today, san francisco values become america's values. >> that's what we're affirming today. >> a huge celebration at san francisco city hall after an historic u.s. supreme court decision. good evening. welcome to kqed i'm scott shafer. today the high court ruled that same-sex couples have a fundamental right to marry. no longer may this liberty be denied to them. that's what justice anthony kennedy wrote in the landmark decision. kennedy was the swings vote in the 5-4 ruling. joining me to discuss this

precedent-setting decision, a professor from hastings college of the law and kate kendell. big day today. kate what was your reaction when you first heard this decision come down? >> i burst into tears and i'm not the least bit ashamed of it. it felt like not only the culmination of so much work and effort and sacrifice by so many, by really countless people, that it also felt like it was the harbinger of a new chapter where maybe more freedom, more justice, it felt like you know those words, equal justice under law inscribed on the supreme court building that meant something for all of us. >> it's more real. >> we're going to talk about the ruling itself. what are the legal underpinnings of it? >> well this is both on due process grounds and equal protection grounds, which is a very important point. this is solid deely based on two

doctrines. you have a due process right to marry and you can't discriminate on a factor that has no rationality as well as you can't discriminate between people. and justice kennedy's signature line is going to be equal dignity in the eyes of the law. >> there were some very voiceferous discents assents as well. some thought chief roberts would be on the right side of the history. what do you make of the fact that he wasn't, either one of you? >> well obviously professor little can really speak to this in a nuance way butce to me it felt like it was -- it's going to tarnish his legacy. he will be on the court still as chief justice at a point when we look back as americans and as historians and as legal scholars

and say, boy, we got it right. and the dissent -- not only did the dissent not give ample justice and a sense of dignity to lgbt people i felt like they were openly insulting of kennedy's view and the majority's view that the constitution is expansive it moves with the times and times can't blind people to injustice. >> and there was even the phrase, threatening the democracy from scalia. he's kind of known for bombastic dissents but were you surprised about the tone at all? >> i was surprised about justice scalia's tone because it's one of the most personalized -- he said the style here insults him. that's surprising for justice scalia and the argument that it's not in the constitution, that's just -- that's just kind of a tired argument. it's right. there's nothing in the constitution about same-sex

marriage. there's nothing in the constitution about almost anything. i always tell my students the air force is unconstitutional because there's nothing in there about the air force. >> was this a decision, kate, there can be narrow decisions and broad decisions, where would you put this one? >> i think it's expansive. i agree with profess for little that the drew process clause of the 14th amendment but also kennedy -- he essentially puts forward four justifications for the ruling and not only is there legal support but really just what kind of country are we? and this fourth point talks about how the children of same-sex couples are stigmatized by not having these relationships recognized. that sort of language how it's dehumanizing to not be included in this very sacred and important right how it hurts children in addition to the parents that sort of language, i think, will be eenormously

important to not just the law protection but that you matter as a citizen. >> we were talking to some folks from the national association for marriage. they oppose same-sex marriage and they are talking about a constitutional amendment to try to get this changed. is there anything that you see legally or otherwise for them to hold on to to grab on to? >> there isn't anything this that opinion. this opinion is very clear. there's no separate opinion in that five justice majority. they all agree with what justice kennedy wrote. and justice kennedy says some opponents say this disrespects marriage. he says that's exactly backwards. this shows the respect for marriage that same-sex couples have. they would like to be part of the institution because they respect it. so i don't see any litigation designed -- in the brown versus board of education, there was a lot of fighting about what it means. i think one is absolutely clear. kate is right on this. >> prop 8 was before the court a couple years ago and the attorneys opposing prop 8 at

that time said there's a fundamental right to marriage and they chose not to go there, the supreme court. instead, they kicked it back on sort of a legal technicality that the proponents didn't have legal standing to bring the appeal. why do you think -- like what has changed? why are they now saying, yes, there's a fundamental right to marriage. >> i don't think anybody would disagree that there was a fundamental right to marriage although the standing argument on prop 8 was designed to allow strategically for the country to come up to speed. since prop 8, state after state and circuit after circuit has said -- and the windsor case -- you know, at this point, the court is not ahead of the curve. at this point the court is endorsing what most jurisdictions and people have already endorsed. >> i was just going to say i completely agree with that and just in the two years since doma, the central court of doma

was struck down and prop 8 died even though it was on a technicality, not only have we seen a change in the number of states that now permit same-sex couples to marry at 37, but the polls show that over 60% of our friends neighbors, co-workers, fellow citizens support the freedom to marry and kennedy is no real firebrand. he is judicious. he is cautious. and i think he needed those two years. i think i agree. he had gone out on a limb to find that in the text of the constitution two years ago i'm not sure. this extra two years gave them the time with the other four to now say let's do this. >> you know another person who has done this famously is president obama and he came into office saying he opposed gay marriage and he's leading the charge on it. what do you make, either one of

you, about what influence has he had either on the public opinion side or on the court? i mean, the federale government came out in several of these cases in support of same-sex marriage before the court. >> you know the biggest en influence that the president has had -- and he did not always endorse same-sex marriage when he was running for office originally was when he decided not to defend the defense of marriage act and the solicitor general said we're not going to defend it. that was a lot of turning point in a lot of the federal court views. >> why does that matter so much? >> because the administration has a great force on these constitutional issues both at the circuit level and supreme court. when they said we can't defend this discrimination in iodoma that was a big signal to lawyers that there was a legitimate view a mainstream view, if you want, and the solicitor general was severely criticized at the confirmation hearing for not defending doma.

>> and it was a shift because up to that point president obama said i think it's unconstitutional but my job as the executive branch is to defend it. it was a shift to change it. i think that was a huge moment and then when he made the statement in the run-up to the 2012 election that he had evolved and supported the right of same-sex marriage, i think that had everything to do with the fact that for the first time we won four measures at the ballot box. the president led and people followed. >> talk about the timing of this decision. we knew it was going to come at the end of june. we thought it might come yesterday or monday and then they added friday. of course this is gay pride weekend in san francisco and people said i think they are going to do it on friday because it will make for a great celebration. do justices at the supreme court think about things like that? >> i think they know. i think they know they have clerks who know. they are not completely

cloistered and there's also symmetry. so i wouldn't be surprised if there is was poetry to this. >> i think justice kennedy knew what was going on in terms of the anniversary of windsor in the doma case. i think on a different station i said, you know if they lived in san francisco they would do it today because gay pride is this weekend. >> so what does this say, this ruling on friday and then also the decision upholding the affordable care act subsidies written by chief justice roberts a 6-3 decision. what does this say about where the court is? is it moving to the left? >> i think this term is going to be moving to the left and we'll see what they do. there's an epa case up for decision still on monday. if the administration wins that,

that will be four wins in a row and it will show a shift -- the kagan and sotomayor who were silent today have influenced the dialogue. >> how does that work? >> because they are both pushing from the left in a very vigorous way and they are very different people. justice sotomayor is from the streets, in some sense. and when they are in their fighting, i think the rest of the court hears that. >> before the decision came out, kate, a lot of people wrote well, once we get marriage we're done.. what do you think -- say to that argument? >> i think people know that's not true. i think it's almost offensive to make an argument like that. i understand that marriage is an important headline and, boy we needed this high-water mark to do some of other other work. because as long as the government is in the business of discrimination, no one checks their own private prejudice.

we still have private prejudice. we have assaults and murders of transgender women and we still could get married on sunday and fired on monday in most states. there's a huge amount of work yet to do but what we do is we need to harness this momentum. we have now -- because so many people came together been given a tremendous once in a movement opportunity to push the lever of justice even farther forward. >> is there the doma and -- so on that might help folks who get fired because they are gay? >> there's no doubt that this ruling is going to increase. protection in other areas because the recognition of equal dignity in the eyes of the law is not limited to just marriage. it's going to be extended. the due process right is extended to the highest level of scrutiny under the due process clause. they didn't say a level of scrutiny for the equal

protection clause. so i really think this puts it up on the -- there's no intermediate discussion here. so i think you're going to see how the discrimination -- job discrimination, other discrimination, they are going to be more strongly protective in every serkcircuit including the sir circuits that have been dragging their feet. >> and kate quickly do you think that this will renew the push in congress to -- for the end of the employment nondiscrimination act? >> i think it will certainly move a conversation in congress and actually what we're pursing now a bill for congress for housing and public accommodations and i think we're going to have momentum of that and i think we have to do everything we can in the states to move forward. >> and then we have a presidential election next year where i'm sure some of these things will be discussed, kate kendell and rory little, thank you very much. >> pleasure.

>> definitely a big day today across the country. hello, i'm thuy voou. for vu. are people of color treated fairly under the law? a report released this week shows that african-americans are disproportionately represented in san francisco courts and jails. among the report's findings while black adults represent only 6% of the population, they represent 40% of the people arrested. joining me now to discuss those findings are two key players in san francisco's criminal justice system. sheriff ross who oversees the county sheriff system and a public defender. welcome to you both. >> thank you. >> you are with the re-entry council which commissions this. to what extend were you aware of the disparity?

>> i've been a public defender for over 30 years so you see it every day. you see in urt couldcourt black and brown people being brought down to the holding cell. what this report did was show the hard numbers that at every stage in our criminal justice system, african-americans in particular, not only 6% of the population, like you mentioned, but 40 to 45% of the jail population, of the people arrested and the report also found that even though african-americans are more likely to meet the criteria to be released from jail pending their trial they are less likely to get out and that's a shocking static. >> and sheriff, what do you make of all of this? why do you think these racial disparities exist? >> i think they have for decades. i think the report is a real affirmation of a reality that many of us have known about and have really been urging other arms of local government getting notice by the state government to make some significant change.

i don't think that this is anything dissimilar from other cities around the united states. what i think it does is it's a bit of an indictment. i think on san francisco's liberal reputation for progressive reputation that maybe we are not just all that and maybe we are overlooking some key variables that enabled this behavior to happen. >> the city has become complacent and what are the variables that you are talking about? >> we do -- and i'm proud as a public official and citizen of san francisco to celebrate our racial diversity but i think really what is at risk is our class diversity and that translates into the justice system. we with have seen that uninterrupted for quite some time and it's now on hyper path. this report comes at a good time. i think it compels us to answer the report and i think that's where the real test is. i want to see the leadership and people come together and say

that we are going to commit to some meaningful change. >> in his response to the study, police chief greg said his officers, quote do not disproportionately target black people but there are neighborhoods that have high african-american population where is crime exists. what do you think of his response? >> well, first of all, if you look at the most basic sort of police contact that you have other than saying hello to an officer, it's a traffic stop. african-americans are four times as likely to be stopped for traffic offenses. does that mean because they are worst drivers? no. they are being stopped more often. and many arrests stem from that. you have this initial contact. it's a contact based often on a police officer's perception of a person and all of the studies have showed that police officers are not immune to implied bias which is the biases that we all hold within our selves and we're

not even aware of. these judgment calls are made and you have racial profiling that goes on. there are charging decisions that police officers make as to what to charge somebody with. at every stage it shows that these biases affect decision making. this is what we're trying to address through the reforms that we've suggested. >> so what are some of the reforms that you can put in place to address implicit bias? >> well, one thing is training. the studies have shown that once a person is better educated and informed on your bias, there's a test that you can take that was developed by harvard called implicit association test where you can test the left ofvel of bias. that's one thing that could happen. the other thing that we're doing is there is legislation that is going to require the police department to report on all of the contacts that they have with the citizens and gender and race. we are not doing that now. i think once we become more aware of it we can then begin tracking it and then holding

officers accountable. we have the racist scandal here in san francisco. that was an example of explicit bias. and so we need to root out those officers and make sure that we do a better job of vetting officers who hold those kinds of views and have officers who have a stake in the community who are more connected with the people that they are working with. >> it's not just the police department, the sheriff's department is the point of the legislation. and we are the second largest enforcement in the city and i think we have to be held to the transparency that i think has been really divulged yet in a systematic way. >> what are you doing in your department to deal with implicit bias? >> well, we do a fair amount because we're the ones who really try to divert people out with the approval of the courts so they don't have to be incarcerated. we fund 95% of the city's free

trial program. we're trying to really help create a different pathway so it's not just -- we're making national history but we have a long way to go. >> i want to go back to the point that you brought up earlier, the racist and homophobic messages. 14 of the officers exchanged them and that and in addition to the problems that the police dna lab as a result, you as well as the district attorney's office are now investigating reviewing 3,000 cases. what is the status and how many of the cases are you having to throw out? >> well, when you talk about an

officer's credibility, there is hateful ladies and gentlemen of the jury language against people of color. there's already been a dozen cases dismissed and it's going to take until the end of the year. so we have a lot of work to do. but beyond that, we're looking at how bias affects other parts of the system. you know judges, prosecutors, even defense attorneys. one of the things that we're doing is training our lawyers on bias. because if you hold a bias as defense attorney or prosecutor, that's going to affect the way that you trace and studies have shown con stift ently when you have an african-american client, that client is more likely to be convicted and is going to receive a poor disposition and will be sent to prison. >> so how do you treat a lawyer about implicit bias and make sure it doesn't happen? >> because we make assumptions about people. i can see somebody walking across the street and we make a

decision about them based on how they look. for example, i recently handled a case where i had a young african-american client charged with a gun possession and charged as a felony. a white individual was charged with the same crime, same background, no criminal history, and he was charged as a misdemeanor. i brought that to the district attorney and we ended up changing their rge charging decision. how did that decision get made who and why? and that's what we need to get to. >> do you want to add something to that? >> really this should not be a siloed work in progress. this requires the justice department to come together and deliver results. the fact that jeff had to advocate for the disparity between the two cases to the judge and itself is a reflection

that there is nothing systematic about how we make that wholesale change. and those are the recommends that i think we're putting forward. better data makes us more accountable. that's what is significant about this report. but there really does need to be some common agreement with the courts district attorney, public defender, the rest of us that we're going to make that commitment of making sure people are not disadvantaged with the criminal justice system. >> let's talk about your department now specifically. you're dealing with your own scandal inmates say they were forced by sheriff deputy to fight for entertainment. was racial bias at play? >> i can't tell you if racial bias is at play. >> i could. i think it was. because all of the inmates were of color and the deputies, at least the main deputy who was involved with this was white. and he had a history of sexual

assault of harassing in particular inmates of color. and it was extremely outrageous that he was allowed to remain on the job even though the city ended upset telling the case after they admitted that he sexually assaulted an inmate. these are the systematic problems that we need to address. when we have bad players, whether it's a police officer or whoever, we need to deal with that. >> i completely agree with that. >> what are we doing about it now? >> immediately when i learned of these incidents, i called out that there's going to be an immediate investigation, not just the local authorities but the fed the fbi. they had accepted our request. and so there is a criminal investigation underway right now. and an internal investigation resulted in the notice of

termination for one deputy and others that had been implicated, discipline hearings, too. we pounced on it and it's rare for a local i think, sheriff or law enforcement official to call in the fbi. it's usually the fbi that are required to come in. we pounced on it and it sets exactly the kind of direction that we need to go. that we're not going to leave any room to neglect this kind of experience. >> this has prompted you to have 30 body cameras worn this summer by your deputies at the county jail. how will those cameras be used and will the videos be available to the public? >> we're working on policy by inventing one that has never existed in california before. we would be the first county jail system to actually deploy body cameras. no prisons and jails really do that or not very many around the

united states. the call has been for law enforcement on the streets to wear them. i think that's an incomplete call. it should also extend to la enforcement that works in prisons and jails. the savings that we were able to unearth, $50,000 only buys our 30 cameras and once we're ready in our most dilapidated jail that has had historical problems, i believe, and the data will always be uploaded into a cloud system. but the policy has to reflect you know our adjustments for privacy rights, the law requires an adjustment for storage, how long, you know, and we'll work that out. >> real quickly, you had requested for additional funding from the mayor's office for more body cameras than just 30 and you did not get the funding. what do you think of that? >> i think he's playing politics with public safety quite frankly and i was overt about that at the board of supervisors

hearing because the police department got more than $60,000 for body cameras. again, if we're trying to be sensible about improving public safety and trust with law enforcement agencies then across the board we should be funding our agencies appropriately for these kinds of assets. >> okay. we will leave it there. thank you, gentlemen both of you for coming in today. public defender and sheriff thank you. >> thank you. and for all of kqed news coverage, go to kqed.com. i'm thuy vu. have a good night.

announcer: a kqed television production. man: it's like holy mother of comfort food. woman: throw it down. it's noodle crack. patel: you have to be ready for the heart attack on a platter. crowell: okay, i'm the bacon guy. man: oh, i just did a jig every time i dipped into it. man #2: it just completely blew my mind. woman: it felt like i had a mouthful of raw vegetables and dry dough. sbrocco: oh, please. i want the dessert first! [ laughs ] i told him he had to wait.