The U.S. Supreme Court will hear oral arguments this week in two same-sex marriage cases. One is a challenge to California’s Proposition 8, which bans gay unions. The other asks whether the Defense of Marriage Act is constitutional. Known as DOMA, it prohibits the federal government from recognizing same-sex marriages, even in states where they are legal. Recent polls have given supporters of same-sex unions hope. Many show Americans’ attitudes have shifted strongly in their favor. Opponents point out that only a handful of states has approved such marriages and predict the justices will decide the cases narrowly.

Guests

  • Evan Wolfson founder and president of Freedom to Marry.
  • Robert Destro professor of law and director of the Interdisciplinary Program in Law & Religion Columbus School of Law at The Catholic University of America.
  • Jeffrey Rosen professor at George Washington University Law School, legal affairs editor of The New Republic, and author of "The Supreme Court: The Personalities and Rivalries that Defined America" and co-editor of "Constitution 3.0."

Transcript

  • 10:06:55

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Tomorrow and Wednesday, the U.S. Supreme Court will hear arguments into different same-sex marriage cases on California's Proposition 8 and the Defense of Marriage Act. Just last week, a Washington Post-ABC News poll showed a majority of Americans, 58 percent, support the right for same-sex couples to marry. But only nine states, plus the District of Columbia, have laws that allow it.

  • 10:07:30

    MS. DIANE REHMJoining me in the studio to talk about these closely watched cases: Robert Destro of the Catholic University of America, Jeffrey Rosen of George Washington University Law School and Evan Wolfson of the advocacy group, Freedom to Marry. I know many of you will have thoughts you'd like to put forward. You're always part of the program. Give us a call, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. And good morning, gentlemen.

  • 10:08:11

    PROF. ROBERT DESTROGood morning.

  • 10:08:11

    PROF. JEFFREY ROSENGood morning.

  • 10:08:11

    MR. EVAN WOLFSONGood morning.

  • 10:08:12

    REHMJeffrey Rosen, let me start with you and get you to briefly explain what DOMA and Proposition 8 are all about.

  • 10:08:24

    ROSENBoth DOMA and Proposition 8 define marriage as a state between a man and a woman. In California, Proposition 8 have the effect of overturning by popular referendum a decision by the California Supreme Court that the right of marriage equality is fundamental and protected by the California Constitution. In the case of DOMA, the federal government, in response to lower court opinions in Hawaii recognizing a right to gay marriage, defines marriage for federal purposes as between man and a woman.

  • 10:08:55

    ROSENAnd in particular, Section 3 of that act had the effect of denying federal benefits to gay and lesbian spouses who were validly married in states like Massachusetts and California and so forth. So broadly, the question before the court is, are each of these acts constitutional or not? The court could roll -- rule narrowly in each case.

  • 10:09:17

    ROSENIt could hold, as the lower court in California did, that having granted a right to marry, California may not take that right away, that that's a stigmatic act that basically disadvantages gays and lesbians. A decision upholding California on that narrow ground would guarantee people the right to marry in California but would not create a right to marry for the entire country. Similarly, the court could strike down the benefits provision of the Defense of Marriage Act without creating a national right to gay marriage.

  • 10:09:47

    ROSENHowever, the court could rule more broadly and say, because gays and lesbians are a particularly vulnerable class, because the right to marry is fundamental, then it must be recognized across the entire nation.

  • 10:09:58

    REHMIn either case, Bob Destro, could the justices rule in such a way that would allow same-sex marriages in all states?

  • 10:10:14

    DESTROThey certainly could. They could adopt the reasoning of the lower court, which was basically that any law or rule that only allows for heterosexual marriage is designed to be hateful and spiteful and discriminatory against gays and lesbians. If they did that, then you're having a same-sex marriage across the country.

  • 10:10:37

    REHMI wanna come back to the issue of standing. It's something I'd like to understand better. Jeffrey, it's active in both Prop 8 and DOMA.

  • 10:10:55

    ROSENStanding is a technical doctrine that says that there has to be a live case or controversy for a court to have jurisdiction to hear the case to begin with. And in the case of Prop 8, California state officials, starting with the governor, have decided not to defend the constitutionality of the proposition, therefore, raising the question of whether anyone really has standing to challenge the lower court decision striking it down.

  • 10:11:20

    ROSENSimilarly, in the case of the Defense of Marriage Act, the Obama administration has chosen not to defend constitutionality of the Defense of Marriage Act. The leading defenders of it are a bipartisan group, led mostly by House Republicans. Nancy Pelosi has joined the House Republicans on the issue of standing and question whether the court really has jurisdiction to hear the case or not. But the question is whether Republican congresspeople who may have supported DOMA originally have standing to defend the act is very (unintelligible)

  • 10:11:51

    REHMThere is a woman named Winsor who was very much involved, had to end up paying some $363,000 in taxes because she had been in a lesbian relationship. Evan Wolfson, explain what happened there.

  • 10:12:18

    WOLFSONWell, actually, it's not because Edie Windsor is in a lesbian relationship. Edie Windsor was in a relationship with her partner for more than 40 years. They got legally married. They were married. And unfortunately, part of their marriage and their longer relationship consisted of Edie caring for Thea as she got sick and eventually died.

  • 10:12:39

    REHMI see.

  • 10:12:40

    WOLFSONWhat ordinarily would happen is a married couple who has a death, the survivor would be entitled to protection and shielding from high taxes, a state tax. But Edie Windsor was socked with 300-plus thousand dollar tax bill even though had she been married to Theo instead of Thea, she would not have been socked with that bill and that because of the so-called Defense of Marriage Act, which discriminates against the lawful marriages that couples like Edie and Thea have.

  • 10:13:12

    REHMSo if the court were to rule narrowly, how would Edie Windsor be affected?

  • 10:13:21

    WOLFSONWell, 10 federal rulings up to now from judges appointed by Presidents Nixon, both Bushes, Reagan as well as Clinton and Carter have all found that kind of gay exception to the normal way in which the federal government treats gay couples as opposed to other couples who are legally married have found that unconstitutional. And so what we are hoping the Supreme Court will do is say the federal government can't have a gay exception. When couples are married, they should be treated as what they are, married.

  • 10:13:52

    WOLFSONOnce couples are legally married, whether in the states or in countries like Canada or Spain or South Africa or the 14 countries around the globe that now have gay couples sharing in the freedom to marry, the federal government should stick to the 200-plus-year tradition in constitutional practice of honoring those marriages, not destabilizing them.

  • 10:14:13

    REHMEvan Wolfson, he is founder and president of Freedom to Marry. If you'd like to join us, 800-433-8850. Jeffrey, you have talked about an anti-gay animus in the Prop 8 campaign. Explain what that means and how it could affect the cases that comes before the court.

  • 10:14:42

    ROSENIn order to uphold Proposition 8, courts would have to find that there was some rational reason for removing this right that had been granted that was separate from anti-gay animus because the Supreme Court has said that anti-gay animus is not a legitimate or rational purpose for laws. There's another thing that the court has said. Maintaining tradition for its own sake is not a rational reason for upholding a law. The court said that in striking down the Virginia military institutes, same-sex exclusion.

  • 10:15:13

    ROSENThis is a really a bind for people who are challenging Prop 8 and supporting DOMA because the real reason that most people in California voted for Prop 8 -- presumably some objected to same-sex marriage on religious grounds, but the Supreme Court views that as a form of anti-gay animus. It says moral disapproval is not a legitimate reason. Similarly, others just wanted to preserve marriage because it was traditionally recognized as between a man and a woman. But the court has said you can't do that either.

  • 10:15:40

    ROSENThat's also an impermissible reason. So that what leaves supporters of Prop 8 coming up with other reasons to justify it, and frankly, the main one that's being put forward is an interest in responsible procreation. The idea is that because straight couples may have impulsive intimate activity that lead to unplanned children, you have to shore up the institution of marriage to persuade them to procreate responsibly. And several lower courts have found this wasn't the real reason that people passed Prop 8.

  • 10:16:09

    ROSENAnd in any event, there's no rational connection between denying gay couples the right to marry and persuading straight couples to act responsibly. So really, it's almost a litigation bind for the anti-gay rights side that the real reasons that they're offering to support these laws are ones that the Supreme Court has ruled out of bounds.

  • 10:16:27

    REHMBob Destro.

  • 10:16:28

    DESTROWell, this is one of those places where Oliver Wendell Holmes' comment, that a page of history is worth a volume of logic, and if you go back in history, the first gay rights, the first same-sex marriage case was filed in 1971 in a case called Baker v. Nelson where the court refused -- the Supreme Court refused to find a federal question. And so that's actually one of the issues that's involved before the court.

  • 10:16:55

    DESTROAnd then fast forward to 1993 where the Hawaii Supreme Court in a case called Baehr v. Lewin ruled that the Hawaii Constitution, you know, might have a -- has a right to marriage equality in it. What you saw then was a flurry of activity, and so, you know, another conceivable and certainly rational reason for DOMA was -- and if you read the (unintelligible) article as you saw this is that people didn't want judges changing the basic foundational premise of what Marriage is.

  • 10:17:27

    DESTROAnd so one of the first parts of DOMA was that states don't have to recognize out-of-state marriages, you know, that violate their public policy. That's a standard rule in what we call conflict of laws, and so states don't have to recognize polygamous marriages. I mean, there are all kinds of cases like this where you have somebody coming in from out of the country and they have kind of other kinds of marriage forms.

  • 10:17:54

    DESTROThe federal government has been in the marriage business, you know, since the 1800s when they ruled out polygamy in the territories. And one of the biggest cases, United States v. Reynolds, you know, was all about the first marriage fight. And so anyway, there's a long history here and it's not all about gay animus.

  • 10:18:14

    REHMEvan.

  • 10:18:15

    WOLFSONWell, first of all, let's be very clear. The so-called Defense of Marriage Act doesn't say anything about polygamy or public policy or anything else. It creates a gay exception and says that the only category of states that the federal government will not -- sorry -- of marriages that the federal government will not respect are those of gay people. And it says the only marriages that states don't have to respect are those of gay people.

  • 10:18:38

    WOLFSONAnd when we talk about what the Hawaii court did or other courts did, we're not talking about some new right. We're talking about the same freedom to marry and whether the government has a good reason for excluding gay couples from it.

  • 10:18:50

    REHMShort break. We'll be right back.

  • 10:20:05

    REHMAnd we are back talking about two court cases that will be heard by the U.S. Supreme Court this week, one on the Defense of Marriage Act, the other on California's Prop 8, both having to do with same-sex marriage. Here's an email from Elizabeth, and if you would, Jeffrey, a few years ago, Ohio passed a constitutional amendment disallowing same-sex marriage. If the Supreme Court decides in favor of same-sex marriage, will that invalidate Ohio's constitutional amendment?

  • 10:20:53

    ROSENA very good question, in that Ohio amendment, like other states' amendments, was passed in the wake of the Massachusetts Supreme Court Goodridge decision which recognized the right of same-sex marriage in Massachusetts. The answer to the question is it depends whether the court rules broadly or narrowly. If the court rules narrowly and says merely that California, having granted this right, may not take it away, that would not in any way interfere with Ohio's ability to restrict the definition of marriage to a man and a woman.

  • 10:21:19

    ROSENBy contrast, if the court rules that marriage is a fundamental right and that any laws discriminating against gays and lesbians are presumptively a suspect, then that Ohio amendment could be struck down as well.

  • 10:21:31

    REHMThere's been lots of talk about children, Bob Destro, given the fact that California and most other states do allow gay people to adopt children. Why is it relevant that -- or whether children do better with gay or straight couples?

  • 10:21:56

    DESTROWell, it's not a question of whether children do better or worse. It's really a question of whether or not you make a distinction between heterosexuals and homosexual couples. I mean, that the -- you wouldn't need the institution of marriage. Marriage -- if you just had -- if marriage was simply a relationship between two adults with no possibility of procreation involved in it, you wouldn't register those relationships. There'd be no need to. And the marriage historically and across the globe has been a structure for the raising of children.

  • 10:22:31

    DESTROSo the rights of children, I mean, the international human rights treaties all recognize that children have a right to a stable family. Now, you can get into a big argument about whether gay couples and straight couples are families. That's not the -- that's really not the issue here. But the issue that is it rational to distinguish between heterosexual and homosexual couples, that really is about procreation, because only heterosexual couples can have kids, even today.

  • 10:23:00

    REHMEvan.

  • 10:23:00

    WOLFSONYeah. Well, first of all, we're not talking about procreation licenses. We're talking about marriage licenses. And many people, gay and non-gay, marry without regard to having kids or whether they have kids. They want the companionship, the commitment, the love, the care, the dedication, the family connectedness that comes with marriage. And we don't have a procreation requirement in marriage. But at the same time, many gay people, of course, are raising kids, and many of those gay parents, like non-gay parents, do want to bring up their kids within a structure of support.

  • 10:23:32

    WOLFSONAnd that's why all the leading psychological public health, medical and child welfare authorities in this country have said now and have filed briefs in front of the court saying that ending the exclusion for marriage would actually help those kids while hurting no one. If we care about kids, then what we should wanna do is give kids the support and structure and stability that we hope marriage brings, and that many gay parents like non-gay parents want to marriage for in order to have.

  • 10:24:02

    REHMYou must be particularly encouraged by these new polls, public polls about gay marriage.

  • 10:24:11

    WOLFSONI am very encouraged, because what it shows, the latest poll, as you said, showed 58 percent of the American people. Eighty-one percent of younger Americans support the Freedom to Marry. For that matter, 65 percent of evangelicals under the age of 32 support the Freedom to Marry. Sixty...

  • 10:24:28

    REHMYounger people...

  • 10:24:29

    WOLFSONThat's right.

  • 10:24:30

    REHM...many, many younger people.

  • 10:24:32

    WOLFSONRight. And the reason that we've seen these tremendous shifts in opinion and embrace of the Freedom to Marry across the spectrum, with people changing their hearts and minds and thinking it through, is because we've been in a rich conversation in this country, a very difficult one, for now decades, in which people have thought anew about who gay people are and why marriage matters and their own values of fairness.

  • 10:24:57

    WOLFSONAnd the vast majority of Americans now have moved to open their hearts and embrace these couples because they've also had the lived experience of nine states, plus the District of Columbia, and 14 countries and four continents where gay people share in the freedom to marry, and they can see families are helped and no one's hurt. And all the fears that people like Prof. Destro and others conjure up have turned out not to be true.

  • 10:25:21

    REHMJeffrey...

  • 10:25:21

    WOLFSONIn the same way that they weren't true when we ended interracial marriage restrictions and ended the subordination of women in marriage, and other changes that we've made on this battleground that marriage has sometimes been.

  • 10:25:33

    REHMJeffrey, do you see a relationship, a correlation between interracial and same-sex marriage?

  • 10:25:42

    ROSENThere is, arguably, a relationship. The Supreme Court, in striking down bans on interracial marriage, said although they were formally neutral, blacks couldn't marry whites and whites couldn't marry blacks, they were based on a presumption of African-American inferiority. And the question here is whether bans on same-sex marriage are also based on a notion of gendered inferiority. That's what makes it a little trickier because you almost have to argue that it's based on a paternalistic vision of women and the idea that men should act like men and not women, to argue that it's a form of sex discrimination, which you see it's a slightly trickier argument.

  • 10:26:16

    ROSENBut the basic analogy does hold, and the time in question is important. The Supreme Court waited 13 years between striking down school segregation in Brown v. Board of Education, and striking down bans on interracial marriage. And they did that for prudential reasons. Justices like Felix Frankfurter thought the country is not ready yet. There'll be a backlash that'll harm the court's legitimacy and its ability to enforce its desegregation mandates. Lots of people thought that was an outrage. Why should black and white people who loved each other be denied that right just because the Supreme Court thought the country wasn't ready?

  • 10:26:47

    ROSENWell, now, in light of these polls suggesting this remarkable and rapid shift in public opinion, the fear that the country isn't ready and there might be a backlash will be less. And that doesn't mean that there'll be a direct influence in public opinions. The justices don't literally read the polls. But they'll surely be moved by the briefs filed by leading Republicans like Clint Eastwood and Liz Cheney, all of whom said, we've changed our minds. We used to be against gay marriage on constitutional grounds, now we've come to accept it.

  • 10:27:12

    ROSENFortune 500 companies like Apple, Google and Facebook all saying, we can't compete in the global marketplace unless we can hire gays and lesbians and give them spousal benefits. They'll go to Canada or go elsewhere. That kind of brief is likely to influence the court in the same way that a brief filed by military people saying affirmative action was important influenced the court to uphold affirmative action in 2003.

  • 10:27:34

    REHMBob Destro.

  • 10:27:35

    DESTROWell, let's go back to the anti-miscegenation laws. I mean, those were really about children. Those were about, you know, the eugenic laws. If you look at when Virginia passed its anti-miscegenation laws, those were about legitimizing interracial children. And they really weren't about -- they didn't -- the states really didn't care that much about sexual relationships between blacks and whites. They just didn't want legitimated children. And so when you say, is there -- there is an analogy to be sure between the two cases, but it's not a perfect one by any stretch of the imagination.

  • 10:28:14

    DESTROAnd it comes back to this question about the differences between men and women, and the question about whether or not it's rational, and it certainly is perfectly rational, to draw a distinction between couples, you know, heterosexual couples and same-sex couples. Now, the question in California, I mean -- and I have to disagree with Evan here, that the, you know, DOMA says nothing about gay couples. It says marriage is a relationship between a man and a woman.

  • 10:28:41

    DESTRONow there's a case pending out in Utah right now based on exactly the same reasoning that the same-sex marriage cases are based on where they want this -- the federal court want to reconsider the definition of marriage and say, why can't you have a relationship between more than one? So they're reopening the whole question of polygamy. If marriage is simply a relationship between consenting adults, then there is absolutely no reason why you can't have a broader -- even broader definition. And this is really, in many respects, about our understanding of the relevance of sex.

  • 10:29:22

    REHMBut aren't you really suggesting at the judges by virtue of overturning DOMA would then open the way to legalizing polygamy?

  • 10:29:37

    DESTROAbsolutely. Because there's two ways in which that could happen. First, if you say that it's only a relationship between consenting adults and you go to the sexual privacy cases, then it really is none of the state's business. That's why I came back to that point. If marriage were only about adults, you wouldn't need to register marriages in the first place. It really is none of the state's business...

  • 10:30:01

    REHMEvan.

  • 10:30:02

    DESTRO...when kids get involved to this. But then the other piece is if you take the federal government out of the definition of marriage business, then that really does return to the polygamy cases.

  • 10:30:12

    WOLFSONWell, you know whenever someone brings up polygamy or all these other things, it means they don't have a good answer to the question that these cases are about, which is what reason does the government have for excluding gay couples from the freedom to marry, or treating gay couples who are illegally married different from all other married couples? It's always the change of subject that tells you they've lost the argument.

  • 10:30:34

    WOLFSONGay people are not saying, let's have no rules. Gay people are not saying, let anything happen. What gay people are saying is, let us have what you have, just as you have the freedom to marry the person you love, the person you're building a life with, the person you're taking on a commitment to care for, that you're accepting legal responsibilities and consequences for, just as you have the ability to build a family and raise your kids in a structure of stability and support and hope. We should have that too.

  • 10:31:04

    WOLFSONAnd our Constitution says unless the government has a good reason for denying that to people, it shouldn't be able to do that. That's what America is about.

  • 10:31:13

    REHMJeffrey, you talked about timing, and I'm wondering whether considering the remarks of Ruth Bader Ginsburg regarding Roe v. Wade, saying that perhaps that came too early before the country was really ready for it, do you think that she may apply that same kind of thinking to gay marriage?

  • 10:31:46

    ROSENIt's such an interesting question. And Justice Ginsburg did, before she joined the bench, suggest that the court ruled too broadly in Roe. And if it had merely struck down the extreme Texas law at issue in that case, but not created a sweeping right to choose for the whole nation, then it wouldn't have stalled the political momentum in favor of liberalizing abortion laws. Before -- a year ago, I would have said the answer to that question was yes.

  • 10:32:08

    ROSENGiven the fact that the polls were nearer 50-50 than 60-40, someone like Justice Ginsburg would wanna be incrementalist, rule narrowly, merely saying California can't take the right away, having granted it, but not create a right for the whole country. But now the poles are moving so quickly. And Justice Kennedy, who in particular is so conscious of his legacy, has always ruled very broadly in favor of gay rights and would not wanna be seen as someone who denied an opportunity to create the Brown v. Board of Education of marriage equality.

  • 10:32:39

    ROSENIt's quite -- I mean, I'm not predicting, but I could well see Justice Kennedy, joined by the liberals, thinking that, you know what, this is the time. This is not the time to wait. The poles are shifting. The country is ready. There won't be a backlash. And whether Chief Justice Roberts might join that is a particularly fascinating question.

  • 10:32:56

    REHMJeffrey Rosen, he is professor at George Washington University School of Law. And you're listening to "The Diane Rehm Show." We have many callers. Let's open the phones, 800-433-8850. Send your email to drshow@wamu.org. Let's go to Cincinnati, Ohio. Good morning, Charlotte. You're on the air.

  • 10:33:31

    CHARLOTTEGood morning. How are you this morning?

  • 10:33:34

    REHMI'm fine. Thanks. Go right ahead, please.

  • 10:33:37

    CHARLOTTEOK. As far as gay marriage is, I don't think that it should be illegal for the simple fact is you're going in front of the most high with this, not in front of just the people of the world, but in front of the creator who created us, and in our religion, it says it is abomination. But as far as man law is concerned, then you will have commonwealth marriage where if they're together six months or longer, they're considered married, and they should be able to file taxes, do the licensed insurance policies.

  • 10:34:08

    CHARLOTTEBut as far as in front of the world to say, I do, in front of the ministers, no, you don't have that right because you're going against the creator and what he say, and that's a whole different law.

  • 10:34:20

    REHMAll right. Do you want to respond to that, Bob Destro?

  • 10:34:25

    DESTROWell, there's one thing we need to understand about marriage, is that marriage in every society is a combination of what we call status and contract. And in California, the law provides that gay couples have exactly the same rights as heterosexual couples do. So you do have marriage -- formal marriage equality. You don't have the title, you know? But as the caller points out that there are strong views, strong religious views, strong moral views on both sides of this question, and that's why we leave, in the United States, these questions to be decided by the democratic process.

  • 10:35:04

    REHMEvan.

  • 10:35:05

    WOLFSONWell, that's exactly the opposite of what's true. In fact, that's exactly why we don't leave it to the democratic process. We don't want people voting on which religious view shouldn't be imposed on everyone else. What we have in the United States is a separation of church and state, and that's respected in marriage as well. Religions are entitled to decide for themselves who they will marry, and the caller is entitled to her religious views. But what she's not entitled to do is to use the government as a weapon to impose them on everyone else.

  • 10:35:32

    REHMJeffrey.

  • 10:35:32

    WOLFSONHer church should be able to decide who they wanna marry, but it should not be able to tell the government, don't give a marriage license to people who have different religious views.

  • 10:35:41

    ROSENI thought it was a very useful and illuminating comment because that's the reason that many people oppose gay marriage equality, and the Supreme Court has said that is not a constitutionally valid reason. The caller is absolutely entitled in good faith to hold those views. But the Supreme Court has said that moral disapproval, based on the idea that a certain group is inferior to other people, can't even pass the lowest level of constitutional scrutiny.

  • 10:36:05

    ROSENAnd that's why the supporters of Prop. 8 are tying themselves in knots to come up with different reasons than the one the caller gave, not the real reason, but different reasons, because the Supreme Court has ruled that reason out of bounds.

  • 10:36:16

    REHMBob.

  • 10:36:16

    WOLFSONBut that is the real reason. Let's just be clear.

  • 10:36:17

    REHMExcuse me.

  • 10:36:19

    WOLFSONLet's just be clear. That is the real reason that Prop. 8 was passed, and it is a constitutionally intolerable reason because it not only threatens personal freedom of all Americans, it actually threatens religious freedom. I don't think the caller would want the government dictating to her church who they must marry, and likewise any church should not be dictating to the government who gets the legal marriage licenses.

  • 10:36:41

    REHMBob.

  • 10:36:42

    DESTROWell, let's, again, let's go back to history. Moral disapproval of slavery is why we had the 13th, 14th and 15th Amendment. So this idea that somehow moral disapproval is outside the pale is a complete perversion of the First Amendment. People who have strong religious views have exactly the same voting rights that Evan has, and people are entitled to vote based on their own views.

  • 10:37:07

    DESTROAnd the court -- and the trouble that I have with the 9th Circuit's opinion and the trouble with the 2nd Circuit's opinion is that they have defined any kind of opposition, whether it's based on rational basis, the idea that there is a distinction between men and women that needs to be preserved in the law, that's not hateful.

  • 10:37:26

    REHMBob Destro, professor of law at The Catholic University of America. Short break here. When we come back, more of your calls, your email. I look forward to speaking with you.

  • 10:40:04

    REHMAnd welcome back as we talk about Prop 8 in California and the Defense of Marriage Act, both of which will be debated this week before the Supreme Court. We have with us: Robert Destro, professor of law at the Catholic University of Maryland -- sorry -- the Catholic University of America, Jeffrey Rosen, he's professor at George Washington University School of Law. He's author of several books on the Supreme Court and co-editor "Constitution 3.0." Evan Wolfson is founder and president of Freedom to Marry. Let's go to Beaverton, Mich. Good morning, Judy. You're on the air.

  • 10:41:01

    JUDYHi, Diane. Thanks for taking my call.

  • 10:41:03

    REHMCertainly.

  • 10:41:04

    JUDYI consider myself a Christian. But by the same token, I live in the United States of America and we have civil rights, and I think that everyone is entitled to the civil rights of union. That doesn't mean that it has to be in a church. It can be at the courthouse. I don't think that the government has any right to tell a church that they can or cannot marry someone in that church. That's up to the congregation. But when it comes to civil rights, that's up to the nation -- not a religious authority.

  • 10:41:36

    REHMIt's an important point how would either of these cases affect what churches can and cannot do. Evan.

  • 10:41:47

    WOLFSONIt won't affect them at all. Under the First Amendment, churches have the absolute right to decide for themselves, as the caller just said. Look, we don't want the government calling over to a cathedral and telling the bishop or the priest that they have to marry a divorced Catholic couple. But at the same time, we don't want the bishop or the priest calling over to the government's marriage license and saying don't give a license to that divorced Catholic couple.

  • 10:42:11

    WOLFSONThere's a difference between church and state. There's a difference between religious marriage and legal marriage. And what we're talking about here today and what the U.S. Supreme Court is ruling on is the freedom to marry under the law, a freedom that has been recognized by the Supreme Court 14 times.

  • 10:42:29

    REHMBob Destro.

  • 10:42:31

    DESTROWell, Evan hasn't been paying attention to the cases because the -- it's not just about the freedom to marry. It's a question, as the ninth circuit put it, about withholding the approval. And certainly in Canada, in British Columbia, a church and the Knights of Columbus were sued because they wouldn't rent the hall for a same-sex marriage reception.

  • 10:42:55

    DESTROThere have been people sued under the civil rights laws across the country because, remember what we're talking about here is you may not -- you may have the, you know, if you have the freedom of marriage -- to marry the withholding of your approval is what the violation of the civil rights is. And so if you talk about -- if you listened this last summer over the contraceptive mandate, it was called a war on women when the churches were opposed.

  • 10:43:21

    DESTROAnd so you're gonna have all these downstream, First Amendment cases now where the churches are gonna say but we're not gonna recognize a relationship, and then they're gonna have to. And so there's a lot of cases out there involving people losing their tax exemption, people who have been forced under the civil rights laws in New Mexico. A photographer in Albuquerque was prosecuted because they refused to take pictures at a gay commitment ceremony. So there are civil rights issue out there on the other side because we're talking about the symbolism here.

  • 10:43:59

    REHMJeffrey.

  • 10:44:00

    ROSENIt is true, as Bob says, that once you hold that religious disapproval is a form of constitutionally impermissible anti-gay animus, that does create tricky problems in employment law and in other forms of law about when it's appropriate to grant exemptions from generally applicable laws. Evan is right that no one is claiming right now that the Catholic Church has to marry gays and lesbians if the Supreme Court recognizes the right to gay marriage. But legally, it will be harder and harder for religious denominations to withhold it.

  • 10:44:29

    REHMEvan.

  • 10:44:30

    WOLFSONNo. Look, what Professor Destro just did was deliberately and willfully mix apples and oranges because that's all the opposition has left, trying to scare people that terrible things are gonna happen.

  • 10:44:40

    REHMHow is he mixing?

  • 10:44:41

    WOLFSONHere's the difference. Here's the difference: everyone is very clear -- and I'm sure Professor Rosen would agree with me on this -- that under the First Amendment, churches and true religious entities will never be told whom they must marry in the same way that churches are not told today they have to marry Jewish couples and synagogues are not told they have to marry Mormon couples.

  • 10:45:02

    WOLFSONThey get to decide for themselves questions of religious doctrine and religious. But it is also true that wholly apart from gay people and wholly apart from marriage, we have non-discrimination laws in this country that relate to businesses and others that hold themselves open to the public, not religious entities, those who were in the public sphere and wholly apart from marriage or gay people.

  • 10:45:27

    WOLFSONWe have decades and decades of experience balancing true religious sphere of entitlement versus those who enter the public sphere. When people enter and set up a business, run a photography studio or rent a hall and hold themselves out as open to the public, they're entering the commercial sphere. The civil rights laws of our country say you can't then exclude African-Americans. You can't exclude Jews. You can't exclude, in many cases, gay people. That's not because of marriage. That's because of non-discrimination law.

  • 10:46:01

    REHMAll right. To Rehoboth Beach, Del. Keith, you're on the air.

  • 10:46:07

    KEITHThank you for taking my call. I'm calling about the implication for DOMA on benefits, restrictions, in particular. My spouse and I had a civil union here in Delaware last year prior to his retirement, and he is -- we're -- we had a civil union. In Delaware, civil unions are considered legal marriage. So we are in a unique position, I think, because I'm a retired federal employee. However, I cannot provide any benefits to my spouse simply because I am a federal employee and DOMA prevents that.

  • 10:46:51

    KEITHHe, on the other hand, work for DuPont company and can provide me most benefits but not all. And what -- one particular benefit that they won't provide is the survivor payment to the spouse of -- a gay spouse of a retiree. If something happens to him, I cannot -- he cannot put me on it and they will not pay me the benefit that they pay married couples under the old retirement system that was in place when he worked there. And now he's retired primarily under that system.

  • 10:47:31

    REHMSo how could these Supreme Court decisions affect that?

  • 10:47:37

    ROSENWell, this is a very important question because it gives the nub of the discrimination at the heart of DOMA. What possible rational reason could there be for treating you federal retirement benefits differently from your spouse's benefits at DuPont?

  • 10:47:51

    ROSENIt's hard to think of a reason why you shouldn't be able to treat your spouses equal for federal purposes but the private sector can. And that's what lower courts held, that all the reason that could justify this discrimination, responsible appropriation and so forth, were, you know, irrational. It doesn't -- there's no state interest that's furthered by denying your spouse equal access to your federal benefits. And there's a lot of money at stake here, tax benefits and other purposes.

  • 10:48:14

    REHMOf course.

  • 10:48:15

    ROSENThis is the heart of the DOMA case. And if the Supreme Court strikes down Section 3 of DOMA, then the discrimination that you are experiencing will end.

  • 10:48:23

    REHMBob Destro.

  • 10:48:24

    DESTROWell, there's -- let's talk about DuPont first. I mean, DuPont can change it overnight if it wanted to. That's a question of contract. And as a matter of fact, in San Francisco, back when San Francisco first became the first city, really, to offer these kinds of benefits, they cut a deal, basically with Catholic charities and the Catholic Church saying, you could designate whoever you want as your survivor.

  • 10:48:49

    DESTROI mean, that's all that's -- it's all a matter of contract. And so there is ways to accommodate all this without, you know, breaking down, without throwing out DOMA.

  • 10:48:58

    REHMEvan.

  • 10:48:59

    DESTROYou know, but -- let me just make a last point...

  • 10:49:00

    REHMOK. I'm sorry.

  • 10:49:01

    DESTRO...which is if public opinion is exactly what they say it is, you know, then that's gonna happen. And that's not a constitutional question. And the court should wait for it to happen in due time, coming back to your Justice Ginsburg question.

  • 10:49:14

    REHMEvan.

  • 10:49:15

    WOLFSONLook, this is exactly why hundreds of America's leading businesses, from Apple to Zynga, as Professor Rosen said, have filed briefs with the Supreme Court saying, you've got to strike down this patchwork of discrimination and you've got to allow us to treat our employees equally and fairly, and the government should be on the side of doing that as well.

  • 10:49:35

    WOLFSONAnd Professor Destro is wrong when he says all of this can somehow be worked out because, right now, the government is the number one discriminator against people in this country, against employees. You military officials saying, we wanna treat all our service personnel equally under the law. We want to assign them to residential housing. We want to provide them the respect when their spouse is injured or killed. But because of the so-called Defense of Marriage Act, we, the military, the nation's largest employer, can't do that because of this gay exception in the marriage law.

  • 10:50:08

    REHMTo Fort Smith, Ark. Good morning, Trent.

  • 10:50:12

    TRENTGood morning. How are you doing?

  • 10:50:14

    REHMFine. Thanks.

  • 10:50:15

    TRENTI just want to touch briefly on this religious portion of this. I mean, it just seems like such an archaic argument. I mean, the Constitution calls for equal rights that says all men are created equal. I mean, to me, that's cut and dry. I mean, you get into that as -- the biggest problem is the religious aspects of this. And, you know, I, myself consider myself to be, you know, enlightened as far as I don't choose to organize myself with any particular religion. And, you know, I choose to believe the way I that I choose to believe.

  • 10:50:48

    TRENTAnd when, you know, I've been with my partner for eight years. We're not entitled to anything. We elected not to run off to states that do allow same-sex marriages. I just think that it doesn't do any good. It's just a piece of paper right now. And when we look at the aspect of the federal benefit, that's what we're more interested in. And I should care less as far as where I have to go to get legally married, to get my legal benefits that are afforded to me under the Constitution.

  • 10:51:19

    TRENTThat that's kinda what I wanted to touch on. I mean, it just seems like, you know, the population as a whole, they don't need to be choosing who can and cannot get married.

  • 10:51:33

    REHMAll right, sir. Thanks for calling. Bob Destro.

  • 10:51:37

    DESTROWell, let's clear up one fallacy. DOMA does not stop any companies from doing anything. They can do whatever they want. And so -- I mean, that's -- it's a fallacy that DOMA stops anybody from doing anything.

  • 10:51:51

    REHMNo. But I think he was talking about the religious elements and the issue of how religious elements have become so involved in this, what he sees as constitutional issue of equal rights.

  • 10:52:12

    DESTRORight. You know, that -- I'm sorry I didn't address that immediately. That really was the question. The religious question is not so much about same-sex sex. I mean, that's not really the issue. The question here is really, you know, is there a, you know, if you put it in strictly religious terms -- and I'm gonna do that -- that, you know, that God created men and women, I mean, is there a distinction between the two?

  • 10:52:41

    DESTROScience is showing us today that there are very rationale reasons to have distinctions between men and women, and the Supreme Court had recognized that there are differences, and Justice Ginsburg herself has written that they need to be preserved, that those differences need to be preserved. And so when we're looking down the road at the effect on children, the whole idea of the natural order of things is a lot of what these religious objections are about.

  • 10:53:08

    REHMRobert Destro of The Catholic University, and you're listening to "The Diane Rehm Show." Jeffrey Rosen.

  • 10:53:18

    ROSENIt's not true that it's not about sex because when the Supreme Court consider the constitutionality of sodomy laws in 2003, they were defended on religious grounds. Religious organizations came and said, our religions compel us to disapprove of this sort of conduct. And the Supreme Court said that form of disapproval is constitutionally illegitimate. Now, Justice Scalia went crazy on that decision, where he was very exorcised, let's just say.

  • 10:53:41

    ROSENHe said the court is mistaken a Kulturkampf for a fit of spite, a culture war for a fit of spite, and he said this means the end of morals legislation. Just like Professor Destro, he was appalled at the idea that laws had traditionally been based on notions of religious morality, and he predicted that laws from those banning prostitutions and other morals offenses would now be illegitimate.

  • 10:54:01

    ROSENBut a majority of the court disagreed with Justice Scalia and Professor Destro, and that's why it is true that that moral disapproval is now not considered constitutionally acceptable.

  • 10:54:09

    REHMIt's interesting. Della (sp?) in Lincoln, Mass., has written, "Shouldn't a justice recuse him or herself from cases involving gay marriage if those religious beliefs are clearly against such marriages? Would we ever have a situation like that?

  • 10:54:32

    ROSENYou know, I don't think so. I mean, in fact, Professor Laurence Tribe once opposed restrictions on abortion on religious expression grounds. He said now law should be based on religion. And to the degree that this is based on religious disapproval, that shouldn't be acceptable. He changes his mind. He thought about it and said, so many laws are based on some religious notions, it wouldn't make sense to go rule that out of bounds.

  • 10:54:50

    ROSENAnd also not appropriate to please the religious backgrounds, in particular justices, any more, I think, than it will be appropriate. There were calls on the judge in the Prop 8 case to recuse himself because he is gay, and that -- those calls were inappropriate as well. So I don't think you wanna create recusal standards that would be so personally based.

  • 10:55:07

    REHMWill the court feel as though it is of the time or feel as though it must wait and, therefore, behind -- be behind the times?

  • 10:55:23

    DESTROWell, the question of whether your -- of -- ahead of the times or behind the time if you go back...

  • 10:55:29

    REHMOr of the time.

  • 10:55:30

    DESTROOr off the times. I mean, the Supreme Court has always tried to read the election returns. There is absolutely no doubt about it. And in Casey, Justice O'Connor wrote about how they want it to be in tune with the thoughtful part of the nation. And so if you look at the -- at Brown, they finally decided that the thoughtful part of the nation had caught up with little Louise Brown's rights, but they never really let her graduate from a desegregated school.

  • 10:55:58

    REHMSo what is your prediction, Bob Destro, very quickly so I can get the other...

  • 10:56:02

    DESTROMy prediction is that they're gonna duck it on standing grounds.

  • 10:56:05

    REHMPardon me.

  • 10:56:06

    DESTROMy prediction is that they will duck it on standing grounds.

  • 10:56:10

    REHMAnd, Jeffrey.

  • 10:56:12

    ROSENYou ask the Goldilocks' question and I think the safe bet is of the times, not too far ahead, certainly not too far behind. I cannot imagine a significant defeat for gay marriage, but you could be of the times, by, as Bob suggest, willing narrowly, dismissing on standing grounds, which would have the effect of affirming of the California courts ruling. On the other hand, dismissing on standing grounds would mean affirming the constitutionality of DOMA. And I don't think that that is gonna happen.

  • 10:56:35

    ROSENI was so struck by -- the brief George Will noted it, saying this is an offense against federalism to impose this federal definition of marriage that creates inequality, invalidly solemnized marriages in Massachusetts. That's why I think that the gay equality side is gonna win narrowly on both cases.

  • 10:56:51

    REHMEvan.

  • 10:56:52

    WOLFSONWhen the Supreme Court struck down race restrictions on who could marry whom back in 1967 in Loving, 70 percent of the American people opposed interracial marriage. And what happened after that ruling was people accepted it and we're all a lot better off. The justices need to look to the right side of history and do the right thing, which is where the American people happily already are.

  • 10:57:14

    REHMEvan Wolfson, Jeffrey Rosen, Robert Destro, thank you for a wonderful explanation of what we'll be thinking about and hearing in the next few days. Thanks for listening, all. I'm Diane Rehm.

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