The Legal Argument Against Gay Marriage

This is a partial transcript of The Big Story With John Gibson, Feb. 17, 2004, that has been edited for clarity.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I strongly believe that marriage should be defined as between a man and a woman. I'm troubled by activist judges who are defining marriage. I've watched carefully what's happened in San Francisco where licenses were being issued, even though the law states otherwise. I have consistently stated that I will support law to protect marriage between a man and a woman. And obviously these events are influencing my decision.

(END VIDEO CLIP)

JOHN GIBSON, HOST: Well, as you heard, President Bush is keeping an eye an the court challenge to San Francisco's gay weddings. My next guest argued against them yesterday as attorney for the Alliance Defense Fund (search).

Robert Tyler (search) joins me now from San Francisco. The big question, Mr. Tyler, what is the legal argument against gay marriage?

ROBERT TYLER, LAWYER, ALLIANCE DEFENSE FUND: Hi, John. Thanks for having us. Here in San Francisco what's going on, this is municipal anarchy. It's a mayor who has just run amok and decided that he is going to decide what the law is for himself and he is going to disregard the laws of California, the state of California.

GIBSON: Mr. Tyler, wait a second. Listen, he's making the argument that this is what the state constitution says, that everybody should have equal rights under the state constitution. So what's the argument against that?

TYLER: Well, first of all, that is not the issue in this case here in California, because California law specifically says there's an orderly process and if somebody wants to change law. And no mayor or other municipal authority has the ability to decide what they believe the law should be. And, therefore, what this case is about, is about restoring law and order in San Francisco and setting an example for the rest of the state that a mayor does not have the authority to step forward and decide what the law is for himself.

GIBSON: OK. If that is so crystal clear, why have two judges said, nice argument, counselor, but I'm not going to rule? I'm not going to stick my neck out on this one. Come back. We'll hear you a week or two from now.

TYLER: That's not exactly what the judge said. This area of law is really complex here in California. We had a long discussion of trying to clarify the law in the courtroom yesterday. There was a three-hour hearing. And my legs were tired by the time it was done. Here's what we have. We have a situation where the judge issued a cease and desist order recognizing that the mayor and the county clerk and city of San Francisco, they're collectively violating the law of California. He issued a lawyer saying you need to cease and desist.

GIBSON: But it was voluntary. He said, you can cease and desist if you want to. I am not going to order it.

TYLER: Well, he said cease and desist because that is what the law says you must do. And if you don't cease and desist, come back on March 29 and tell me why you didn't. If you do cease and desist, essentially, you don't have to come back on March 29.

GIBSON: But that's an open door to keep going. Why is this — if it's so clear — you said at the outset it's clear that it's illegal in California for the mayor of San Francisco to do this.

TYLER: That's correct.

GIBSON: Then, why is it then a complicated legal situation in which it's not clear to this judge?

TYLER: Well, I don't want to get into the judge's thoughts. We're in the midst of litigation and it would be inappropriate for me to comment directly on what the judge is thinking. But we have a situation in California where there's this unique and complex procedure. I believe that the judge had the authority to issue an immediate stay rather than to say come back and at that point in time I can give the immediate stay, which basically means, if they issued an immediate stay, there could have been sanctions imposed upon the mayor. He could have been placed in contempt had they continued issuing these marriage licenses in violation of the law. Instead, he issued a cease and desist order.

GIBSON: All right, Robert Tyler. We'll have to wait and see how it works out. Thanks for joining us today.

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