The Supreme Court's Decisions On Same-Sex Marriage

MS. DIANE REHM

11:06:55
Thanks for joining us. I'm Diane Rehm. The U.S. Supreme Court today ruled a key provision of the Defense of Marriage Act is unconstitutional. In the other major same-sex marriage case the court said it lacked jurisdiction to rule on California's gay marriage ban.

MS. DIANE REHM

11:07:17
This clears the way for same-sex unions in that state. We talk about what the rulings mean for the nation. Joining me in the studio author and journalist, Stuart Taylor, by phone Jeffrey Rosen of the National Constitutional Center and Camilla Taylor of Lambda Legal.

MS. DIANE REHM

11:07:39
From a studio here in Washington, Ron Elving of NPR. I hope you'll join the conversation, give us a call, 800-433-8850. Send us your email to drshow@wamu.org, follow us on facebook or send us a tweet. Good morning to you all.

MR. JEFFREY ROSEN

11:08:04
Good morning.

MR. STUART TAYLOR

11:08:04
Good morning, Diane.

REHM

11:08:06
And Jeffrey Rosen, today I want to start with you. Let's start with the Defense of Marriage Act called DOMA, what did the court decide?

ROSEN

11:08:19
The court decided in a historic and important opinion that the Defense of Marriage Act is unconstitutional, as a deprivation of what Justice Kennedy called the equal liberty of persons that's protected by the 5th Amendment. Justice Kennedy was especially struck that Congress was interfering with over 1,000 federal statures and a whole realm of federal regulations that disrupted the states traditional ability to define marriage.

ROSEN

11:08:50
And there's a combination of concerns both with equality which is one of Justice Kennedy's central concerns and also with states' rights and federalism. The people challenging DOMA appealed to Justice Kennedy's sense of limited government and he very much embraced that argument by saying the combination of the assault on states' rights and on the dignity of gays and lesbians rendered DOMA unconstitutional and in this he was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan.

ROSEN

11:09:20
There was a very strong dissent from Chief Justice Roberts who first of all, said the court should not have had jurisdiction to hear the case to begin with as it decided in the California case. But if it had jurisdiction then Chief Justice Roberts would have upheld DOMA under the constitution.

REHM

11:09:38
Stuart Taylor.

TAYLOR

11:09:40
That was an excellent summary and I think a couple of things worth remarking on in addition, this was a traditional liberal-conservative breakdown in terms of the five-four with Justice Kennedy playing his usual role of deciding whether the liberals win or the conservatives win.

TAYLOR

11:09:56
It's interesting that in yesterday's huge decision, striking down the Voting Rights Act Section 4, a key provision, Justice Kennedy tipped the balance to the conservative side and the liberals were accusing him and the majority of judicial activism. You are disrespecting the democratic enactment of Congress.

TAYLOR

11:10:17
This time the roles are reversed. Justice Kennedy tipped the balance for the liberal side in a decision that I kind of liked, by the way, and this time it's the conservatives who are accusing the liberals of judicial activism, of disregarding a solemn act of Congress based on airy constitutional theories that are pretty new in American history.

REHM

11:10:44
Camilla Taylor, how big a win is this ruling for gay rights?

MS. CAMILLA TAYLOR

11:10:52
Well, it's a thrilling win and I agree with the statements that were made already, that characterize it, and a couple of things that I would add is that Justice Kennedy showed great concern for the way that DOMA demeans the lives of lesbian and gay people and condemned the treatment of them, as in second-class marriages, which I think telegraphs what we may see in the future from this court, with respect to the substantive issue of the freedom to marry for same-sex couples, with respect to whether states may ban them from marrying. That was not reached of course in this DOMA decision, which simply concerns whether the federal government may deny federal respect to valid marriages of same-sex couples.

MS. CAMILLA TAYLOR

11:11:31
But there was such strong language about personhood and dignity and the way in which this law treated people so badly and specifically with respect to children, Justice Kennedy writes that the law humiliated tens of thousands of children now being raised by same-sex couples and made it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. So I think that's a very strong signal of how this majority will feel should it reach the substantive questions on another day with respect to the freedom to marry for same-sex couples.

REHM

11:12:09
Ron Elving, what about California's Proposition 8?

MR. RON ELVING

11:12:16
This is a bit trickier, it's not quite as direct as the decision that they made with respect to DOMA. It's a jurisdictional decision. Justice, Chief Justice Roberts wrote for the majority and was joined by a couple of conservatives and also by a couple of the liberals and he got a five to four majority together, sort of the back door way to rule that in this particular case the case should not have been before the Supreme Court really at all.

MR. RON ELVING

11:12:45
And that they should have left it up to, not just the 9th Circuit Court but that the 9th Circuit Court out in California should not have taken the case either and they should have left things stand with the original trial court, the district court, by Judge Walker who ruled that Proposition 8 could not stand.

MR. RON ELVING

11:13:03
Proposition 8 being, of course, being the ban adopted by the voters back out there in California several years ago and a rather sweeping opinion that Judge Walker wrote a few years ago should have been allowed to stand by the 9th circuit because the proper people, that is the state officials of California, did not step forward to defend the voter passed initiative that had banned gay marriage.

MR. RON ELVING

11:13:24
That's a little more complicated than what we saw in DOMA but it appears that the effect, at least for the moment, would be for California. It would mean that Judge Walker's order that invalidated Proposition 8 would stand.

REHM

11:13:35
Stuart.

TAYLOR

11:13:36
That's correct, it's not entirely what happens when the case goes back to California. There's a lot of dispute over whether, you know, that Judge Walker's decision stands and Proposition 8 is gone or whether Judge Walker too lacked jurisdiction.

TAYLOR

11:13:52
But I think an important overarching theme of these decisions, they would have been unimaginable 20 years ago. The role of public opinion which has changed faster in support of gay marriage in recent years than on any other issue I can think of has been absolutely critical in bringing the court to this decision and its critical in a lot of cases but I've never seen it more dramatically illustrated than in this. The public supports gay marriage, DOMA would not pass today in Congress and you're seeing the outcome.

REHM

11:14:26
Camilla, what about Prop 8 in California, what do you think happens next?

TAYLOR

11:14:35
Well, it's clear that Californians will be able to marry again without regard to sex or sexual orientation. That these couples who have been prevented from affirming their commitment to each other and from having the dignity and status of marriage to quote the Windsor opinion, "We'll once again be able to marry."

TAYLOR

11:14:53
And so it's really a great day for the couples in California who were prevented from doing so by Proposition 8 and I think that what Stuart Taylor was referring to with respect to some questions about the scope of Judge Walker's decision, I think those will be resolved very quickly and I'm convinced that Californians will be marrying very soon.

REHM

11:15:14
Jeffrey Rosen, what happens to other states around the country, will they all now have to permit same-sex marriage?

ROSEN

11:15:28
They will not, this is a minimalist decision that does nothing to resolve the national status of same-sex marriage one way or the other. States will be continue, to free to recognize gay marriage by popular initiative or court decisions as states are increasingly able to do. The states that ban gay marriage will be able to continue to do it.

ROSEN

11:15:48
Nevertheless, there are a couple of things to say. There is language in the DOMA decision about the danger of demeaning the equal dignity of same-sex couples that litigants will certainly site in their efforts to once again argue the bans on same-sex marriage are impermissible and perhaps, as Stuart said, if the court is reflecting the way that public opinion is moving, the court will hear one of those cases in a few years and might be willing to nationalize gay marriage down the road.

ROSEN

11:16:17
But we do have some window onto the thinking of the justices here. In DOMA Chief Justice Roberts and the conservative dissenters with the exception of Kennedy made clear that they were not by any means willing to recognize some sort of national right to the equal dignity of gays and lesbians.

ROSEN

11:16:31
But then we have this remarkable alignment in the Perry case. So Chief Justice Roberts delivers the opinion of the court in which Scalia, Ginsburg, Breyer and Kagan join. What an incredible assortment of justices who are, Roberts and Scalia devoted to judicial minimalism and don't like broad, holding the jurisdiction while the liberals like the result which is that gay marriage in California stands.

ROSEN

11:16:54
The dissenting opinion written by Kennedy who loves to find jurisdiction in all cases, he's joined by Thomas, Alito and Sotomayor. She would have, uniquely among the liberals, found jurisdiction and on the merits recognized the right to gay marriage.

ROSEN

11:17:07
So in that bit of tea leaf reading, we get a sense of which liberal justices are willing to move quickly, which are more restrained and Chief Justice Roberts very much in this opinion making the court his own and avoiding a broad ruling because he thought the court's institutional legitimacy required it.

REHM

11:17:24
Stuart Taylor.

TAYLOR

11:17:26
That is an unexpected breakdown. I doubt that it will prove to be a very significant breakdown in the future because there are going to be more cases attacking state laws that deny equality to gay marriage. They will come to the court eventually and then the court will have to come to grips with this on the merits because they won't all be, have jurisdictional problems like this.

TAYLOR

11:17:49
And I think the DOMA decision today goes a considerable distance toward giving us a basis to forecast to the court will eventually decree a right to gay marriage. Justice Roberts -- Chief Justice Roberts in his dissent tried to avoid that inference by saying now that what we've done -- what you guys have done today doesn't mean there's going to be a right to gay marriage and he emphasizes the parts of the Kennedy majority opinion that rests on federalism and that shoe will be in the other foot in a gay marriage case.

REHM

11:18:22
Stuart Taylor, author and journalist. We'll take a short break here. When we come back we'll read your emails, take your phone calls. I look forward to speaking with you.

REHM

11:20:04
And we have a tweet from Gavin Newsome. The Lieutenant Governor of California and former mayor of San Francisco tweeted, "Love rules the day." I like that one. And here's a Tweet from Josh, "Antonin Scalia's gay marriage dissent is vicious, dripping with sarcasm and contempt for the majority." Camilla, is that how you read it?

TAYLOR

11:20:40
Well, I think we never anticipated that Justice Scalia was going to be a huge advocate for the freedom to marry, given his dissents in Lawrence. And so it's not very surprising. What I think is remarkable about this opinion apart from anything else is the way the majority opinions states that the federal law known as DOMA was infected by an improper purpose, an illegitimate purpose of discrimination. And it disposed of the purpose that was cited by the congress in DOMA, which is also used to justify all sorts of state marriage bans.

TAYLOR

11:21:17
So I think that's going to be a significant point about this ruling. Even though it technically affects only the federal law known as DOMA, it signifies and it will be used frequently I am sure to describe why it is that state marriage bans are similarly illegitimate and unconstitutional.

REHM

11:21:35
And you only have 12 states plus the District of Columbia that allow same-sex couples to marry. So, Camilla, I would think you're going to be a very busy woman.

TAYLOR

11:21:52
Yes. There are other lawsuits in the courts and of course we expect other legislatures in states to take action very soon (unintelligible) ...

REHM

11:21:57
All right. And to you, Jeffrey Rosen. Here's an email from Jordan in Arbor, N.H. He says, "If I were to marry another man in Massachusetts and then move to Texas, which of these three options would be the case? A. Texas would need to recognize my marriage, B. Texas would not recognize it but federally I am married or C. Texas would not recognize it and I'm only federally married if I'm personally located in certain federal districts? Jeffrey.

ROSEN

11:22:49
Wow. Diane, I have been on this show for a long time. I've never had such a good multiple choice question. (unintelligible) ...

REHM

11:22:55
I thought you'd like that one.

ROSEN

11:22:57
That's a tough one, too. I had to really concentrate. I think, gosh, I hope I don't get this one wrong on the air. But it sounded like B is the answer. To me, you are validly married in Massachusetts. For federal purposes you are validly married and you can get all federal benefits. But under the full faith and credit clause, Texas does not have to recognize your marriage for state purposes. But I will quickly defer to the state law people to see if I've gotten that last (unintelligible).

REHM

11:23:28
Camilla wants to respond.

TAYLOR

11:23:32
Well, there are a variety of choice of law principles historically that various federal agencies have used to determine whether someone is validly married. So for immigration purposes and a few others, the federal government will look to the place of celebration. And if you were married in Massachusetts you are married for the purpose of being able to sponsor your spouse for citizenship, for example, no matter where you live.

TAYLOR

11:23:54
There are other federal agencies that have looked to your place of residence quite often simply by a matter of practice or by case law, but not as a matter of statute or anything like that. And then there are a very few places where there may need to be some consideration taken by the administration to whether the administration will be willing to enforce provisions that would defer to discriminatory state laws that prevent people from marrying.

TAYLOR

11:24:22
So all this to say that there could be some federal guidance and some federal action taken very soon that will make it clear, that the place of celebration is the place that determines whether a marriage is valid for federal purposes no matter where people live in the country.

REHM

11:24:37
Stuart.

TAYLOR

11:24:38
I wouldn't be surprised to see President Obama take a position or have to take a position on this. He's the one who runs all these federal agencies theoretically. And it would be odd for different agencies to have different decisions. And given the direction of President Obama's thinking on this issue, he thought -- he opposed gay marriage not long ago. He thought it was -- now he thinks it's so unconstitutional he won't defend it in court.

TAYLOR

11:25:03
Given the direction of his thinking, I would expect that if you have -- that the caller will have federal rights -- federal marriage rights everywhere in the country, that that's how it will sort itself out.

REHM

11:25:15
Ron Elving, do you want to weigh in?

ELVING

11:25:19
This is a question we have been trying to figure out here this morning as well because it is a question that people are going to ask, perhaps not with quite such precision as the person who sent you that email earlier. But people are going to be asking, hey wait a minute, I got married in Massachusetts, New York and California and now I live in South Dakota. What happens to me?

ELVING

11:25:37
Some states recognize marriages made elsewhere -- gay marriages but most don't. And that's going to be a problem for a lot of people and we're going to try to be able to give them an answer. And it's probably going to depend on a lot of language. And probably the easiest thing would be if the president would issue some sort of sweeping blanket statement as many gay activists have been urging him, and urging the first lady in one particular famous case, to do in recent weeks and months. Put your money where your mouth is and tell us that this is the way the federal government will slice it.

REHM

11:26:09
Stuart.

TAYLOR

11:26:10
There's another provision of the Defense of Marriage Act that wasn't challenged today that has some relevance here. That provision would say that states that do not recognize gay marriage do not have to honor gay marriages performed in the states that do. Now that's a different issue from the one on the table because the one on the table is what the federal government will do, what rights you'll have.

TAYLOR

11:26:32
But, you know, another question will be, does Texas, if you move there from Massachusetts, have to recognize your marriage for all purposes?

REHM

11:26:39
Yeah, right.

TAYLOR

11:26:40
DOMA says no, Texas doesn't have to do that. That too will be litigated in the courts.

REHM

11:26:48
Camilla, do you agree?

TAYLOR

11:26:52
Well, I think that the choice of law principles that states have used -- they've often used (word?) law principles to determine whether someone is validly married if they come from a different state and they've married elsewhere. And constitutional amendments and discriminatory statutes that preclude people from marrying have infected those decisions that states have been making.

TAYLOR

11:27:14
So I think that what we're probably going to see are a lot more efforts to get the freedom to marry in those states that are currently discriminating against same-sex couples. And those will include legislative efforts but also court action as well, which would call into question not just Section 2, but of course the fundamental right to marry and the guarantee of the equality provision of the federal constitution which was at stake at Windsor as well.

REHM

11:27:42
Ron Elving, in recent years we've certainly seen public opinion shift. How much of public opinion do you think has affected the court's ruling?

ELVING

11:27:58
That's immeasurable on one level. We will not know that in any precise kind of way. And certainly many of the things that were argued today would suggest that the judges are looking at many things besides public opinion. Many of the things we saw in the opinions and the dissent. But it's also interesting to see this split decision, if you will, between these two cases and how in some sense seems to reflect the country's ambivalence.

ELVING

11:28:22
For example, in the latest polling that's been done by the Pew Research Center, they found that 51 percent of Americans favor allowing gays and lesbians to marry legally. That's just a little over 50 percent. It's what you call a bare majority perhaps. And yet, 42 percent, a very large minority, still saying that they oppose legalizing gay marriage.

ELVING

11:28:42
I think it's not that number though so much that's affecting the thinking of the country and the thinking of legislators and the thinking of these judges, but rather the direction, the fact that we have moved so far. In 2004 President George W. Bush was largely reelected by states having constitutional amendments banning gay marriage on their ballot to attract social conservatives to the polls. That was highly effective for him. Now the energy seems to be running strongly in the other direction in many, many states, particularly the most populace ones.

REHM

11:29:11
All right. Let's open the phones. We're going first to West Plains, Mo. Good morning, CJ.

CJ

11:29:21
Good morning. I appreciate your show and your guests. My question today is, if the majority of people in a particular state have voted one way or the other for or against same-sex marriage, how can a judge or a court overturn that?

REHM

11:29:41
Stuart Taylor.

TAYLOR

11:29:43
Well, the base of the argument that is made is that equal protection of the law's principle, which applies to the states and via the Fifth Amendment precedence to the federal government. Equal protection of the laws guarantees gay couples' right to be treated just the same as traditional married couples. That's the argument and there are lots of counter arguments.

ROSEN

11:30:06
This is Jeff. It might be pointed out that the court did not squarely embrace that principle when it comes to the basic right of gay marriage itself. It did say that the federal law had to fall because it was infected by animas. And it now becomes clear that the central moment in that oral argument was when Justice Elena Kagan read from the congressional report which said that a purpose of the Defense of Marriage Act was to express moral disapproval of gays and lesbians.

ROSEN

11:30:32
That moral disapproval, the court has held, is an impermissible purpose, a bear desire to harm a politically unpopular group, the court said, can't survive even the most relaxed scrutiny. And that principle might be applied to strike down bands on gay marriage in the states but it was not here. Because the Perry case basically avoided that question on jurisdictional grounds. States are free to come up with rational reasons for continuing to ban gay marriage.

ROSEN

11:30:59
Another thing that didn't emerge from these decisions today is what is a non-bigoted reason for banning gay marriage? That's what the caller is really asking. How could judges strike down a law like this? The answer is that states have to come up with some reason that doesn't have to do with moral disapproval that could justify a ban on gay marriage.

ROSEN

11:31:18
The one reason it was offered in the oral arguments in Perry was responsible procreation. The basic idea was that it's a little tricky to encapsulate fast, but that because straight men can be really animalistic and might impregnate women and run away and not marry them. They need the prestige of marriage to tame them and make them behave well, whereas gays and lesbians already behave well. When they have kids they have to plan and think about it. So they don't need the prestigious institution of marriage and therefore marriage would be devalued by including them.

ROSEN

11:31:48
That was kind of a farfetched argument that Justice Kagan expressed some questions about. But arguments like that, once again, will be front and center while the majority of states that don't recognize same-sex marriage have to go to court and come up with a non-bigoted reason for justifying those bounds.

REHM

11:32:03
Camilla.

TAYLOR

11:32:05
Well, I'll add with respect to the responsible procreation justification that was cited in oral argument and which gets very little treatment in the majority opinion in Windsor. A majority of the justices express a lot of skepticism about that.

TAYLOR

11:32:19
And Justice Kennedy's opinion in Windsor talks again and again about how denying same-sex couples the ability to have their marriages respected by the federal government humiliates children and deprives the children of same-sex couples of tangible benefits, as well as making their lives harder and labeling their families as bad families. So I think it's very clear that the court did not consider that to be an adequate justification, and that that was illegitimate too.

REHM

11:32:47
And you're listening to "The Diane Rehm Show." Let's go back to the phones and to Hamilton, Mich. Good morning, Jerrod.

JERROD

11:33:00
Good morning, Diane.

REHM

11:33:03
Hi there. Go right ahead, sir.

JERROD

11:33:05
All right. Could I ask what your opinion on same-sex marriage is? And I have a comment. Same-sex marriages aren't normal and they're being accepted as being normal. In the beginning of time there was man and woman, not man and man, not woman and woman. I just -- it makes me feel weird when they're accepting it and there's just -- people don't seem to see that it's odd.

REHM

11:33:40
I can certainly appreciate the fact that you are thinking in Biblical terms, as you reference man and woman. However, society has changed. Society is changing. You ask my personal opinion. I have no problem with same-sex marriage. Thanks for your call. To Toledo, Ohio. Good morning, Don, you're on the air.

DON

11:34:16
Good morning. Thank you for taking my call.

REHM

11:34:18
Sure.

DON

11:34:18
I'm wondering if it's being proposed at all nationally, or has been, to have government not recognize marriage at all. I am a single person and more and more I guess I feel discriminated against and that I don't -- I'm not allocated the same rights and privileges as married people, especially in terms of later life issues and those types of things. I feel like I should be able to legally be able to designate who I want to do certain things legally and not have to get married in order to do so. So I'm wondering if that's all being proposed or even thought of.

REHM

11:34:51
Ron Elving.

ELVING

11:34:53
An interesting frontier for legal and political thought going forward as we see people delaying the institution of marriage, getting married later, if getting married at all, having children without getting married, which is increasingly normative in the United States. And as we see that going forward and people in states where perhaps the law is not changing as rapidly as in some other states, may particularly see themselves disadvantaged by this, perhaps not having a partnership kind of option. So I can see there being a certain natural alliance of a number of younger single people in asking on this frontier of legal question, where's mine?

REHM

11:35:33
Do you agree, Stuart?

TAYLOR

11:35:35
Yeah, I think there's a thoughtful line of analysis that marriage should not be a state matter. It should be a private matter, do in your church, just do it with your friends. But I don't think that that movement has any political momentum or force as of now. Whether it might ten years, twenty years from now remains to be seen.

REHM

11:35:56
But why shouldn't Don have the same tax advantages as someone who goes into a marriage? Perhaps Don has a child with someone else. They live together, they raise children together. Why does marriage legally have to come into it?

TAYLOR

11:36:21
Well, there's a strong humanitarian argument -- policy argument for what Don says. What it has to overcome is a lot of tradition, a lot of existing law and. And also the view of many people that the institution of marriage is an anchor for families, that it's better for children to have that anchor.

REHM

11:36:38
But, Stuart, you've got to recognize the percentage of divorce in this country. It's about 50 percent. How stable is that for children?

TAYLOR

11:36:54
Well, for the 50 percent who don't get divorced the argument is it's more stable. And by the way, it's interesting. Some advocates of gay marriage -- my former colleague Jonathan Rouch among others, argue in favor of gay marriage precisely because marriage is a better place for families and raising children than -- and for a normal, you know, a bourgeois existence, if you will than singlehood.

REHM

11:37:19
Thanks for your call, Don. And when we come back after a short break, more of your calls, your email. Short break.

REHM

11:40:04
And for this segment of the program, I have to read the tweet from Governor of Arkansas, Mike Huckabee, who tweeted, "My thoughts on the SCOTUS ruling that determined that same-sex marriage is okay," he puts in quotes, "Jesus wept." I'm sure there are going to be a lot of people out there, Camilla, who feel that way.

REHM

11:40:37
There is not whole hearted support for gay marriage or this ruling. But on the other hand, here's an email from Christopher, who says, "This is the happiest I've been in my entire 37 years on this planet. Growing up in one of the most conservative counties in Maryland, I thought I was alone in the entire world as a gay man until today. I had to pull over because I was crying for 30 minutes." So two extraordinarily different perceptions.

TAYLOR

11:41:28
Yes. Well, I think one of the panelists mentioned earlier that actually a group of different polls now in recent months has shown that there is majority popular support for the freedom to marry nationwide. And we've seen an extraordinary leap in public opinion favoring the freedom to marry in recent years. And this is not a trend that's going away. The support for the freedom to marry is greatest among young people, and even among more elderly people in the country support has grown demonstratively.

TAYLOR

11:41:56
And I think one of the broadest impacts of this type of decision, the majority opinion in Windsor rings in equality and liberty principles and it's about dignity and personhood, is that we are going to see an impact on children who are growing up in this country and who are just discovering who they are. These kids are not going to feel as though they are told by their government that they ought to be ashamed of themselves for who they are.

REHM

11:42:23
Or their parents.

TAYLOR

11:42:25
Yes, or of their family structure. That's exactly right. Or of their parents. And I think that is going to have a huge effect on the psyche of our youth. And that is one of the most important aspects of the Windsor decision.

REHM

11:42:37
All right. To Chris in Nashville, Tenn. Good morning.

CHRIS

11:42:43
Good morning. I love your show. Thanks for taking me.

REHM

11:42:44
Thank you. Sure.

CHRIS

11:42:46
I am in my mid-twenties. I am a very pro-gay marriage individual. I grew up in California and live now here. And I'm also a very pro-gun individual. Years ago I wrote a long post on the popular MySpace using the whole argument of equal protection under the law to support gay marriage. And I'm curious if that still is - does that now seem to be the logic being used to defend gay marriage. How that's gonna translate into the both gun ownership and concealed carry card holders traveling between states?

REHM

11:43:22
Jeffrey Rosen, any connection?

ROSEN

11:43:26
That's a wonderful question. You know what, Chris, I bet there are lots of people like you. Maybe you have a more libertarian inclination who think that individual rights are really important and that the individual right to marry whom you choose is supported by the individual right to keep and bear arms. Of course they're separate constitutional provisions at stake, formally the Second Amendment for the gun case and the Equal Protection Clause here, but I think that Justice Kennedy might and, in fact, has been sympathetic to your position. The strong language of federalism and individual liberty that we see in the DOMA opinion.

ROSEN

11:43:59
The fact that Justice Kennedy is offended by the idea of the federal government intruding in more than 1,000 statutes on state prerogatives and individual liberty is the same kind of concern about individual liberty that we saw in his Second Amendment opinions.

ROSEN

11:44:16
I'd be interested -- I don't know if Ron knows the polls on the number of people who both support gay marriage and support gun rights, but there are plenty of people here in Washington that are represented by the CATO Institute which, you know, filed briefs in favor of gay marriage as well as on behalf of the Second Amendment. So, Chris, you should feel happy you've got a lot of friends out there and it's a position that is certainly arguably well-rooted in the text of the Constitution.

REHM

11:44:43
Ron Elving.

ELVING

11:44:45
It's not a connection that's usually made. I haven't seen the exact Venn diagram for Second Amendment rights and for gay marriage, but I suspect that it's larger than most people would expect, particularly I would guess among younger people.

ELVING

11:44:58
But that is going to be part of the Libertarian option going forward, which I think is an important -- an increasingly important option for American voters and for particularly younger people who just reject the federal government or the idea of the federal government, or they reject the idea of an intrusive federal government judging what they can do in their lives. And I think that that to some degree is seen in the NSA debate as well.

REHM

11:45:23
All right. And here's an email from Aaron at Fort Bragg, N.C., who says, "I'm a member of the Army. I do not have access to marriage benefits due to DOMA's federal heterosexual definition of marriage. What does your panel think the effect on military benefits will be for same-sex couples?" Camilla.

TAYLOR

11:45:55
Well, I think that the military benefits are one of the benefits that you will soon be able to enjoy regardless of where you live around the country. There needs to be some clarity given by the administration of how these things are going to be enforced. And I expect that we will get that soon. Some of these agencies are rather large bureaucracies and so they take a little time to adjust to an opinion like this. But I think the military is an efficient place and we're likely to see relief for same-sex couples who have faced this discrimination despite having valid state law marriages for a long time.

REHM

11:46:31
Stuart.

TAYLOR

11:46:32
Yes, I think that's right. Now, it's important to remember, I think we have now 12 states that recognize gay marriage. It's only in those 12 states that gays will see any immediate benefits from this decision in terms of the federal benefits, because the other -- you know, the other states don't recognize gay marriages and this decision applies only when the state does recognize gay marriage. But I think the trend of public opinion we mention and the other trends which are going to sweep aside a whole lot of complicated arguments will in fairly rapid course lead to -- lead to benefits for gay couples all over the country.

REHM

11:47:12
All right. To Fort Worth, Texas, hi there, Dirk.

DIRK

11:47:18
Yes, Diane, a big fan. Thank you very much for taking my call.

REHM

11:47:20
Thank you.

DIRK

11:47:22
My point is that maybe we're looking at this backwards. Anybody who's been through a divorce knows and most states will agree that it's not a religious or a moral thing, it's a dissolution of a civil union, period. And if that's all that is, then it doesn't matter whether you're gay or straight.

REHM

11:47:39
Any comments, Ron Elving?

ELVING

11:47:44
No. I don't know that I would -- I don't know that I would try to disagree or sign on to that. I do think that -- I think that there is a tremendous shared responsibility in marriage in either case, in any case. And I think it's interesting that some conservative thinkers have -- in a particular way, have argued that conservatives -- social conservatives who care about the effect of marriage, if they see marriage as a positive, gay marriage, heterosexual marriage, if they see it as a positive, they really ought to support gay marriage.

REHM

11:48:18
All right.

ELVING

11:48:18
They should in fact insist on it.

REHM

11:48:20
Okay. Camilla Taylor, let's go back to the DOMA plaintiff, Edith Windsor. She was forced to pay more than $363,000 in federal estate taxes after her female spouse died in 2009. They had been together for 44 years. What happens now to Edith Windsor?

TAYLOR

11:48:54
Well, Edith Windsor gets her relief, as do thousands of other couples who are validly married in the eyes of state law around the country. And I think perhaps your question will raise some questions in the minds of some of the listeners about whether they will be able to seek relief for past years of discrimination. And that's something, again, that agencies will have to work out. And different agencies have different rules with respect to whether benefits could be provided retroactively in these circumstances.

TAYLOR

11:49:25
So some agencies have some discretion with respect to whether they can consider fairness for individual people based on their individual circumstances. Others don't. And some agencies like the IRS have rules for how far back you can go seeking refunds and so on. So these are things that we hope we will get guidance about from the administration very soon, and that hopefully we'll get an equitable and fair resolution that will respect how serious and painful this discrimination has been for many people over the course of many years.

REHM

11:49:55
You know, it's interesting because Thea Spyer died in 2009, and two years before she passed away, the two married. And Edith Windsor, an 80-year-old widow at the time that Thea passed, had she been a man would've inherited that money automatically. But because it was a gay union, that's why she had to -- I don't mean inherited, but she wouldn't have had to pay those taxes.

TAYLOR

11:50:36
That's correct. And that's the immediate impact...

REHM

11:50:39
Exactly.

TAYLOR

11:50:39
...and the immediate case is now she doesn't have to pay those taxes. But interesting when you think about retroactivity, Social Security Disability benefits are better for -- traditionally if you're married. And gay couples who are married legally will now qualify for that improvement in Social Security Disability benefits. Well, some of them may have been married for a long time. We'll see how far back that goes.

REHM

11:51:06
Okay. Now, if marriage -- several emails have come in to this effect. If marriage is no longer defined as union between one man and one woman, then shouldn't polygamy also be constitutional? Should marriage legally be opened up to any number of people? Jeff Rosen, it doesn't seem to me that this court ruling would address that issue.

ROSEN

11:51:43
That's exactly right. But it is an argument that Justice Scalia has made very forcefully in the past. When the court struck down sodomy laws in 2003 in the Lawrence and Texas case, Scalia said this means the end of all morals legislation, by which he meant laws designed to express moral disapproval, and he said that that means polygamy laws should be struck down because they too were based on moral disapproval of a particular marital arrangement.

ROSEN

11:52:09
Now, this is a wonderful question to throw out in a constitutional law class because you can ask people, well, can you think of a reason separate from moral disapproval for banning polygamy or banning gay marriage? And we've already talked about the difficulty of coming up with an argument in the gay marriage arena.

ROSEN

11:52:26
When it comes to polygamy, you can talk about protecting women and so forth. But then the counter is that there are some polygamist relationships that may be consensual. So the truth is both the caller and Justice Scalia have a good point, that once you've taken moral disapproval off the table, then many traditional restrictions on marriage are open to constitutional question.

REHM

11:52:48
Stuart.

TAYLOR

11:52:48
Justice Scalia said the same about incest, for example. Like polygamy, you know, the only basis for opposing it he claims, at least adult incest, is moral disapproval. Now, one interesting thing about the clash between Scalia and Kennedy here is moral disapproval in Scalia's mind is the best reason to have a law. Moral disapproval in Kennedy's mind delegitimizes a law because it's animus, it's animus against a class of people.

REHM

11:53:17
And you're listening to "The Diane Rehm Show." Okay. Let's go now to Rockford, Ill. Good morning, Nick. Thanks for joining us.

NICK

11:53:30
Good morning. My question is sort of touched upon. It goes back to I believe 1957 when interracial marriage was legalized. And I believe that was legalized due to the Supreme Court decision regarding the full faith in credit clause. How is that gay marriage is not legalized in the same fashion?

REHM

11:53:47
Camilla.

TAYLOR

11:53:49
Well, that was a question that the court could have reached in the Perry case, except that the court determined in its majority opinion that the proponents of Proposition 8 who brought that case to the U.S. Supreme Court had no standing to ask for (word?). So the court ended up not being able to reach the substantive questions in the Perry case. Now, that was not an issue that was raised in the Windsor case. There were no liberty claims there. There were equality claims. And it was concerning the constitutionality of the federal law known as DOMA which denies federal respect to valid state law marriages.

TAYLOR

11:54:23
However, I think there's a lot of language in Windsor that talks about the liberty and dignity of human beings to choose to marry that one unique and irreplaceable person you want to spend your life with. And that telegraphs where the court will stand should it be asked to reach the substantive question in a case that doesn't have the problems with the standing that were presented with the Proposition 8 case.

REHM

11:54:46
It's interesting. We've had an email that says, "The Supreme Court has put an unfunded mandate on the Treasury with this ruling. Would that mean in favor of Windsor and a refund of the amount of money?"

TAYLOR

11:55:07
Beyond that, it'll cost the government some money because this will, you know, these are benefits that people are now going to get, they couldn't get before. Benefits cost money.

REHM

11:55:14
Right.

TAYLOR

11:55:15
I don't think the amounts of money are large enough in the larger scheme of things to make that a major aspect of this case.

REHM

11:55:21
All right. And one final call from Hickory, N.C. Good morning, Corey.

COREY

11:55:29
Good morning. I'm wondering what this -- today's decision means for states such as mine, North Carolina, that have past constitutional amendments banning same-sex marriage. And I'll take my answer off the air.

REHM

11:55:39
All right. Thanks for calling. And to you, Jeff Rosen.

ROSEN

11:55:44
Well, it means nothing for the immediate future. That ban in North Carolina remains on the books. But I'm sure that there are lots of lawyers who are already busy filing briefs that will argue that the North Carolina ban and others like it are based on the same moral disapproval and the same effort to demean gays and lesbians that led Justice Kennedy and some of his colleagues to strike down the Defense of Marriage Act.

ROSEN

11:56:07
So those legal challenges will be supported by today's opinion. Of course, the court might choose to come out differently in the future. But there's no doubt that after today's DOMA ruling, state bans on gay marriage are more legally vulnerable than they were before.

REHM

11:56:24
Camilla, last word from you.

TAYLOR

11:56:28
Well, I agree with that. The court has given us a lot of wonderful language that affirms the dignity of all human beings to be treated equally. It has condemned the treatment of marriage as a same-sex couple as second tier. And this sends a great signal to all of us about the importance of equal treatment and about where the court will stand on the substantive issues.

REHM

11:56:50
Camilla Taylor, she's senior staff attorney with Lambda Legal. Jeffrey Rosen, president and CEO of The National Constitution Center. Stuart Taylor, author and journalist. And Ron Elving, senior Washington editor for NPR. My thanks to all of you.

TAYLOR

11:57:17
Thank you, Diane.

ELVING

11:57:18
Thank you.

ROSEN

11:57:18
Thank you.

TAYLOR

11:57:19
Thank you.

REHM

11:57:19
And thanks for listening all. I'm Diane Rehm.

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11:57:24
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