Relationships Being Defined and Redefined

This is a partial transcript of "Special Report with Brit Hume", Feb. 17, that has been edited for clarity.

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BRIT HUME, CO-HOST: So what does the law actually say about gay marriage in California and nationally? For answers we turn to Douglas Kmiec, professor of law at Pepperdine University in Malibu, California. Professor Kmiec was also an adviser on constitutional issues to previous Presidents Bush and Reagan.

Professor, welcome.

DOUGLAS KMIEC, LAW PROFESSOR, PEPPERDINE UNIVERSITY: Good to be with you, Brit.

HUME: What is the law in California on -- on gay marriage as it now stands?

KMIEC: It's a law of long-standing, since California has been a state. In the Family Code, marriage has been defined as a personal relationship between a man and a woman that depends on voluntary consent that requires a license from the state, and requires that it be solemnized.

More recently, as you your setup piece indicated, Californians by an overwhelming vote approved Proposition 22, which, once again, states that only a marriage between a man or a woman -- a man and a woman in California is valid and recognized. So the law is clear, and un-excepted.

HUME: Now, Proposition 22 is a cons -- is an amendment to the California Constitution, correct?

KMIEC: It is, and it is codified in the California code as well.

HUME: All right. So on what -- why would a judge be as reluctant, as this judge seems to have been, to grant a temporary restraining order which would at least freeze the situation? What is the -- what is the confusion here legally about how this case will come out?

KMIEC: Well, there shouldn't be. But as lawyers always can, they can complicate things. And in this instance, the emergency orders for a stay were complicated by the failure to give proper notice, so the first delay was related to that.

This morning, the delay was also excused by the court as saying it needs more time. And this afternoon, what's being argued here in California is that there has to be a showing of irreparable harm in order for an injunction to issue.

And of course, there is an irreparable harm. We have thousands of licenses. These people are going to be emigrating across the country. They're going to be claiming governmental benefits. They're going to be claiming benefits from their employers. And as a result, legal relationships are being defined and redefined, and that's an irreparable harm unless the law is observed.

HUME: Well, doesn't irreparable harm normally mean -- it's a very dramatic sounding phrase to a layman, but doesn't it really mean that something will happen absent an injunction or a restraining orders? Something will happen that cannot be undone?

One assumes that these marriages that are unfolding, and these marriage licenses can be invalidated, can they not?

KMIEC: Well, that's right, but you are right, irreparable harm is a word of art. And what it really means is a question of whether or not it is in the best interests of the law and the community for the status quo to be preserved.

And I think it's clearly the answer to that question has to be yes. Otherwise we not only have chaos in the state of California, but we have confusion nationwide.

HUME: Now, does...

KMIEC: But it...

HUME: Let me just ask you a question about the mayor. What is his legal position, which is a little unclear to me? Is it his view that -- that the United States Constitution's Equal Protection Clause overrides the California Constitution? Is that what he is seeming to say here?

KMIEC: Well, the concept of equal protection is incorporated in both Constitutions. But he has taken it on to himself to be judge, jury, legislature. In fact, all power has been assumed by Mayor Newsom in California.

HUME: Well, does he have a chance in your view to prevail on this law in California? Or do you think this is -- some judge will sooner or later ... is going to reverse this?

KMIEC: Well, of course, we -- I would anticipate that a -- there's at least a few rationale judges in the system left, who are going to abide by the law as enacted by the legislature and as written. And I would hope that the California Supreme Court will ultimately vindicate that result.

But it may take a few decisions to get to that -- to that end point. And as we know, Brit, in Massachusetts the judiciary decided that it didn't matter what the Commonwealth of Massachusetts had enacted into statute. If the judges wanted to go off the reservation, they will.

HUME: But in that state there was no -- that state there was no Constitutional amendment that -- as there is in California, correct?

KMIEC: That's right. There is -- California has been very explicit in the sense that Proposition 22 was California's Defense of Marriage Act enacted in 2000. And that reaffirmed the California family code of long-standing.

HUME: Let me just ask you one more question, quickly, if I can. There is a national law called the Defense of Marriage Act, which for federal purposes only, defines marriage as between a man and a woman.

But it also contains a clause that says that -- that the Full Faith and Credit Clause of the Constitution shall not apply in this case. Which means that the normal circumstances if you got married in Massachusetts, for example, and you went to live in Nebraska, that Nebraska would have to recognize you as spouse and spouse.

Now, the question arises. Well, is that overridden, that law overridden by the Full Faith and Credit Clause by the Constitution, which says that it, "shall be given in each state to the public acts record the judicial proceedings as you can see of every other state."

And it also says, "And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

Does that -- quickly, last question, give the Congress the authority to do what it did, and that is Defense of Marriage Act.

KMIEC: This is a very un-interpreted clause, in the sense that there's very little law on this subject. So by and...

HUME: So there's no way to know?

KMIEC: Well -- but the text...

HUME: Quickly.

KMIEC: ... however, is a good indication that if a marriage is against the public policy of the state, Congress says another state doesn't have to recognize it.

HUME: Professor, as always thanks a million.

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