in a broom closet in the ACLU building, in Manhattan. I was there as a student. I sat on the floor in the hallway and scribbled my work for Abby. And I had the great privilege of taking a sexual orientation in the law course from Tom Stoddard, who became the Executive Director of Lambda and was a truly inspiring teacher and community leader and advocate. Tremendously caring man. So there were definitely people I had a chance to study with and watch and learn from as a student, that really, again, inspired me with the idea that you can do this. And you just have to apply yourself and care. And then doing that, you're blessed with amazing colleagues and people that are doing it with you. - It seems like we as a community, not surprisingly, kind of followed in the footsteps of other communities that have sought equality in this country. Our early cases were in a way modest compared to what people think we are demanding now. But much of it really centered on equal treatment. Although we had much more of a component about healthcare because of AIDS. But equal treatment, mostly in employment. And it wasn't until later that it seems to me, I could be wrong, I guess this is the question. Sort of the progression of issues for the community. - Well, actually, an issue that was with us from the beginning, was lesbians coming out of marriages to men. - [Sheila] Right. - And needing to fight desperately hard and often not succeeding in holding onto the relationships with their children. Women who had been the primary parent from the birth of the child. And the child may have been still in elementary school, maybe teenagers, but the presumption was that the lesbian mother would be an unfit parent and that the children would be better off with a father who may not have been much of a caretaker up to that point. So there was a lot of litigation about that. And as I said, some of it was unsuccessful and those cases were heartbreaking. And similarly for gay men, who came out of relationships of marriages to women who were denied appropriate visitation with their kids, because of that same kind of a presumption that they posed some sort of risk to children, that they had been a parent to a sort of a devoted, loving parent for years as if they had all of a sudden become someone else. And I think it's important that we keep some of that in mind, both to see how far we've come when we face difficult challenges as we do now. Very serious work that we're doing now. That we've made just amazing strides, but also to keep in mind that in many parts of the country, people still face those problems. We have enormous geographic differences in terms of the legal status of gay people and the social reality for gay people that plays out in the courts. And so people will accept legal restrictions, put on them by a judge won't even realize that they could challenge them because their social environment tells them that that's the best they're gonna get. Maybe restricted visitation of a gay father, can't have his kids visiting with him in the home with his partner present. And we're challenging some of those things now, but that many times people will accept them because they won't see that they have the option to challenge it. Whereas people in other states would never think that they should have to put up with that. And rightly so, they shouldn't have to, but our expectations really vary. - Right. But I think that, well, it might not be the case, but I was thinking that maybe people would have a slightly easier time in terms of the workplace issue or maybe more support. Although people who brought employment discrimination cases might say, are you kidding? I mean, it's really, really hard, you know, to buck the company, buck your boss. And we're going through coming out all at the same time, but you're right in the most vulnerable place in our lives, our families, those are the places that I think the most heartbreaking cases have come. And here we are now after winning a number of rounds about domestic partnership in many, many states. And as a matter of fact, domestic partnership now being sort of the preferred, moderate fallback position. Very interesting development. Here we are talking about marriage and we'd been talking about marriage for a while. The first time I remember hearing about a major sort of state issue case about it was in Hawaii, but I'm probably wrong. There probably were cases where we just lost in other states so. - Well in the mid eighties, this was a dominant theme when I was in law school. Debate within the community about whether this is a goal that we should pursue or not. And there was at that time, a strong feminist objection to the idea of seeking marriage. And at that time, that was the position I held. Quite vigorously. And many of the men were focused on, this is the structure that society uses to define family. We need to be in it. And the feminist advocates were saying, we need to change it. That was I think, incredibly healthy and useful debate to have. And there were some cases that people were paying some attention to, but they were not successful. Hawaii, I think stands clearly in our minds because the Hawaii Supreme Court in 1993, ruled that this appeared denying marriage to gay and lesbian couples appeared to be discriminatory in violation of the Hawaii Constitution. And that was the first such ruling and it was from the High Court of a state. And there was an obvious justice in it. An obvious correctness in it that I think sent a message within our community, but also to the country as a whole, that this is an issue we would need to really discuss. That was 1993. And we then had a trial that was held in the fall of '96. And I give the dates because one of the things for us to recognize is how these things have how much they've speeded up. It feels like we are on a whiplash pace right now. - [Sheila] Right, compared to that. - Yeah, it was three years from the Supreme Court of Hawaii saying, yeah, I think we have an important violation here. You better have a trial. See if the government has a reason to justify this discrimination. And we won that trial in 1996. And then of course, as people may remember, there was a voter initiative and the Constitution of Hawaii was amended to take that victory away. But that was really, you might say the first chapter of this round or of this maybe volume of our history about marriage. And that led to the cases that followed in Vermont and then Massachusetts, where the victory has been incredibly important and couples are getting married now. Have been since May. And then the cases that have followed from that, which includes Oregon and California and New York. New Jersey we're briefing the New Jersey case now to the Courts of Appeal. That's really the next one that we expect to have decided. In Washington State, I mean, it's really, we are in a very intense phase right now. - Well, I wanna explore some of the differences among those cases. Some of the things that came out of them, sort of what happened in California that was different. Where we are in California now, but not only, I mean, Washington was a great victory. But I think it's kind of important to kind of take apart for a minute, for people who are watching, this sort of interesting dichotomy among the different ways that law can be made and what impact that might have on the actual content of the law. In the Western states, not necessarily in the Eastern states, but in the Western states, we have this initiative, this direct democracy, this referendum, which is actually taking a law that's on the books and challenging it. Initiative is trying to make a new law. And that is a sort of an additional different player in some of the areas. But you always have the ability in every state for the people to vote, to amend their Constitution in their state. They could theoretically vote to amend a law, but that would, I don't think they can without initiative. I think the law and the Constitutional Amendments have to come from the legislature and then be ratified by the people. And then of course, you have the courts which don't make law, at least according to them. There's a big argument I know that the right wing wants to make that they make the law. But the purpose of the court is to interpret the words of the law and apply that interpretation best they can, based on legislative intent or any information they have about the drafting of the Constitution or underlying purpose. Apply that to a new set of facts that's brought to them that about which they haven't considered. So, where you have initiative by the people, or even a law passed by the legislature, what you really have is an expression of the majority opinion. And if the majority is red and the minority is blue, and the red people say, we don't think blue people should have any rights, they can enact that into law. And the only curb on that really are some very general statements, usually, in a state Constitution or the Federal Constitution where the court says, this can supersede what the people voted on. This can supersede what the legislature passed. Is that how it works? - Yeah. - [Sheila] Is that Civics 1A. - Yeah no, that's a good overview of it. I mean, I always like to sort of start just from the beginning that we would not have a country. We would not that this nation would not have been founded if there wasn't this agreement to have three branches of government that have balances and that check each other. The Legislature, the Courts, and the Executive, and they are supposed to have checks and balances. No one branch is supposed to dominate the other, but a Constitution and a Bill of Rights. And it was the Bill of Rights that allowed the country to be founded. And the Bill of Rights was about limiting the power of government to intrude on individuals in certain areas, because this was supposed to be a country in which people could be free and could enjoy their liberty without the government being tyrannical. And also, that the majority could not mistreat minority groups. I mean, again, it was a country formed by people who were very saw themselves as a minority that had been persecuted and wanted to set up a country where minorities could be protected. And so, we do have majority rules, but we have minority rights. And when the majority can make rules, but the courts are there to test those rules against a couple of basic principles. And one of those important principles is, is this a rule where the majority is imposing on a minority a rule that they're not imposing on themselves. If you're going to impose some kind of rule that limits people's rights or causes people some kind of unhappiness, you better be willing to live under it yourself. And that's one of the core principles. And then another core principle is that there are areas of personal liberty that can't be limited by the legislature. And that's the legislature's making laws, yep, they have the power to do that, but within certain, they have to follow the rules. - So as my dad used to say, your ability to swing your fist ends where my nose begins. - [Jenny] Yeah. - This kind of personal liberty. Well, but the Bill of Rights, of course, people think, well, it was the first 10 Amendments, but then there were more after that. We've amended a number of times. And after the Civil War, probably the most important in this area, not only gave men, African American men, the right to vote, but also establish this very vague notion in the 14th Amendment of equal protection and due process. And arguably, then applied the first 10 Amendments to the states so that they would be bound by those as well, even if it wasn't written into their state Constitutions. That could have been next to the court, actually taking the power by decision to say whether they could rule something to be unconstitutional, which wasn't written down anywhere actually. But the 14th Amendment could have turned out to be the real turning point for all of these rights. Or at least it is the bar on which we hang the hangers on these things, federally. Now many states though have amended their own Constitutions and they kind of have specific stuff in 'em. And I don't know, was that the case in any of the states where we've had these decisions so far? - Yes, actually. I mean, many of the key ideas are the same in the state Constitutions and the federal. This equality principle and this individual liberty principle. They are really key and you see them in all of the Constitutions, but that states do vary. And so for example, the Vermont Constitution has a common benefits clause. And that's about equality, but it is a bit different from federal. It means that all of the Vermonters are entitled to receive equal benefit. It means the results are to be the same. The Federal Constitution kind of says, we all get to start at the same place, but you may end up in different places. So Vermont it's a much more collectivist sharing idea that we care about the actual results of things. And that was an important idea in the marriage litigation in Vermont. In Washington State, there's a privilege as an immunities clause, that similarly, it means that the majority is not allowed to take all the stuff and leave the minority in a bad way. But also it protects against powerful minority groups doing self dealing. They were worried about moneyed interests that might manipulate government or be corrupt or self deal. So, they were concerned about minorities abusing power and majorities abusing power. That equal privileges and immunities guarantee is an important part of the case that where we just got a good marriage result in Washington State. So yes, and in California there's an explicit privacy guarantee that doesn't exist in the Federal Constitution. And privacy is an important part of the work in the family law area, including marriage, because the idea is that these are private decisions where people exercise their autonomy. The government really should not be in the business of telling you who to date and fall in love with let alone with whom you should create a family. Because that's a zone of private, personal autonomy. And the government just has no business in there. - Of course, the government has no business in any private relationships. On the other hand, the government's the only one that actually says you are officially married. And the only reason the government does that is because certain benefits declared by the government and certain responsibilities are set into law if you marry. So, none of this is really a slam dunk. It's not amazing that it didn't happen in the 20th century. It takes people organizing. It takes people articulating. It takes people demanding and pushing. Tell us about what happened in Massachusetts. I know that was not a Lambda case, per se, although Lambda participates in virtually everything. Why was it suddenly that people had a right to marry in Massachusetts? - Well, it's a good tee up for the question, because what I really wanna stress to everybody is that we're having success in some of our cases now, because this is a movement that's been visible. And the families who are affected, who are harmed by the denial of the opportunity to marry are visible and the judges, but also communities are able to see that this discrimination hurts real people. Both, because people don't have legal protections that they need, but also because there's an official message from the state that certain families are deemed not worthy of being seen by the state, being recognized by the state as families. Well, of course they are families. So, it is certainly lawyers doing legal work and advocates and legislatures like Mark Leno with his Marriage License Non-discrimination Bill, here in California. I mean, these conversations and the advocacy is happening in many arenas, but it is equally important, I think, the two dads who are there on the PTA night. - [Sheila] Right. - Looking after the interests of their kid who may be needing to do some more math homework. Or the moms who take turns picking up the kids from soccer practice, who are known by the other parents. So that, society is seeing that we are families. And so, the family code needs to be applying to all the families. In California, the marriage provision is Section 300 of the Family Code, it's about families. And so it's everybody being visible and sharing why it matters. And also explaining that it really hurts people's feelings if society says, we'll give you some legal protections, but we don't want you to have the same legal protections as we have, or we don't want it to have the same name 'cause we just don't want it to be that way. Well, that really hurts people's feelings. And that I really think, yes, we talk about the Constitution and yes, we make legal arguments, but this is about people. And the success in Massachusetts and most poignantly, recently, the success in Washington was because the families are seen. So, in Massachusetts, there had been people there doing organizing and educational work for years. And our colleagues at Gay and Lesbian Advocates and Defenders known as GLAD, we call them single a GLAD, had been looking forward to doing a marriage case there for years. But they worked really hard with the community to do educational work first. And there also had been successful litigation in the state courts on other related issues like second parent adoption and visitation and a range of issues about family law. So there were building blocks in place legally and the courts had, had a chance to think these things through maybe in bite-sized chunks, you might say. So when the marriage case actually came, there was really solid groundwork, both legally and socially. So the success in that case, the first decision, which was tremendously important in November of last year, found that there was a constitutional violation. - In not issuing a marriage license to a same sex couple? - Right. In having a sex and sexual orientation restriction, if you will. At using sex and sexual orientation as a qualification in that way, because really the government does not usually and nor should it apportion benefits or opportunities based on a person's sex or sexual orientation. And we're talking about licensing. So, these days women are permitted to practice law. Gay people are permitted to practice law. If you apply for other kinds of licenses, your sex or your sexual orientation or your religion or your national origin, your race, that's not part of the qualification to get a government license, but marriage has. This is the conversation we're having, is marriage different and if so, why, what are the reasons to limit it this way? So the High Court in Massachusetts looked at it, looked at the justifications that the government offered that there were things that were somehow different about gay and lesbian couples and their families. And that somehow, I mean, the main argument that was given is that somehow it would be better for children who are being raised by heterosexual couples, for marriage to stay as a heterosexual-only institution. And the court was very clear about pointing out the logic of that. I mean, children being raised by heterosexual parents, those are their parents and their parents will either stay married or they won't stay married based on things going on in those households. If you have this other group of people over here, gay and lesbian couples in different houses, the fact that they're not allowed to get married or that they can get married has absolutely no impact on the heterosexual couples over here. And if we care about children, we have to see these children. These children who have gay and lesbian parents are harmed if their parents are not allowed to get married. Both because they're illegal protections for families, there may be health insurance that's denied. There may be social security benefits that are denied. And also, that family is being told by the state that they're not good enough. - Well, I think that when you said it hurts their feelings, I mean, some people might say, oh, that's not a very important thing. But I think within the meaning of that issue are all of these protections that are more than just about feelings. Except feelings, when society gives you the message that you are less than equal or less than anything, it's not just hurtful to your feelings. It's hurtful to your family, to your children, to your livelihood. In some countries, a risk to your life. So it's a very, has a very deep impact. It's not just one more license. And I know that's not at all what you meant. - But I stress it not to bring out and invite people to talk about this, because I think it's hard often for gay people, we protect ourselves and it's sometimes hard to say to our heterosexual family members or heterosexual friends, we just cope with it. We deal with the hurt and we move on. And I think it's time for us to help those who like us and care about us to understand that this message does hurt our feelings. And for us all to remember that the promise of equality in this country is about recognizing that dignity matters to people. We talk about it as first-class citizenship versus second-class citizenship. And it's one of those core civics lessons or American culture lessons that we grow up with. I mean, what does the flag mean? It means commitments to a country of diversity where there's a place for different types of people and people have an equal place. We are different and that's okay. And we don't have to all like each other, but we stand as equals before the law. And that is about our human dignity and our common human dignity. And if people are denied that it corrodes and it corrodes our society. That commitment to treat each other as equals that we all have a place at this table that we share is what makes this a great nation. That is what the flag represents to many of us. And so, I mean, I think it's time now for those of us who can to share that it demeans our dignity. That's the language of the Supreme Court in the Texas sodomy case decided last summer. The recognition that it demeans the dignity of persons, if the state brands a certain group of people, as less than. And that's not part of our American tradition. If we don't help heterosexual people to understand that we feel demeaned by being told we can have this package of domestic partner protections. And gosh, we do need them or civil union. Yes, we need those protections. But I've seen my three younger siblings who I adore and love very much. All three of them have gotten married during the time I've been at Lambda Legal working for marriage equality. And I've attended each of their weddings and I have felt blessed to be part of it. And I celebrate the families that they're creating. And I've been with my partner for far longer than any of those relationships. This year, we celebrate 20 years and there's nothing less than about our commitment. And my siblings don't treat it as less than. - [Sheila] Right. - Nor do my parents. And I appreciate that. My government shouldn't be treating it as less than. We pay equal taxes and we're equal citizens. - Well, it's interesting. There is something that we have held in so long that has sort of achieved kind of an outburst. And I think we surprised ourselves in California because when Mayor Newsom declared that the City and County of San Francisco was gonna issue marriage licenses to same sex couples. And over 4,000 ended up by the end of all of it, getting licenses and getting married. The sort of the outburst, even for people who said, this is civil disobedience. We've gotta go up there, it's political or whatever. And then they went through it, and it was so meaningful that yesterday, and I say yesterday, because of course we're shooting on a particular day. And if you're watching this years later, I apologize. It's 2004. But yesterday when the California Supreme Court said, those marriages, all 4,000 of them, were invalid. Sure, we knew that Gavin didn't have a right to say, you can just issue a marriage license. I think that was pretty clear, despite all the arguments that he made, that he had no choice, but to do it because the Constitution demanded it. A good argument. But we were pretty sure not that he was wrong, but that the court would say he was wrong. - [Jenny] Right. - This invalidation, however, putting the legal question of it aside, and the fact that as you pointed out to me yesterday, the court rarely invalidates a marriage based on some legal impediment. When people, you know, they're married, they should stay married. The outpouring of emotion from people, again, who were surprised themselves and how much this had meant to them. - [Jenny] Yeah. - Getting emails from their family, saying, you're still married in my book. - [Sheila] Yeah. - And the tearful, I mean, people, Jackie Goldberg, who's my colleague, she's in the State Assembly here in California. She and her partner got married and I got to perform that. She was just devastated yesterday. This is a woman who's devastated is not a word that you would normally associate with her. Strong fighter for all of our rights. And it was just emblematic of how important this became to people sort of against their own instincts. Feminists who for years had said, eh, we don't need this marriage. And it just occurred to us that maybe we were saying that because we knew we couldn't have it. And it's a great defense mechanism. - [Jenny] Yeah. - It became such a central and important thing. But it ain't over in California, is it? - No, although before I talk about the next step, I just wanna honor the grief that people are dealing with today. And for many years we said, when we have the chance to marry, that will change the way we feel about our commitments and it will change the way others see our commitments. But of course, we didn't know if that was necessarily true. We thought it probably would be true. But we did see it. And we saw that people who married knowing that maybe there was a legal question mark over it. But nonetheless, that ritual done with a government-issued license and the formality of it and the celebration of it and the official trappings was transformative for people. And as you said, many didn't expect to have the emotion and didn't expect to feel this changed. And didn't necessarily expect to go to work the next day and have coworkers giving them wishes and gifts and seeing them differently in a sense, being able to see them and to see the seriousness of the relationship in a way that they hadn't before. Because who knows what domestic partnership means, but people understand what marriage means and how shocking that the court took that away. I hope that the visibility of the grief is seen by the five justices who voted to annul the marriages. I mean, you just don't annul people's marriage against their will, especially after when... - They haven't had a chance to even argue their own case. - [Jenny] Yeah. - In court, they weren't even in court on this. - That's right. And two justices, and I have to say, and we're very gratified that... - The two women. - Two women, yeah. No, not there was another woman who didn't agree but oh... - Well, two of the women. - Two of the women, Justice Canard and Justice Whitaker both spoke out in an aspect of their decisions that was the dissent saying there was no reason to void those marriages and having shut the couples out. I mean, we sought leave to come in and participate in that Supreme Court proceeding on behalf of couples. And we were denied that opportunity. So that meant the court had the Attorney General and lawyers for the City and County of San Francisco and lawyers for a right wing advocacy group. All arguing about what those marriages meant to couples and what they understood or didn't understand when they entered those marriages. And how peculiar and bizarre to think that that's an appropriate legal process to know what people intended. So, due process problem. Yes, do we fight more about that? No, because the real issue is what does the Constitution promise to gay and lesbian couples in California? And that issue is in litigation moving forward very nicely now in San Francisco Superior Court. When the Supreme Court agreed to hear the case about the licenses, yeah, back in March. They essentially invited a separate case about couples. And so we took that invitation together with the National Center for Lesbian Rights and the ACLU and Equality California, which is our political group here in California. On behalf of 10 couples who are tremendously courageous and willing to share their families with the public in order to help the court and the public understand the injustice that's going on here. So we're writing our papers now and I expect that it will be fully submitted to the court before the end of this year. And then it will be up to Judge Kramer in San Francisco. He's coordinated a number of different cases all together so that it can be done efficiently. So I would expect to the extent, I guess, and you never know what courts are gonna do, of course. But sometime in early 2005, I think we'll probably have a ruling and then it would go up on appeal. So the California Supreme Court knows that case is coming. And the different opinions issued yesterday, acknowledged that and pointed to that. And that they took pains actually, to reiterate in every single one of the four decisions that were issued yesterday. That the decision about the authority or the rights one might say of Mayor Newsom and the rights of San Francisco is a completely different legal question from the rights of couples and that nothing in the opinions about the rights of San Francisco should be taken as an indication or tea leaves of any type about this other case. - Now you won a big one in Washington, and I don't know that everybody knows much about it or read much about it. It was a case of people being turned down for a marriage license. It went up to the state of Washington Supreme Court? - No, it's still at the trial level. - [Sheila] Aha. - Still at the trial level. - So what you won was at the trial level? - Exactly, in that case, we were working with a terrific group of advocates at the Northwest Women's Law Center. And we represent, again, a group of couples. In Washington, the county executive, the sort of the equivalent of Mayor Newsom. A fellow named Ron Sims has been a wonderful friend to the LGBT community. And he wanted to issue licenses, but he took a different path from the path that Mayor Newsom took. And he said, you know, I stand with you, you should have the right to marry, but I read the law and it says, I can't give you these licenses. So sue me. And so we did. So we sued him and the state also came in then to defend the law. So the county and the state are defending the law and the trial judge there, Judge Dowman, issued one of the most beautifully written opinions on the subject that I've seen. It's posted on our website, which is Lambda Legal, L A M B D A L E G A L .org. And I really invite people to read it. It was written for non-lawyers. There are some citations, and he talks about Constitutional doctrine, but it was written to be accessible as well as legally clear. And that I think makes it, it's a treasure for people who care about these issues, because it explains things that are important for people to understand. It's a national conversation that's happening about this issue. He talks about the role of courts. He talks about what the Constitution promises to all of us, and he talks about families. And he concludes by saying something that of course, many of us have believed is true, but it hasn't been said by courts or at least not enough. That the families that have come forward in these cases are model families. They're role model families, and they are and should be an inspiration to all kinds of families, whatever sexual orientation. These are people who are loving and committed and they're taking care of children. And they're taking care of people who are ill and need help. They're families that deserve our admiration. And it's fitting that the judge would say, not just there's a Constitutional violation here, but that these are people that anybody should be proud to sit next to at a PTA meeting. And they deserve marriage licenses if that's what they wanna have. - But Jenny, there's a lot of people in this country that don't agree. And they're willing to be just as activists, just as organized. And they want to use the law to articulate their beliefs. People are sometimes confused about the different levels at which things are done. They know there's a federal amendment being proposed to put in the Federal Constitution to define marriage as only being between a man and a woman. It doesn't seem to be getting much active support in Congress, you know, both sides of the aisle. There are people who are thinking that maybe we don't wanna write discrimination for the very first time in the history of the country, into the Federal Constitution. But in some states, people have added something to the state Constitution by voting in a popular election that says that. And in some states they haven't added it to the Constitution, but the legislature has proposed it. I mean, I think it's interesting in Massachusetts. - [Jenny] Yeah. - That how long it takes to amend the state Constitution because John Adams in those days, and many people actually agreed should be very difficult to amend a Constitution. Because if you could just vote to change a Constitution, the way you vote to change a law, then you could just strip everybody of their rights, and arguably, that's kind of what people are trying to do in states even like this one. The fact that people voted in California to define marriage, they thought as between a man and a woman, it's technically they put it in the wrong section because it was only about recognizing marriages from other states. But people meant to do that. What impact does that have on the series of cases being brought in the various states? - Well, this is all a bit of a civics lesson. And I, as someone who loves to know about government I think it's tremendous that people are having this reason to learn a little bit about how their government works. Yeah, at this point, Missouri, Nebraska, Hawaii and Alaska have all amended their state Constitutions. Most of the restrictions are statutes, are state laws. In California, I think there are different views about what the voters thought. A lot of people seemed to think that what they were doing was trying to keep the discussion about marriage in California to take place in California. - So we wouldn't have to recognize those Hawaiian marriages that people thought were coming. - Right, I mean, there was an objection to the idea that activity in another state could be imposed on California. And that we should discuss that in state. And what the Prop 22, when it passed in 2000, what it actually did was deny respect to marriages from out of state. The part of the California Family Code that deals with instate marriages was a different section. And it's that section that is addressed with Assembly Member Leno's bill that proposes to make marriage licenses non-discriminatory in California. - And I don't wanna interrupt a civics lesson too much, but I've just gotten a sign that we have only like two and a half minutes left in the show. It always goes so fast. And I, of course, love talking about the law, but I wanted to give you an opportunity because I've asked a lot of questions about the law, and there may be something that you would wanna say in closing about these cases or about our community or your work or whatever. I can't offer you more than a couple of minutes, but I know people would like to know since you've devoted so much of your work. Not only to this issue, but to the rights of the community and any sort of closing thoughts about this work. - Yeah, I think the main things I would say is that the legal work is proceeding and we have tremendous clients and the cases are being, these cases are being well done. We have law firms helping us. The public interest advocates are working really, we are working night and day. That piece of it is handled, but we are talking about a profound shift, a turning point, if you will, for LGBT people in America. And so it is critical that people who can come out and get involved, because when we do our litigation in the courts, but the lesson from Hawaii and Alaska is that if the community isn't involved and visible, then we can't hold onto it. I mean, I personally believe that human beings are good and that when we educate each other and we show why it matters, people treat us better and we move forward. The American civil rights movements all have been about that. Explain why we need this change and then it can happen. In California, the litigation is going well. And in some of these other carefully selected states where we've been visible as a community, and we've got the building blocks in place, it made sense to do marriage litigation. In other parts of the country, there's a lot of other work that needs to be done. But it really is about us as a community. I mean, we finally got rid of those remaining sodomy laws, because the community had come out and the US Supreme Court recognized that and knew, understood why those laws were wrong. And the same is true with marriage. So, it's a long haul. This is not gonna be solved by one case, not a half a dozen or a dozen cases. It's really about us as a movement. And the lawyers, we do a part and we serve as amplifiers of the voices of our clients in the courtroom. It's not about filing more lawsuits. It's about building this movement and I'm just so honored to have a chance to play a part and so honored to work with you and to have the leadership that you provide in California. - Well, people don't understand why we think it's so much fun, but to do meaningful work, it's sort of like maybe at the end of my life, I will say, gee, I wish I'd spent another day at the office. Contrary to what Molly Ivans told us. Jenny Pizer, thank you so much for being with us for this really quick hour with a whole lot of stuff in it. And thank you for being with us too. And I could say to you, America, Equality, Get Used To It. (upbeat music) (dramatic violin music)