No Balance on ABC: Network Features Liberals When Prop 8 Was Passed and a Liberal When It's Overturned
On Thursday's Good Morning America, George Stephanopoulos sought out the
reaction of liberal Slate correspondent Dahlia Lithwick to discuss Proposition
8. No conservative guest appeared in opposition. Back in November of 2008, in
the days after the legislation banning gay marriage passed, GMA also brought on
supporters of gay marriage.
Stephanopoulos asked Lithwick, the legal correspondent for Slate, to comment on how swing vote Justice Anthony Kennedy might rule in a potential Supreme Court hearing.
Lithwick, not exactly using neutral language, responded, "But time after time, [Kennedy's] not just been the fifth vote for anti-discrimination principles. But, he's also been a very, very strong vote for things like dignity and the humanity and the right to choose your own lifestyle."
-Scott Whitlock is a news analyst for the Media Research Center. Click here to follow him on Twitter.
GEORGE STEPHANOPOULOS: I want to bring in Dahlia Lithwick, the Supreme Court correspondent for Slate magazine. She joins us from Richmond this morning. And, Dahlia, let me begin where Terry just left off. For now at least, the judge has put a stay on his order, which means no marriages performed in California. But that's not permanent.
DAHLIA LITHWICK (Slate legal correspondent): That's right, George. There's a very narrow window of where the judge is going to let the parties argue whether he should essentially make this stay permanent until the court of appeals rule.
So, by Friday, they have to produce briefs. And he says he'll have an order about that by Monday or Tuesday.
But at least for the very short-term, there's a stay. The bigger question is how long that stay is in place.
STEPHANOPOULOS: We'll get to that by the end of the week. Let's talk about this opinion. Terry, you called it definitive in your introduction.
And it seems as if Judge Walker built up a fortress of facts to nail down this case about marriage, about whether gay marriage harms society. About whether gay parents raise children in the same way that heterosexual couples do. And this was all designed to make the case difficult to overturn on the appeals court.
MORAN: Absolutely. Those facts are key from here on out. Because, appeals courts can't retry a case. They have to trust the facts that are given them by the lower court.
And what you see in this opinion, as Judge Walker goes through the witnesses and goes through the facts and the conclusion of fact, which are his, from here on out. And that's what the justices and the judges will have to deal with, is that the proponents of Proposition 8, the opponents of same-sex marriage, put on a very weak case, indeed.
They called one witness. And Judge Walker found that he was not qualified as an expert in any of the areas he talked about. Judge Walker said his opinions are unreliable. And so, this case goes forward without a strong basis in evidence for those who believe that same-sex marriage shouldn't be legal.
STEPHANOPOULOS: And, Dahlia, you pointed out that Judge Walker is actually looking beyond that appeals court. Looking at the Supreme Court. And really focusing on one man, Justice Anthony Kennedy.
And this is one of those cases where it's not going too far to say that one person in the entire country can make all the difference on this issue that affects millions of people.
LITHWICK: That's absolutely right, George. It's been Justice Anthony Kennedy at the center of a very sharply-polarized 4-4 court, whose consistently, over the years, has been a very strong voice on gay rights.
He's been careful to say, this doesn't mean I'm for gay marriage, by the way. But time after time, he's not just been the fifth vote for anti-discrimination principles. But, he's also been a very, very strong vote for things like dignity and the humanity and the right to choose your own lifestyle.
So, in very sweeping terms, Justice Kennedy has really talked about these things. And it's not an accident that in Judge Walker's opinion, there is citation after citation after citation to Justice Kennedy's language in the gay rights cases.
STEPHANOPOULOS: Terry, we have 15 seconds left. You've followed the court for a long time. How do you believe Justice Kennedy will view this opinion?
MORAN: Well, I think Justice Kennedy and a lot of the justices up there are cautious about one thing. Getting too far ahead of the country, where the country is at. You look back at the death penalty, at abortion.
And what you see is the court doing something sweeping, the country reacting strongly. That has really had an impact in legal circles. And that will be a hurdle for the proponents of same-sex marriage to overcome.