The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, a debate about the proposal to change the way inflation is measured, court reports on an English language case before the U.S. Supreme Court, and a state court decision in Hawaii on same- sex marriages, a Jeffrey Kaye account of NASA's mission to Mars, and a debate about eliminating nuclear weapons between retired General Horner and former Defense Secretary Schlesinger. It all follows our summary of the news this Wednesday. NEWS SUMMARY

JIM LEHRER: United Nations Secretary-General Boutros Boutros- Ghali has suspended his candidacy for a second term. The president of the U.N. Security Council said late today Boutros-Ghali told him of his decision. He has been opposed for re-election by the United States. No other candidates' names have been officially submitted to the Security Council. An independent commission today said the government's way of measuring inflation was wrong. The report said the Bureau of Labor Statistics in its Consumer Price Index overstates the inflation rate by 1.1 percent. That results in billions of dollars of excess federal payments. The report was submitted to members of the Senate Finance Committee who urged Congress to adopt its recommendations.

SEN. WILLIAM ROTH, Chairman, Finance Committee: I look up on this report as being of critical importance and that we should move as quickly as possible. I would like to see a movement this year, but that will depend on how fast we can develop the bipartisan consensus as to what needs to be done. But I want to emphasize that I think action is necessary promptly, rather than delay.

JIM LEHRER: At the White House, Spokesman Mike McCurry said President Clinton's official budget sent to Congress next February will not contain any adjustments to the Consumer Price Index. We'll have more on this story right after the News Summary. A group of retired high-ranking military officers began a call today for the abolition of nuclear weapons. Led by General George Lee Butler and General Andrew Goodpastor, the group said the United States should go for the elimination of nuclear arms throughout the world. Butler was commander in chief of the strategic air command in charge of America's nuclear arsenal. At a Washington news conference, he said those weapons were inherently dangerous and hugely expensive.

GENERAL LEE BUTLER, U.S. Air Force (Ret.): Accepting nuclear weapons as the ultimate arbiter of conflict condemns the world to live under a dark cloud of perpetual anxiety. Worse, it codifies mankind's most murderous instincts as a legitimate basis of warfare. Political and human consequences of the employment of a nuclear weapon by the United States of America in the post Cold War world, no matter the provocation, would irretrievably diminish our stature. We simply cannot resort to the very type of act that we rightly abhor.

JIM LEHRER: We'll have more on this story later in the program. The mission to Mars got off the ground this morning at Cape Canaveral, Florida. The Pathfinder probe left Earth at 1:58 AM, Eastern Time. It contains a solar-powered vehicle that will take pictures of Mars surface and beam them back to Earth. It will also evaluate the composition of rocks on Mars. The Pathfinder is expected to arrive July 4th of next year, after a journey of 310 million miles. We'll have more on this story later in the program. The U.S. Supreme Court heard arguments today over making English the official language of Arizona. Arizona voters adopted an English-only amendment to their state constitution in 1988, but lower courts struck it down. And in Hawaii today, a state court judge stayed his order legalizing same-sex marriages. He ruled yesterday that Hawaii must issue marriage licenses to gay couples. He said he was suspending his ruling so the state could appeal to higher courts. We'll have more on both of these legal stories later in the program. About 150,000 protesters marched again in Belgrade today. Demonstrators gained support from the courts. Ninety judges called for a re-examination of last month's local elections. A court sympathetic to President Milosevic's government annulled the victories of opposition party candidates in those elections. Students again called for Milosevic to resign after he shut down three independent radio stations yesterday. Today at the State Department in Washington, Spokesman Nicholas Burns announced the Voice of America would broadcast the programming of the banned Serbian station called V-92.

NICHOLAS BURNS, State Department Spokesman: And people listening to Voice of America will be able to hear free and unfettered criticism of the Serbian government, a fair and honest account of what's happening in the streets of Serbia, and they'll be able to hear actual programs in Serbia by Radio Station B-92 through the phone hookup. We think this is the very least we can do for the people of Serbia who are being denied free access to information.

JIM LEHRER: Burns said Serbian officials promised Deputy Secretary of State Strobe Talbott their government would not use force against the demonstrators. In France today, the government sealed some border crossings with Belgium, Germany, and Luxembourg. The move was triggered by yesterday's bombing in Paris that killed two people and injured thirty-five. Hundreds of soldiers and police officers patrolled the streets of Paris. No one has claimed responsibility for the blast. But French Prime Minister Alain Jouppe said it appeared to be the work of Algerian Islamic militants. They were held responsible for several such explosions last year. And that's it for the News Summary tonight. Now it's on to how to measure inflation, a court's report, a trip to Mars, and a nuclear weapons debate. FOCUS - MEASURING INFLATION

JIM LEHRER: Changing the Consumer Price Index, the way to measure inflation, is our lead story tonight. Our economics correspondent, Paul Solman of WGBH-Boston is in charge.

PAUL SOLMAN: The commission that waited today with a new plan to measure inflation actually comes after years of debate among economists, as well as periodic interest from politicians. We, ourselves, reported on the issue back in 1991, when we first looked at the Consumer Price Index better known as the CPI and whether it's overstated. Here's an excerpt from that report.

PAUL SOLMAN: Meet Harriet Shaw, professional shopper.

HARRIET SHAW: This price increased. It was $5.89 last month and now it's $6.69 per item.

PAUL SOLMAN: It's September 12th, and Shaw is gathering data for the government, price data from which the nation's most prominent index of inflation is computed, the Consumer Price Index or CPI.

HARRIET SHAW: This is $1.29. Last month, it was $1.67. It's not a sale price. It's a new regular price.

PAUL SOLMAN: Does our super shopper stop digging when she finds Preparation H going up and hair spray down?

HARRIET SHAW: No, no. And if it's more than a 10 percent change in price, I have to justify it, so I can question and ask them why it's gone down or why it's gone up.

PAUL SOLMAN: On any given day there are 330 Harriet Shaws in all parts of the country checking prices for the Bureau of Labor Statistics. The monthly CPI figure reflects the annual rate at which those prices seem to be rising.

HARRIET SHAW: And it's $37, and that's what it was last month, so there's been no change in the price.

PAUL SOLMAN: To see how the government determines inflation and how well it does the job, we spent a day in suburban Chicago with Shaw.

HARRIET SHAW: A lot of people are not aware of what the Consumer Price Index is.

PAUL SOLMAN: Well, here's what the Consumer Price Index is: A market basket of goods and services representing the budget of the average American, broken down into seven broad categories. There is housing, the biggest ticket, 41 percent of what we spend; food and beverages, 18 percent of the typical budget of which a third is spent eating out; transportation is also 18 percent; then there's medical, the fastest growing category now up to 6 percent; apparel, 6 percent; entertainment 4 percent; and finally other, the catch-all category that includes both tobacco and education. According to the Bureau of Labor Statistics, that's how we consumers spend our money.

PAUL SOLMAN: But for years, many economists have claimed that government shoppers like Shaw overstate the actual rise in price in three basic ways. Here's the first in an Omni Super Store. Consumers have been flocking to discount stores like Omni and getting lower prices, but the government has just started coming here.

HARRIET SHAW: Well, you select whatever you would purchase if you were the consumer.

PAUL SOLMAN: And what would you purchase if you were the consumer?

HARRIET SHAW: I would purchase something like this, this looks like a good lettuce, as opposed to maybe something that's smaller.

PAUL SOLMAN: The CPI changes the stores it surveys to keep up with consumers. But it switches a lot less quickly than the consumers do. So that's one reason the CPI may be overstated. Possible overstatement number 2, substitution, as when this Omni ran a special on peanuts, a 24 ounce jar for a mere 99 cents.

OLDER MALE CONSUMER: You can't beat that. That's cheaper than the glass is worth. Every time I bought one, the girl said one limit, so I bought one and my wife bought one, so we got two, one from each cashier, and then we got the sales check, went back to the sales check, they had another peanut for the same price, I went back with the cart, come back and got another one. I did that nine times, times two is eighteen. That's what I call a bargain.

PAUL SOLMAN: In other words, bargain hunters may choose to buy far more of a sale item, and, therefore, change what's in their market basket each time they shop. But the CPI assumes we continue to buy the same market basket of goods month after month. Finally, there's a third supposed source of bias. Consider advances in technology that keep delivering consumers more for their money. Here again, the CPI may be missing a drop in the cost of living and thus, overstating it.

HARRIET SHAW: Let me just verify all the information with you. It's a VHS HQ, okay, and the price is $399.95.

SPOKESMAN: $399.95.

HARRIET SHAW: And your sales tax percentage is 7 percent.

SPOKESMAN: 7 percent.

PAUL SOLMAN: The price for the VCR is the same as last month, but the product's been improved. You're spending the same, but you're getting more for your money.

PAUL SOLMAN: Okay. Well, that was our look at the subject in 1991. Now, back to the present, for a debate about the CPI and why it matters. Robert Gordon is a member of the commission that reported its findings today. He teaches economics at Northwestern University. Dean Baker is an economist at the Economic Policy Institute here in Washington. Gentlemen, thanks for coming in. Now, Professor Gordon, why was the commission formed? I mean, what's the big issue driving all of this?

ROBERT GORDON, Northwestern University: There are actually two big issues. One of them has to do with the federal government. We currently use the Consumer Price Index as it's published to decide every year how much to raise Social Security and a number of other retirement programs. We also use the Consumer Price Index to decide how to change the income tax rules; that is, when you go into a higher tax bracket and what your exemption should be. I'm going to give you an example of how important this use of the CPI is. Let's say that we determine, as we reported today, that the CPI overstates the increase in the cost of living by 1.1 percent a year, and let's say that Congress decided that instead of doing what it now does, it was to change the amount by which we adjust these different income tax and benefit programs by the same, 1.1 percent a year. It wouldn't go down. It would just go up slower. Do you know how much difference that would make? In merely 12 years, that would reduce the national debt to $1 trillion. So tonight we're discussing the trillion dollar question.

PAUL SOLMAN: So that's money that would be saved because we pay less--we get less in taxes, and we have high--we don't pay out as much in COLA's, in cost of living adjustments.

ROBERT GORDON: That's right. And this is not a new problem. It's been going on for a long time, and we have had a problem which we're trying to stop in which the elderly beneficiaries of Social Security are being more than compensated for the increased cost of living because of this mistake in the Consumer Price Index, and, as a result, their children and their children's children are going to have to pay higher taxes for all the interest on all that debt.

PAUL SOLMAN: Okay. So, Mr. Baker, this is a big change for people?

DEAN BAKER, Economic Policy Institute: It's a big change. Let me just point out, you know, there's certain logic here that's missing. Let's assume for the moment it's true--and I'd argue strongly I don't think this is true--but let's assume for the moment it is true.

PAUL SOLMAN: That it's being overstated.

DEAN BAKER: That it is being overstated. We're supposed to be concerned about our children and our children's children. This goes exactly the wrong way, because the story here, if we believe this, is that our children and our children's children will be way richer than we thought.

PAUL SOLMAN: Because you mean we aren't really--we don't have the inflation we thought we had?

DEAN BAKER: We have much more rapid growth, so I did the calculations. A typical family income, year 2003, will be over $90,000 a year in today's dollars. Furthermore, let's talk about those--our grandparents on Social Security who are supposed to be the greedy geezers. It turns out most of those people were living below what we would think of as poverty today during their youth because what it means is incomes have been growing more rapidly, people are much poorer than we had thought in the very recent past.

PAUL SOLMAN: But why wouldn't we make the adjustment then, when we'd just all be happy?

DEAN BAKER: Well, it's a question--you're going to be hurting a lot of people. Most elderly, the fact of the matter is their typical income is about $20,000, because they're not wealthy people. So if we cut back their Social Security, they're going to feel a real pinch.

PAUL SOLMAN: What about the elderly? I mean, aren't they actually spend--they are more reliant on Social Security, more reliant on cost of living increases, and they don't have the same market basket the rest of us do?

ROBERT GORDON: First of all, again, nobody is going to cut Social Security. All we're doing is talking about the rate at which it increases. Now, let's say that in 19--

PAUL SOLMAN: So right now it increases at 3 1/2 percent a year because thecost of living again would be 2.4 percent, because you'd take out that 1.1, is that what you mean?

ROBERT GORDON: Yeah. But at some point in the past, about 20 years ago, Congress said we're going to protect the beneficiaries of Social Security from the ravages of increases in the cost of living. But we did more than that because the Consumer Price Index was even more in error in the past than it is today. And so compared to working people who pay taxes, the elderly we have been steadily moving ahead. And so the group in our society that has the smallest incidence of poverty are the elderly receiving Social Security. Now, this generation of elderly recipients has benefitted from the great housing price inflation, 3/4 of retired people own their own homes or condominiums. They've enjoyed capital gains, which we are not including at all. In other words, that actually reduces their cost of living because they have the capital gains that they can apply to other expenditures.

PAUL SOLMAN: You mean, they could sell their house?

ROBERT GORDON: Yes. This generation of people over 65 has benefitted from the great housing price inflation and from the overstatement of indexation.

PAUL SOLMAN: So are the elderly, actually, have they been unfairly benefitted to this point, or are they going to be unfairly disadvantaged by this change, if it occurs?

DEAN BAKER: Well, it's hard to see how they could have been unfairly benefitted, because, keep in mind, let's assume that they're right, that incomes on the whole have been growing much more rapidly than we thought. So what's wrong with the elderly sharing in that? You know, why "shouldn't" they get a share if we're really much richer than we thought? I mean, that's what we're being told here. I don't believe that's true. But if we think it's overstated, we have to think that's true.

PAUL SOLMAN: Well, tell me why you don't think it's true. I mean, we saw the piece. And we've heard his arguments, at least, or his assertions. Why is it not--

DEAN BAKER: Okay. There's clearly some truth to all the things that have been put forward here, but what we have here is there's a lot of cases where we're seeing double counting, we look at substitution, and then we look at the retail outlet issue. There's often double counting in these things.

PAUL SOLMAN: I don't understand that.

DEAN BAKER: Well, suppose we were to look at some substitutions saying, well, people are getting cheaper goods, and we say this is good, the apples over here are cheaper than the oranges over there, but that's also coinciding with the retail outlet issue, that people are buying the apples at a discount store.

PAUL SOLMAN: Well, what about quality? I mean, the quality is a large part of what you claim the overstatement is about.

DEAN BAKER: Quality is very important and very hard to measure. And, in fact, Professor Gordon has done much of the leading work here, and I've looked at his own work, and, in fact, he shows a lot of evidence that the CPI overstated quality adjustments and, in fact, therefore understated the rate of inflation in a lot of goods back in the 70's and 80's.

PAUL SOLMAN: Well, you're right here now, so you can tell us what's the story on quality?

ROBERT GORDON: Well, everybody says, well, couldn't it be an error in the opposite direction? Is it really true that the CPI misses improvements in quality? Haven't they missed other problems that go in the opposite direction? Actually, the CPI's fixed a lot of the downward bias, the error in the opposite direction that we're talking about tonight. They used to understate the increase in prices of apparel. They used to understate the increases in the prices of housing. They used to understate the increases in the prices of automobiles because of the way they treated such items as anti-pollution devices. But in our study, which goes to this in much more detail than anybody has before, we break it out by periods of time. We're talking about what's true right now. They've actually fixed some of the errors that go in the opposite direction. And some new problems are emerging that are very serious, namely, the two most important. Things like the personal computer are getting more important, so they are now noticeably a substantial part of consumption. The prices are going down at 25 or 30 percent a year. And that's even an understatement.

PAUL SOLMAN: But aren't they getting harder to use? They break down more often. I can tell you about my personal computers; they're impossible. So, I mean--

ROBERT GORDON: I'll help you program it tonight after the program.

PAUL SOLMAN: No. But I mean they actually break down.

DEAN BAKER: There are problems with that also. The personal computer use of my own is almost all for business. That's why it's not counted. But there are other areas where they don't look at, for example, insurance, insofar as health insurance premiums go up, the health insurance, the rise in Medicare premiums. That's not even counted in the CPI. That's particularly important when you're talking about Social Security for the elderly, because they're almost sure to see very large increases in Medicare premiums.

PAUL SOLMAN: Isn't your basic argument--I mean I've heard you say this before--that basically the quality of life now is better than it was before, and we're not counting it, is that the nub of what you're saying?

ROBERT GORDON: That's right. And this report today is, if anything, a substantial understatement. We take into account some improvements that we tried to measure. Apartments have gotten bigger. They now have central air conditioning. There's an increased variety of food. There's an increased quality and better reliability of appliances, but there's lots of other stuff that we haven't taken into account that everybody knows is getting better. What about the quality of stereo sound? What about the quality of the color TV picture? What about the increased safety of power tools at home, the improved durability? You know, the average American automobile now lasts almost 50 percent longer than it did 20 years ago.

PAUL SOLMAN: Let me ask Mr. Baker--don't you think the quality of life has improved?

DEAN BAKER: Well, in a lot of ways, it has. In a lot of ways it hasn't. You know, I have to go off to the suburbs to do my shopping. If I go into a retail store, I probably have to wait much longer before I can go and get someone to wait on me. So there's a lot of ways in which we've seen deteriorations. On net, we are getting wealthier. That's not a dispute. The question is how rapidly and how much of that has picked up in the CPI, and I would argue, for the most part, it is picked up in the CPI.

PAUL SOLMAN: And so it's doing a good job, and you just think it's not doing a good job at all?

ROBERT GORDON: No. We've gone through 27 different pieces of the CPI, and it's not doing a good job. We only found seven of them that contained no bias at all. Let me talk to you about the good old days for a minute.

PAUL SOLMAN: Well, very briefly.

ROBERT GORDON: Okay. People say, oh, well, the air is dirty and we have more crime and everything. We looked at all that too. The air is getting cleaner, water is getting cleaner, the crime rates are going down, homicide rates are going down. We looked at almost every different aspect of the quality of life, and longevity has gone up by five years in the last two decades.

PAUL SOLMAN: The last word to you.

DEAN BAKER: There's a popular perception that things are getting worse. Now, it's possible that everyone's wrong, and this commission's right. I'm inclined to believe the CPI and most people.

PAUL SOLMAN: Thank you very much, gentlemen, both. FOCUS - SUPREME COURT WATCH

JIM LEHRER: Now, the Supreme Court hears a challenge to Arizona's English-only law. Our coverage begins with this report by Spencer Michels.

SPENCER MICHELS: Nine years ago, former immigration officer Robert Park lobbied the Arizona legislature to pass a bill mandating that official government business be done in English only. The bill failed, but Park and his group, Arizonans for Official English, qualified an initiative for the 1988 ballot, an amendment to the state constitution. It passed by less than 1 percent of the vote.

SPOKESMAN: (talking to gentleman) You have to be able to lift up to 50 pounds.

SPENCER MICHELS: According to Park, the measure was designed not to stop the speaking of Spanish in government offices like this job center, but rather to make sure government actions, laws, decrees, and documents be written only in English. It also declared English the official language of Arizona, a policy now embraced by 22 other states.

ROBERT PARK, Arizonans for Official English: All it requires is that anything that's binding on the state, any law, regulation, ordinance, whatever the case may be, must be in the English language to be enforceable.

SPENCER MICHELS: Park says he worked to pass the measure because he was disturbed that high levels of immigration put pressure on the government for bilingual ballots, education, and routine business.

ROBERT PARK: Official bilingualism. It's dangerous. It's not what we need in this country. We've got enough problems with ethnic groups and other people. All we have to do is look to our neighbors to the North in Canada and see what divisions are created by official bilingualism, where you have two official languages. It's tearing the country apart.

SPENCER MICHELS: Maria-Kelly Yniguez, a native Arizonan whose first language was Spanish, sees no such threat. In 1988, she handled medical malpractice claims at the state Office of Risk Management. She says that for her and her co-workers, the new law made it nearly impossible to serve some of their clients. So she filed suit, claiming the amendment violated her constitutional right of free speech and the rights of those clients who spoke only Spanish.

MARIA-KELLY YNIGUEZ, Former Arizona State Employee: And dealing with them, I had to speak Spanish. I had to negotiate settlements in Spanish, and I also drew up settlement documents in Spanish for them to sign. And I felt that it would be something that I would not be able to do if this amendment became law.

SPENCER MICHELS: Yniguez stopped doing state business in Spanish because she feared she could be sued under the new amendment.

MARIA-KELLEY YNIGUEZ: I am not a crusader. I feel very strongly about a people's ability to access their government. I feel strongly that those people in government that are able to assist them should be able to do that, whether it's in English or Spanish or whatever.

SPENCER MICHELS: After Yniguez and her attorney sued, a federal judge declared the amendment unconstitutional. Arizona's governor refused to appeal the verdict. Then Robert Park and Arizonans for Official English took up defending the law. But the 9th Circuit Court of Appeals agreed with Yniguez, that the measure was unconstitutional, and Park appealed to the U.S. Supreme Court.

JIM LEHRER: Now, more on today's arguments on this case before the Supreme Court, as well as on another court decision in Hawaii, and to Elizabeth Farnsworth.

ELIZABETH FARNSWORTH: We get that analysis from our regular Supreme Court watcher, Stuart Taylor, correspondent for the "American Lawyer" and "Legal Times." Thanks for being with us, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

ELIZABETH FARNSWORTH: First of all, on what basis did the lower courts decide that the Arizona law violated the constitution?

STUART TAYLOR: Both the federal district judge in Arizona and the U.S. Court of Appeals for the 9th Circuit in a six-five vote held that it violated the First Amendment right to free speech, because it would prevent state employees from communicating in a language they wanted to communicate to, for example, Spanish-speaking constituents, and because it would prevent non-English-speaking constituents from getting the services in an efficient way.

ELIZABETH FARNSWORTH: And what happened in the Supreme Court today?

STUART TAYLOR: Well, it became evident about 12 seconds into the argument that the Supreme Court was not going to decide the constitutional issue on the merits and that they think the case is shot through with procedural defects, and that it doesn't belong in the Supreme Court, and maybe more importantly perhaps, didn't belong in the lower courts. The thing--

ELIZABETH FARNSWORTH: Let me interrupt you. If it doesn't belong in the Supreme Court, why did they take it in the first place?

STUART TAYLOR: I think they took it to say that it didn't belong in the lower courts either. I think some of them at least and in question, it's not clear whether a majority of them want to not only to wipe out the appeals court decision and possibly the district court decision also on the ground that procedural defects in the case should have made it clear to them that this was not a case they should be deciding on the merits.

ELIZABETH FARNSWORTH: What do you mean procedural defects?

STUART TAYLOR: There's about five that I could count. The most obvious one is that the governor--then governor of Arizona Rose Mawford didn't like this amendment and made it clear she wasn't really fighting it, wasn't going to enforce it, and did not appeal the lower court decision striking it down. So Arizonans for Official English, a group that sponsored the initiative in the first place, jumped in and said, well, we'll appeal, we want to defend this. And it seems that a clear majority of the Justices of the Supreme Court thought they had no standing to appeal, they're just citizens; citizens can't just appeal things because they want to protect a law. You have to have a stake in it. The governor has a stake in it. She's not appealing--case closed. And that logic might lead them to believe that the 9th Circuit, the Appeals Court, didn't have jurisdiction over the case either. In addition, Justice Ginsberg said right at the beginning of the argument, and others said as they went along, that the case might well have been moot before the federal district court decided it in the first place. The reason for that is that while Ms. Yniguez's reason for suing is she was afraid she could be fired if she spoke Spanish on the job, the state attorney general issued a binding opinion construing, pulling the teeth out of this amendment and construing it contrary to its own language, as allowing people to speak Spanish on the job, for example, if it enables them to serve their constituents better.

ELIZABETH FARNSWORTH: So this is very interesting. The court did not take this to deal with the big constitutional issues, which are debated in the country. There are 20 other states--more than 20 states--that have laws like this. They took it to make a point about the lower courts?

STUART TAYLOR: Yes. That became clear today. It was already becoming a little bit clear when they took it because they didn't- -when they took it, they didn't say, okay, well, decide this case. They'd say, we want you to brief very carefully these procedural issues of standing in mootness, and it was utterly clear in today's argument that those are the only issues they're interested in deciding in this case.

ELIZABETH FARNSWORTH: So what happens next?

STUART TAYLOR: What happens next is that sooner or later, the Supreme Court will issue its decision. It's not quite clear whether they will just say this case doesn't belong before us, or whether they will also say, I think they'll also say it didn't--the appeal- -there was no jurisdiction to appeal, the Federal Appeals Court should never have decided this, and some of them indicated considerable incredulity at what they thought was the reaching out by the Appeals Court to find a way to decide it, to ignore the procedural defects. And they may wipe out the Federal District Court decision too.

ELIZABETH FARNSWORTH: So the law may stand in Arizona.

STUART TAYLOR: The law may stand. And even if they don't wipe out all those lower court decisions, it still stands in this sense. All that was issued by the Federal District Court was a declaratory judgment: This is unconstitutional. Various justices said clearly today that is not binding on anyone, including the state courts. Justice Ginsberg went so far as to say, so, it's a "Law Review" article.

ELIZABETH FARNSWORTH: Now, turning to the Hawaii case, a circuit court judge in Honolulu yesterday ruled that the ban on same-sex marriages in the state was unconstitutional and ordered the state to stop denying marriage licenses and then today stayed that order. Explain, please.

STUART TAYLOR: The background is that six gay people, three couples, one male couple and two female couples, tried to get marriage licenses in Hawaii in 1990. Predictably, they were turned down. Hawaii, like all other states, doesn't give marriage licenses to gay people. They sued. It went to the state Supreme Court, which in 1993 issued a ruling saying we think this is presumptively unconstitutional because it violates the ban against sex discrimination in the state constitution; we're going to send it back to the lower court to give the state a chance to prove that there's a compelling need for it anyway.

ELIZABETH FARNSWORTH: And what happens next with this one?

STUART TAYLOR: So they had a trial. The judge said there's not a compelling need for it. It now gets appealed to the Supreme Court, which will probably do the same. Meanwhile, opponents to the law are organizing to try and get a state constitutional amendment to overrule these decisions.

ELIZABETH FARNSWORTH: And the fact that it stayed means that people cannot go to Hawaii, people--lesbian or gay couples cannot go to Hawaii now and get married, even though the circuit judge made the decision he made yesterday?

STUART TAYLOR: That's right. And having held it unconstitutional, he quite obviously did that just as a matter of orderly procedure, let's not jump the gun here until the Supreme Court has the last word, the Hawaii Supreme Court. The U.S. Supreme Court will never hear this case.

ELIZABETH FARNSWORTH: Okay. Well, thank you very much, Stuart.

STUART TAYLOR: Thank you.

JIM LEHRER: Still to come on the NewsHour tonight, going to Mars, and eliminating nuclear weapons. FOCUS - MARS PROBE

JIM LEHRER: Now after two delays, a Mission to mars is on the way. Jeffrey Kaye of Station KCET-Los Angeles has our report.

SPOKESMAN: Zero and liftoff.

JEFFREY KAYE: Early this morning, a Delta Two rocket blasted off from Cape Canaveral, Florida. It is carrying Pathfinder, NASA's second spacecraft in a month destined for Mars. This rocket's red glare will end in fireworks July 4th, when Pathfinder is scheduled to make a fiery descent through the Martian atmosphere and land on the red planet.

DONNA SHIRLEY: On Independence Day 1997, Earth is invading Mars.

JEFFREY KAYE: Donna Shirley is manager of the Mars exploration program at the Jet Propulsion Lab, JPL, in Pasadena. She says this is one of a fleet of missions planned for the next decade.

DONNA SHIRLEY, Manager, Mars Exploration Program: Every 26 months, we're going to fly to Mars, with either one or two--with either one or two spacecraft, we'll fly to Mars every 26 months. SPOKESMAN: And we have lift-off of NASA's Mars Global Surveyor.

JEFFREY KAYE: Last month's launch of the Global Surveyor marked the beginning of a new NASA initiative to explore Mars. That spacecraft is expected to take 10 months to reach the planet. Its job is to orbit Mars for two years, measure the atmosphere, and chart its surface.

DONNA SHIRLEY: It carries a camera that is going to be mapping the whole planet every day so that we can see how the weather changes and what changes are going on on Mars. And there is another camera which takes high resolution pictures of the surface so that you would be able to see something about the size of a car.

JEFFREY KAYE: Pathfinder, the spacecraft launched today, is designed to execute a spectacular series of maneuvers. After takeoff, the spacecraft will jettison its launch rockets. In July, as it dives into the Martian atmosphere, friction will create a display of fireworks, and a parachute will pop out to slow the spacecraft down. Initially, the landing posed a dilemma for engineers. How could Pathfinder survive a crash onto the Martian surface? Flight software engineer Steven Stolper described the solution.

STEVEN STOLPER, Flight Software Engineer: The engineers were up late one night, thinking about it. And they were watching TV, and on TV, they saw a car commercial. And what would save someone from a crash in a car commercial? An air bag. Right before we land and hit the surface, we inflate four giant air bags, one on each side of the lander. So we're not only going to hit, we're going to bounce. And our first bounce should take us over an eight-story building. So we're going to bounce, and we're going to roll. We're going to tumble. And eventually, we're going to come to rest on the surface of Mars.

JEFFREY KAYE: At that point, the air bags deflate to reveal the pyramid-shaped lander. The lander must open properly to release a remote-controlled rover designed to wheel around and explore the Martian surface. Stolper built a model of the Lander to study another potential problem. What if the thing lands the wrong way?

STEVEN STOLPER: But if we land on the wrong side, what we do is the computer selects the down-most petal, and itchooses to open the down-most petal--and once we reach our base petal, we open up like a flower.

DONNA SHIRLEY: And the rover is sitting on one petal, and there's a camera in the middle, and so the camera goes up on a stalk and takes pictures, in stereo, and 12 different colors. Those pictures are sent by the lander back to the Earth. The rover stands up and roams around, and that's how we do the mission. Brian Cooper, who's the operator, puts on three-dimensional goggles, looks into the scene, and can see, you know, how far away the rocks are, for example.

JEFFREY KAYE: He has a driver's seat view of what the lander is seeing.

DONNA SHIRLEY: He has a driver's seat view. Exactly. And the scientists do too, because that same data is there for the scientists. So the scientists will all be crowded around a screen, arguing with each other about what rock to send the rover to, and once they decide, they say, "Okay, Brian, we want that rock." And then Brian takes a mouse and with an icon of the rover, a little picture of the rover, and he puts it on that rock, and he goes "click" with the mouse, so she goes off in the direction--she knows where she is--so she goes off in the direction from where she is to where the rock is.

JEFFREY KAYE: The 25-pound rover is powered by solar energy and batteries. It is a science lab on six wheels, equipped with a camera and a unit called an "Alpha Proton X-Ray Spectrometer," that's a sort of a high-tech nose, designed to analyze the composition of Martian rocks. JPL scientists have been test driving a twin version of the rover. It has been programmed to move cautiously and climb rocks. When it gets to Mars, scientists will program the rover once a day. Because of a 10-minute delay in getting a signal to Mars, the rover has to have a mind of its own.

DONNA SHIRLEY: The rover is about as smart as a bug and, in fact, uses a control scheme based on insect behavior. But if the operator were to watch the rover in real time, and the rover were heading for a cliff, the operator would say, "Don't fall over the cli-i-i- ff," because it would be 10 minutes before he could say, "No, no, don't do that." So that's why the rover has to be able to take care of itself, understand that those are obstacles, go around the obstacles, and if she can't get around the obstacles, she stops and calls home and says: "Help, I can't get around this obstacle."

JEFFREY KAYE: At another JPL test site, engineers have set up a "Mars Room"--a large sand box with a mockup of the lander and rover.

JEFFREY KAYE: And what's the role of the lander? ROB MANNING, Flight Systems Engineer: The lander is our eyes and our main communications mechanism for--between Pasadena and Mars. All commands that we send to Mars go to the lander. The lander then communicates directly with the rover with a small antenna.

JEFFREY KAYE: The lander also has a set of instruments designed to send Martian weather reports back to Earth. The Mars missions are designed to pick up where other projects left off--but at a fraction of the cost. Under NASA's new philosophy of "better, faster, cheaper," the current Mars missions cost $500 million--12 percent of the Viking spacecraft which went to Mars in 1976. Viking sent back images of volcanos, dust storms, polar regions, canyons, and valleys the size of the United States, as well as evidence of lake beds and streams. In six years, Viking transmitted more than 55,000 photographs, to the delight of scientists. But the Viking program was an exception. Of the 25 U.S. and Russian missions to Mars since 1960, two thirds ended in failure, so still, the mystery remains.

DONNA SHIRLEY: Did life ever start on Mars, because it is the only other place in the solar system that we think had a good chance of life starting. Now, we know that life is not running around easy to find, because the Viking missions did not find any, and they were looking very hard. And we know there are no little green people running around. But we don't know whether there are bacteria inside the rocks.

JEFFREY KAYE: Speculation about life on Mars has been fanned by recent discoveries of organic traces in meteorites that apparently fell to Earth from Mars.

ROB MANNING: By knowing what the composition of the rocks, we can infer their origins. And, in fact, we're landing in an area where there's rocks from all different areas from the highlands of Mars, because we're landing in the outflow channel of a large flood. With all these varieties of rocks, we can infer a bit about the history of Mars, and in particular answer the key questions-- how long water was on the surface of Mars. Of course, that addresses the more key question of was there life on Mars early on, and, if so, how long did it last?

JEFFREY KAYE: And that's what the big mystery is, right--what happened to the water?

ROB MANNING: Exactly.

JEFFREY KAYE: Understanding what happened to the water could not only provide clues about past life on Mars but about future life on Earth.

DONNA SHIRLEY: Mars and the Earth kind of grew up together, like siblings, and Venus too. So here's three rocky planets, and they all evolved out of the solar disk at about the same time. And then somehow or other, Mars got real cold, lost most of its atmosphere, Venus got real hot, and got more atmosphere than you ever want. And Earth stayed just right. Now why is that? So we go to Mars partly to learn about Mars, but also to understand the Earth and our place in the universe.

STEVEN STOLPER: Now the other thing you were talking about, the water--as someone who might want to live there one day, where that water is is very important to me, if we ever decide to go to Mars as a people, as a nation.

JEFFREY KAYE: Are you really serious about that? I mean, maybe you have plans to move. I don't know if you do. I don't know if I do. I mean, is this what this is all pointing towards, do you think, colonizing Mars?

MANNING: My view is that there--I am just curious. I want to know where Mars--it's Mars' early history--I want to know how Mars' evolution affects--affected our evolution.

STEVEN STOLPER: Okay. I differ from Rob there. I see myself as pragmatic. We've learned a lot about Earth. We have problems here on Earth. We're running up against resource constraints, environmental questions, population questions, and also, a little bit of adventure. I would like to go to Mars, if it's at all possible, in my lifetime. And I'm not willing to rule that out as a wish.

DONNA SHIRLEY: I think the fascination with mars, and the pioneering spirit about people who want to explore Mars, is very analogous to the pioneering spirit of the--that took us to the American West and the exploration of the world. And that's our near-term horizon, that's our near-term frontier, is Mars. And we're going to send our robots there until we decide it's safe enough and interesting enough to send people there.

JEFFREY KAYE: Shirley says the U.S. is discussing future joint missions to Mars with European, Russian, and Japanese partners. FINALLY - NO NUKES

JIM LEHRER: Finally tonight, the role of nuclear weapons in the post-Cold War world. Today, two retired American generals called for the immediate reduction and eventual elimination of nuclear weapons. Margaret Warner has the story that includes a debate taped earlier this evening.

MARGARET WARNER: Nuclear weapons have been used in war only once- -51 years ago--when the United States dropped atomic bombs on the Japanese cities of Hiroshima and Nagasaki in the final days of World War II. In the decades since then, many more nations have developed or acquired nuclear weapons. Most of the world's estimated 35,000 nuclear warheads are controlled by the U.S. and Russia. But there are six other nuclear states as well: France, Britain, China, Israel, Pakistan, and India. The world's closest brush with nuclear war came in 1962, during the Kennedy administration, when the Soviet Union installed missiles in Cuba that were capable of hitting the U.S. with nuclear weapons. The showdown brought the U.S. and Soviet Union to the brink of war before Moscow was persuaded to remove the missiles. Throughout the Cold War, the U.S. and Soviets kept increasing their number of nuclear warheads, though in later years, the pace at which their stockpiles grew was negotiated in various arms control treaties. Both countries operated under the theory that their best protection from nuclear attack was to maintain a nuclear force strong enough to annihilate any aggressor. In the 1980's, President Reagan and Soviet President Mikhail Gorbachev began for the first time negotiating actual reductions in their nuclear arsenals. Since then, with the end of the Cold War, the U.S. and Russia have cut their stockpiles nearly in half. Yet, the Cold War's end and the dissolution of the former Soviet Union have also raised fears about the security of the remaining Russian stockpiles. Today, two retired U.S. generals said that the reductions negotiated up till now are not nearly enough. Retired Air Force General Lee Butler, former commander of the U.S. Strategic Air Command, spoke at the National Press Club in Washington.

GENERAL LEE BUTLER, U.S. Air Force (Ret.): Is it possible to form a global consensus on the propositions that nuclear weapons have no defensible role, and that it's true weapons of mass destruction, the case for their elimination is a thousandfold stronger and more urgent than for deadly chemicals and viruses already widely declared immoral, illegal, subject to destruction, and prohibited from any further production. I am persuaded that such a consensus is not only possible, it is imperative.

MARGARET WARNER: A similar statement is expected tomorrow from another group of retired generals from 17 nations, including the U.S. and Russia.

MARGARET WARNER: Two views now. They come from Retired Air Force General Charles Horner--who will be joining in the statement tomorrow; he was the allied Air Force commander during the Gulf War--and James Schlesinger, who was Secretary of Defense in the Nixon administration. Welcome, gentlemen. General Horner, why have you decided to join General Butler in issuing this call?

GEN. CHARLES HORNER, U.S. Air Force (Ret.): I don't think I'm necessarily joining General Butler. I think General Butler and I both see the diminishing utility of nuclear weapons and the need to develop some post-Cold War national strategy that addresses the problem of nuclear weapons and their proliferation.

MARGARET WARNER: Do you agree with what he said today, that we ought to be aiming toward the ultimate elimination of all nuclear weapons?

GEN. CHARLES HORNER: I think it's important we have some coherent strategy, and fundamental to that strategy needs to be some goals. And certainly one goal that we need to examine is the complete elimination. Whether or not we get there or not is another matter.

MARGARET WARNER: But it's still worth pursuing.

GEN. CHARLES HORNER: It's worth having reasonable goals to pursue.

MARGARET WARNER: Do you think the ultimate elimination of all nuclear weapons is a reasonable goal?

JAMES SCHLESINGER, Former Secretary of Defense: It is an unachievable goal, and it is a perilous, potentially perilous, goal. Happily, it is unachievable, because if it were not, it would be quite dangerous to the country.

MARGARET WARNER: And why is it perilous?

JAMES SCHLESINGER: It is perilous because the smaller nuclear weapons inventories group, the greater is the premium on having just a few nuclear weapons. Under those circumstances, the inhibition on the use of nuclear weapons would diminish. The chief inhibition on the use of nuclear weapons today is the knowledge that there are powers--most notably the United States--that are in a position to retaliate if weapons are used. We no longer have an initiation of nuclear use, as we did during the period of the Cold War, when the Warsaw Pact and the Soviet Union appeared to be so formidable, but we must continue to have a deterrent to deter the use of nuclear weapons.

MARGARET WARNER: How do you feel about that point about the utility of a nuclear deterrent in this new world?

GEN. CHARLES HORNER: I certainly agree with the Secretary with regard to the fact that nuclear weapons, the genie's out of the bottle, they're always going to be around, either virtually or in reality. And so that is a problem that has to be addressed. But I think also the idea of using nuclear weapons to deter nuclear weapons works within the sense of say Russia or the Soviet Union against the United States. But the idea of using nuclear weapons to deter say an irrational actor, or an actor who's rational enough to believe that no American president would use nuclear weapons on him really decreases the utility of them as a deterrent factor. The other point, keep in mind, is every time you use a nuclear weapon, it's most effectively used against cities, killing of women and children. So I believe, fundamentally, you have to deter against people having nuclear weapons, but you must do that with very strong conventional forces, such as B-2's and laser-guided bombs and things of this nature. We now have conventional strength that really can offset a very limited nuclear strength.

JAMES SCHLESINGER: Well, it is true that we have vastly improved in terms of our conventional capabilities. We are now dominant in that area, and, therefore, we now prefer to use nuclear-- conventional capabilities to nuclear capabilities. The problem is that other nations and extremist groups that are not national groups don't necessarily want to play in accordance with our rules or new rules. That includes the Russians, the Chinese, the Indians, whose chief of staff recently observed about the Gulf War that the only lesson of the Gulf War is that you never fight the United States without nuclear weapons. The Israelis, who are in a perilous position in their own view, are not likely to surrender their nuclear weapons, because a few generals in the outside world, a few Russian and American generals have decided that it's improper. They will not trust the verification capacity of the United Nations that has done so well against Saddam Hussein and prospectively against Rafsanjani.

MARGARET WARNER: But you're both saying that the biggest danger isfrom the non-traditional nuclear states, or even non-states, but you're saying, Mr. Schlesinger, that you think having a powerful deterrent force still is most effective, and you're saying, it's not effective. I mean--

GEN. CHARLES HORNER: I'm saying that nuclear weapons, their utility as a deterrent force goes down very rapidly under a whole host of given circumstances. In the Gulf War, for example, we had to be very careful on our use of precision munitions in the Baghdad area. Well, does that mean then that we'll be quite willing to go in there and use a nuclear weapon to level Baghdad in order to impress a point that we do not want these weapons to proliferate? I think the point that the Secretary brings out about the whole host of new threats that are occurring around the world drives the need to come to grips with possession of nuclear weapons and the whole nuclear weapons question. And that's what I want to see put on the agenda. I want to see people arguing how many, instead of just accepting the idea that these things have great utility, because they have less and less and less utility.

JAMES SCHLESINGER: There is the possibility of better control. There is the possibility of reduction in numbers. We ought not and we cannot totally achieve the abolition of nuclear weapons. There are some actors on the international stage that cannot be deterred, but there are other, traditional actors, who are likely to be deterred. Recently, during the Taiwan Straits crisis, one of the Chinese generals--this has been exaggerated in the press--but he did say--he did say kind of provocatively that Los Angeles was more important to the Americans than Taiwan. The Chinese, as the "New York Times" indicated yesterday, rest their military prowess on this limited nuclear capability. They are not going to be persuaded to give up, but they can be deterred.

MARGARET WARNER: Do you agree with what Mr. Schlesinger said, that this goal is unachievable?

GEN. CHARLES HORNER: I agree that we must always be prepared to live in a world where there are a limited number of nuclear weapons, but that should not keep us from trying to work towards eliminating those remainders. With regard to countries like China, Britain, France, Israel, it's important that we begin the effort to reduce nuclear weapons, as we have in Start I and Start II, and that we continue that working with these people. Now, China is a rational country. We may find at some point in time we have reached a point where we can escalate down their arsenal, as well as Russia and the United States, and the other people. Another thing to keep in mind. If we don't work this issue, we face situations like where India and Pakistan fight each other, and they use nuclear weapons. Now, we as a nation may not care whether they do so, but the fallout from those attacks will land on our nation and severely damage the economy of the whole world. That's why it's important that we begin the effort to reduce nuclear weapons.

MARGARET WARNER: So what are you saying now that this administration and the current military establishment should be doing that it isn't doing, in terms of working this issue, as you put it?

GEN. CHARLES HORNER: I think fundamentally we have to recognize that we need new national security policy, and that policy has to go from the Cold War policy of deterrence and containment and the existing Cold War armies that are still in the field in the ballistic missile silos and on submarines and work towards reduction of those forces beyond where we are now at Start II. Then I think we have to have some rational--

MARGARET WARNER: Start II being the most recent, but still--

GEN. CHARLES HORNER: Yes.

MARGARET WARNER: --unratified in Russia--the treaty with Russia.

GEN. CHARLES HORNER: And as we go down, we're going to have to include more and more nations into this, and we're going to have to work the proliferation of weapons of mass destruction as a part of this very much.

MARGARET WARNER: And you don't see that kind of commitment currently?

GEN. CHARLES HORNER: I don't see a rational strategy that addresses these issues.

MARGARET WARNER: All right. What's your view of that?

JAMES SCHLESINGER: We need, as General Horner says, to re-look national strategy and military strategy in the wake of the Cold War, but we must recognize, as General Horner indicated, that that genie can never be stuffed back in the bottle. You cannot expunge from the mind of man the knowledge of producing nuclear weapons. Indeed, there's more and more fissile material around the world, most notably in the Russian arsenal. This is what is referred to as "loose nukes." Those will continue to be a problem, and we are going to have to guard against that in all the foreseeable future.

MARGARET WARNER: General Horner, let me close by asking this: You spent a lifetime in the military. When did you start coming to this view?

GEN. CHARLES HORNER: I came to the realization that nuclear weapons had very little utility during the Gulf War, when I realized that even if Saddam Hussein used a nuclear weapon on us, we would have to retaliate on a conventional basis. And then later, when I became the owner, so to speak, of the land-based ICBM force, and I saw the vast amount of money and resource that was involved in maintaining the large Cold War level of nuclear weapons, I said there's got to be a better way. And then finally, I said this is not going to be an easy process. We're going to have to build trust, we're going to have to recognize this is a different world. We're going to have to recognize that we'll always be living with things like virtual weapons, as the Secretary said. But that doesn't mean we shouldn't begin the journey, and it's going to be a long journey. It takes longer to get rid of a nuclear weapon than it does to build one. So we're talking about decades, or maybe even half a century, but that doesn't mean we shouldn't begin to develop the vision and the goals needed to progress on this issue. It's too important to the world.

JAMES SCHLESINGER: Now, let me add one word to that. A problem that you have is that we are using nuclear weapons not only to deter the use of nuclear weapons but Sec. Perry said recently that if Saddam Hussein were to use chemical weapons against us, that we'd reserve the right to use nuclear weapons in response. If we are going to do as General Horner says, we are going to have to learn to deter the use of chemical weapons and biological weapons, and not just assume that the nuclear weapons are there to respond not only to nuclear attacks but to other attacks, as well.

MARGARET WARNER: So I take it that--

JAMES SCHLESINGER: There's confusion in our policy, and we need some of this new thinking.

MARGARET WARNER: All right. Gentlemen, we have to leave it there. Thank you both very much. RECAP

JIM LEHRER: Again, the major stories of this Wednesday, United Nations Secretary-General Boutros Boutros-Ghali said he was suspending his candidacy for re-election to a second term. A White House spokesman said the United States welcomed that decision. An independent commission said the federalgovernment's inflation figures were overstated by 1.1 percent, and NASA launched a Mars probe to beam back pictures of the planet after it lands there in July 1997. We'll see you online and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.