supreme court rulings dealing with same-sex marriage and reproductive rights. after that presidential speech writers tell stories about their work with presidents from nixon to obama. >> geoff and i have known each other through the university of chicago for a number of years, and i have always admired and respected him for his sometimes-iconoclastic legal positions regarding seemingingly embedded, nonnegotiable cultural institutions. [laughter] one has only to reflect back on the social, religious and legal culture of this country, that history which everyone in this room has been witness to, to be astonished at how rapidly our views have changed towards same-sex marriage. it took real couraging -- courage to address an injustice

that generated as much heat and animus as this topic did. please help me welcome a man who stood up to argue and to defend what our nation's highest court has now recognized as a constitutional right, professor geoffrey stone. [applause] >> thank you. i'm delighted to be here. my talk this afternoon derives from a book that i am currently finishing titled "sex and the constitution." although the book addresses such issues as obscenity, contraception, homosexuality generally, abortion and so on, i decided to focus specifically this afternoon on the issue of

same-sex marriage, an issue that cuts to the very heart of the meaning of equal citizenship. in august of 1982, an atlanta police officer went to the home of michael hardwick to serve an arrest warrant for public drinking. upon entering the home, he observed hardwick and another man engaged in oral sex. the officer placed both men under arrest for the crime of sodomy. in the case decided in 1986, the supreme court held that the homosexual sodomy law in georgia was not unconstitutional. noting that the constitution says nothing about a right to commit sodomy and that prescriptions against homosexuality, quote, have ancient roots, justice byron white -- who wrote the majority opinion -- concluded that to claim that the constitution protects a right to engaging in such conduct is at best

facetious. in a concurring opinion, chief justice warren burger added the condemnation of homosexual conduct is firmly rooted in judeo-christian moral and ethical standards and that the idea that sodomy was protected would be to cast aside millennia of moral teachings. justice harry black mono, joined by justices brennan, marshall and stephens, dissented. although conceding that values had proscribed for hundreds of thousands of years, blackmon insisted that that fact alone could not provide adequate justification for the georgia law, that certain religious groups condemned behavior at issue, he reasoned, gives the state no license to impose their judgments on the entire citizenry. to the contrary, the legitimacy of secular legislation, he said,

depends on whether the state in advance some justification for its law beyond its conformity to its religious doctrine. blackmon concluded that the georgia statute could not be reconciled with the united states constitution. that, however, was a dissenting opinion. the court's invocation of moral and religious prescriptions against homosexuality played a central role in the justices' reasoning in bowers and it's, therefore, useful to have some understanding of that history. so let's take a look at the ancient roots that justice white invoked. the prechristian world generally thought of sex as a positive part of human nature. it did not see sex as bound up with questions of sin or religion. the ancient greeks, for example, focused not on sexual sin, but on whether an individual's

conduct was actually harmful to others. and this extended even to homosexuality. indeed, a common feature of greek sexual life was that adult men often had same-sex relationships with adolescent boys. this might seem strange to us, but greek poetry, history and literature celebrated such relationships and identified them with love, honesty, integrity, honor and courage. similarly, although roman sexual life was different from that of the greeks, the romans too celebrated sexual pressure and neither roman religion nor be law condemned same-sex sex. the emergence of christianity, however, produced a profound change in the prevailing understandings of sex. by the end of the fifth century, christianity had come to condemn sexual desire as inherently shameful and as an evil temptation that must be suppressed. this shift occurred over the

course of several centuries, but it was augustin who finally crystallized the early christian understanding of sex. in a critical leap, augustin linked sexual desire to the fall of man. adam's transgression, he argued, had not been one of disobedience as the ancient hebrews had believed, but one of sex. augustin, therefore, maintained that every sexual desire is born out of evil, that every child born out of evil is born into sin. and that it is to -- it is through sex that man passes on the original sin from one generation to the next. augustin, therefore, concluded that man's only hope for redemption lay in repudiating the sexual impulse and with it the burden of sin and shame inherited from adam. augustin's vision ultimately shaped the future not only in christianity, but of western culture and law more generally.

during the next thousand years, christian dogma backed by the threat of hellfire and damnation attained not only religious, but social, political and legal authority. the sin of sodomy came to be seen as uniquely dire, for as the biblical story of sodom had taught, for this particular sin god will punish not only the sinners, but also those who fail themselves to prevent the sin. but it was till unclear precisely what acts constituted sodomy. it was thomas aquinas who, in the 13th century, first drew a sharp distinction between opposite sex and same sex unnatural acts. although oral or anal sex with a person of the opposite sex was deemed a vice against nature, such acts with a person of the same sex, he concluded, constituted the worst form of sodomy.

before long thomas' thinking on this point became the dominant authority in christian doctrine. at roughly the same time and not coincidentally, same-sex sex a came for the first time to be declared not only a sin, but also a crime. that is, the church for the first time conscripted the secular law to extend its prohibition on same-sex sex not only to those who shared the faith, but to everyone regardless of their personal religious beliefs. criminal statutes against same-sex sex were thus enacted throughout europe, and because of the heinous nature of crime, these laws called for homosexuals to be castrated, dismembered, burned at the stake, drowned, hanged, stoned to death, decapitated or buried alive. in short, homosexuals for the first time became the object of a systematic campaign of extermination.

the reformation brought about significant changes in the protestant attitude towards sex. those changes did not extend homosexuality. to the contrary, protestant reformers reaffirmed in no uncertain terms the traditional condemnation of homosexuality as a detestable and abominable sin. in the american colonies, for example, the puritans declared that sodomy must be punished with death without mercy. by the time of the american revolution, the colonies -- under the influence of the enlightenment -- had stopped using the criminal law to prosecute most forms of consensual sex except for the crime of sodomy which remained a capital offense. indeed, sodomy remained a serious felony in every state in the nation for the next 200 years. throughout all of this history until the late 19th century, it was generally assumed that individuals who chose to engage many same-sex sex -- in same-sex

sex were no different than other individuals who chose to engage in other types of criminal or or sinful behavior. engaging in homosexual sex, like engaging in murder or robbery, was simply a choice. that assumption began to be questioned for the first time in the late 19th century as medical authorities became interested in the issue. for the first time, persons drawn to same-sex sex began to be seen as individuals possessed of a distinctive psychological identity. it was in this era that the concept of the homosexual first came into being. leading studies of homosexuality posit that persons a afflicted with this pathology were strange freaks of nature. among the questions debated at the time were whether the inclination to engage in homosexual conduct was congenital or acquired, whether it was curable or incurable and

whether it should be accepted as an unavoidable condition or actively resisted and suppressed. positions in this era proposed a broad range of remedies for homosexuality including hypnosis, psychoanalysis, sex with prostitutes, intense bicycle riding -- [laughter] rectal massage, burning the neck and lower back with hot irons, electric stimulation, castration many doctors recommended the sterilization of homosexuals in order to prevent this condition from being passed on from one generation to the next. and by 1938 32 states had enacted compulsory sterilization laws aimed at homosexuals. also in the 1930s the image of the homosexual took on an increasingly sinister cast. a growing public anxiety over

sex crimes recast the dominant image of home sexuals as suddenly dangerous psychopaths who were naturally inclined to commit the most unspeakable crimes against others. demonized not only as perverts, but now as child molesters as well, homosexuals became the new enemy of the people and arrests for sodomy increased dramatically in the 1930s. during world war ii, the united states for the first time attempted to prevent homosexual men and women from entering the military. and those who were discovered in the military were discharged in proceedings that often left them branded for life. with the advent of the cold war, things got even worse. fearful of domestic subversion, americans turned with a vengeance against homosexuals. the conflation of communists and queers seemed only logical for americans viewed communist as atheistic, un-christian u

immoral and degenerate. the russians are strong believers in homosexuality, asserted one congressman. and -- [laughter] and red-baiting journalists warned communists are converting american youth to homosexuality in order to defeat us from within. by 1950 the lavender scare, as it came to be called, was well underway. government agencies began using lie detectors to determine whether their employees were homosexuals. the fbi compiled lists of suspected homosexuals from local vice squads, and president eisenhower issued an executive order declaring sexual perversion -- by which he meant homosexuality -- a serious security risk. in light of the intensity of the anti-homosexual field that gripped the nation, gays and lesbians found themselves increasingly isolated. in a society in which the dominant religion excoriated homosexuality as a heinous sin, the law branded it as a vicious

crime, and the medical profession diagnosed homosexuals as diseased, the vast majority of individuals who harbored homosexual impulses did their best to hide their secret shame from family, friends, neighbors, employers and associates. the terrible fear of discovery kept the secret lives of most homosexuals invisible even to one another. indeed, even civil rights groups turned their backs on gays and lesbians in this era. in 1957, for example, the national board of the american civil liberties union declared, quote: it is not within the province of the aclu to question the validity of laws aimed at the suppression or elimination of homosexuals. by the late 1960s, though, inspired by civil rights and the women's rights movements, a handful of courageous gay men and lesbians began calling openly for the acceptance of homosexuals as equals in society. in 1969, for example, carl

whitman penned what he termed the gay manifesto in which he declared, quote: our first job is to clear our own heads of the garbage that's been poured into them. liberation for gay people is defining for ourselves who we are. it is time for us to come out. this was the first time that anyone had used the term "come out" in this manner. for those who sought equal rights for gays and lesbians, coming out was a radical and daring act that would affect every aspect of their lives. indeed, as late as 1969 only a few hundred members of the growing gay rights organizations in the united states had publicly identified themselves as homosexuals. the next decade saw gradual but halting progress in the cause for gay rights. in 1972 a lesbian was allowed to retain custody of her children in a contested divorce for the first time in american history.

in 1973 the american psychiatric association declared for the first time that homosexuality was not a mental illness. and by the end of the decade, 22 states adopting the recommendation of the american law institute had repealed their lays making son sense -- laws making consensual sodomy not a crime. these developments sparked a sharp backlash, however. the most explosive response in dade county, florida. in is the 77 the -- in 1977, the county commission prohibited employment discrimination on the basis of sexual orientation. local religious groups were outraged and demanded an immediate repeal of the ordnance. local baptists charged that the law violated god's biblical commandments, and the national association of evangelicals soon entered the fray. leaders of the christian right,

including jerry falwell, pat robertson and jim and tammy baker, came to campaign for the repeal, and dade county voters repealed the ordnance by an overwhelming margin. this victory generated momentum for a new religion-based, anti-gay movement. the campaign took on an ugly tone as bumper stickers appeared across the nation with such messages as kill a queer for christ. within two years, many of the laws that had been enacted to protect gays and he is beans from discrimination were -- lesbians from discrimination were also repealed. the christian right said such laws promoted child molesting, and the reverend jerry falwell raged that homosexuals did not reproduce, they recruit, and many of them are after your children. the anti-gay rights campaign saw fight as a religious battle for the christian soul of america. soon thereafter aids santorum the gay mustn't -- aids struck

the gay community. as the disease became associated with homosexuality, the christian right deemed aids god's punishment for homosexual sodomy. the reagan administration, which had actively courted the christian right, had no interest in devoting government time or money to an illness that was thought to threaten only ga,ay men. the white house instructed the center for disease control, quote, to look pretty and do as little as you can. over the course of the next decade, aids ravaged the homosexual community, killing more than a quarter of a million gay men and leaving hundreds of thousands more to wonder if they might be next. ironically though, the horror of aids brought homosexuality into the light. as thousands of gay men died horrible deaths, people had to take notice; often, though not always, with think and concern.

with sympathy and concern. gradually, one person at a time in often awkward and sometimes excruciatingly painful conversations with friends, the previously-closeted lives of homosexuals became visible. first, out of necessity and desperation, and then later out of candor and self-respect. gay invisibility was suddenly melting away. at the gay and lesbian march on washington in 993, hundreds of thousands of individuals wearing pink triangles marched proudly past the white house. i know because i was there. there's the pin that i wore that day. [laughter] now, i have to confess that i wasn't in washington in order to participate in the march. rather, i was there for a

reunion of justice william brennan's law clerks -- one of whom i was -- at the supreme court that happened to be on the same day as the march. but once there, i did participate in the march. but now i want to tell you manager that i've only once publicly revealed before. after i got to the supreme court for the reunion, the brennan clerks all gathered in the supreme court chamber, and i had a couple of these pink triangle buttons in my pocket. my former wife nancy and i decided that we had to do something in the spirit of the day, and so while i kept guard, she discreetly pinned a pink triangle button on one of the red stripes on the large american flag that hangs next to the bench -- [laughter] behind which the justices sit when they're hearing cases. and the last time i checked, it was till there. [laughter] but -- it was still there. but don't tell anyone. in any event, to return to my

theme, four years after the 1993 march, ellen degeneres -- star of the popular abc televisioning show "ellen" -- came out as a lesbian. shortly thereafter, 42 million americans tune in to watch her character, ellen morgan, reveal she too was a lesbian. not everyone cheered. the response of the christian right was pierce. the reverend jerry falwell called ellen degeneres ellen degenerate. and donald wildman railed that homosexuality was a sin grievous to god and repulsive to christians. this struggle, he declare ld, was a matter of life and death, because if we fail, we fear the judgment of god on our nation. the battle lines had been clearly drawn. and that brings me back to the supreme court. as we saw earlier in its first encounter with homosexuality, the supreme court held that a state could constitutionally

make homosexual conduct a criminal offense. and the court explained that given the history of religious and moral condemnation of homosexuality, any suggestion that the constitution could be interpreted as protecting such behavior was at best facetious. the court's second foray into this arena was roamer v. evans decided exactly a decade after bowers. as i noted earlier, beginning in the late 1970s, several cities like dade county had enacted ordnances prohibiting discrimination on the basis of sexual orientation. as in dade county, however, this generated a sharp response from the christian right which usually succeeded in getting the laws repealed. in colorado after denver enacted an antidiscrimination ordnance in 1991, a coalition of christian right organizations launched ap aggressive campaign

to amend the colorado constitution to override the city's odder nantz. amendment two, which was adopted in a statewide referendum, provided that neither the state of colorado, nor any of its subdivisions could legally enact any law that protected homosexuals against discrimination. nine days later, lawyers from the american civil liberties union -- which had changed its mind by this point -- filed suit claiming that amendment two violated the united states constitution. in light of bowers, it seemed clear that the supreme court would reject the challenge and uphold amendment two. but in a stunning 6-3 decision, the court held amendment two unconstitutional. justice anthony kennedy, who had been appointed to the court by president ronald reagan, surprisingly authored the court's been. in kennedy's view, the problem with amendment two was that it imposed a special disability only upon homosexuals. -so because under -- this was so

because under amendment two every group in colorado was free to try to persuade a city council, a state university or the state legislature to enact laws protecting them against discrimination except homosexuals. because of amendment two, only homosexuals would have to amend the state constitution before they could obtain any protection against discrimination. and with that fact in mind, justice kennedy turned to the equal protection clause of the 14th amendment which provides that no state shall deny to any person the equal protection of the laws. under that guarantee if a law treats some people differently from others, it ordinarily will satisfy the equal protection clause as long as it bears a rational relationship to some legitimate purpose. and although almost every law passes that highly deferential standard of review, justice kennedy concluded that amendment two did not.

this was so, kennedy reasoned, because a law declaring that it shall be more difficult for one group of citizens than for all others to seek aid from the government was virtually unprecedented in american history and was, therefore, impossible to escape the inference, he said, that the disadvantage being imposed on homosexuals by this constitutional amendment was the result not of any rational effort to further a legitimate state interest, but of animosity and antagonism toward the class of persons who were disadvantaged. and because of their desire to harm a political popular group cannot itself constitute a legitimate interest, kennedy concluded that amendment two violated the constitution. justice antonin scalia, joined by chief justice rehnquist and justice thomas, was of a rather different view. [laughter] scalia maintained that amendment two is not the manifestation of

a, quote, bare desire to harm homosexuals but is, rather, a rational and perfectly legitimate attempt by colorado cans to preserve sexual mores. he castigated justice kennedy's reasoning as clearly inconsistent with court's precedent in bowers v. hardwick. the supreme court's third decision regarding the rights of homosexuals, lawrence v. texas, was pretty much a rerun of bowers. police officers were dispatched to a residence in response to a reported disturbance. after they entered the residence, they saw two men engaging in anal sex. the men were arrested, charged and convicted of violationing a texas statute making it a crime for a student to engage in intercourse with another person of the same sex. since 1982 bowers very hardwick

had been used to justify discrimination against gays and lesbians in deportation proceedings, adoption proceedings, military discharges, employment discrimination and a host of other contests. after all, homosexual conduct is criminal, then a homosexual is no different than a rapist, a robber or thief. but much had changed in the 17 years between bowers and lawrence. not only had aids devastated the gay community and changed the public's perception of homosexuality, but 60% of americans now thought that homosexual sex should no longer be deemed a criminal offense. in a 6-3 decision, the supreme court overruled bows v. hardwick and held the texas statute unconstitutional. ..

there was no constitutional legitimate justification for making same-sex sex a crime. justice scalia joined once again by rehnquist and thomas dissented. scalia accuses the cortisone onto what he termed the homosexual agenda. he few to the court had no business invalidating legislation that had been legitimately enacted by the citizens of texas. outgoing justice scalia's

outraged religious conservatives throughout the nation were livid. after robertson denounced the court for renting the moral fabric of the nation. jerry falwell board that lawrence would lead to beastiality. the death knell of american civilization. when it came time for justice kennedy to announce the judgment of the court in lawrence, sitting not far from -- he read a brief statement explaining the results from the bench at the supreme court chamber was of course packed. at the end he declared quote, it was not correct when it was decided and it is not correct today. it ought not to remain binding precedent. it should be and now is overruled. it was remarkable moment, overwhelmed by what's happening

many of the gay, lesbian advocates sitting in the gallery openly sobbed. the gay, lesbian committee was an occasion of dancing in the street. joyous demonstrations erupted in cities across the nation. for gays in america, lawrence meant much more than that rarely enforced anti-sodomy laws could no longer be enforced or rather lawrence said never again would the rights be dismissed to the highest tribunal in the land, as that best facetious. never again would they wonder whether the words engraved on the pediments of the supreme court justice, equal justice under the law, included in. the constitution was now their constitution, too. in san francisco group of veterans who have been expelled from military service during world war ii because of their sexual orientation proudly saluted as the rainbow flag which are flown atop an 80-foot pole for more than five years was lowered, and the american

flag for the first time was raised in its place. for most of american history the notion that a man could marry a man, or a woman could marry a woman, seemed utterly absurd. 1990, however, only four years after the case, three gay couples in hawaii applied for marriage licenses which were of course denied. audaciously they then filed suit in state court claiming that the states refused to allow same-sex marriage violated the hawaii constitution. it's pretty much everyone supports the hawaii supreme court ruled in 1993 that the state's law restricting marriage to a man and a woman might indeed violate the hawaii constitution. this decision provoked a furious response from the christian right and almost immediately states across the nation rushed to amend their state constitutions, explicitly to define marriage as involving

only one man and one woman. the goal of these amendments with both to prevent their own state courts from following the hawaii supreme court suggestion and to make it impossible for future majorities in the state should they ever emerge to legalize same-sex marriage by enacting legislation to that effect. these issues played out at the national level as well. in 1996 election approached, the anti-gay rhetoric was very much. dick armey, republican whip, publicly referred to congressman barney frank as barney factor republican speaker of the house newt gingrich proposed the defense of marriage act which provide on the other things that if any state or to recognize marriage between persons of the same sex, persons entering into such marriages would be ineligible for any of the multitude of federal benefits that were otherwise available to married couples.

the hearings on doma for openly homophobic. members of congress described gays and lesbians as quote sick, perverted, and dangerous, charge finish was facing dangers attack upon the god principles. the flames of hedonism are looking at the foundation of our society. congress quickly enacted legislation and with a presidential election around the corner and with the american people opposed to same-sex marriage by a margin of 68-23% president clinton signed doma into law. of course, none of this mattered at the time because same-sex marriage was not legal in any state an issue. seven years later in 2003, the massachusetts supreme court held that laws denying same-sex couples and the freedom to marry violated the massachusetts constitution. massachusetts became the first state in the nation to legalize same-sex marriage. in response, 13 additional states probably amended their state constitutions to make

clear that they prohibited same-sex marriage. several years later the supreme courts of connecticut, california and iowa followed massachusetts lead and held that their state constitutions also guaranteed same-sex couples the right to marry. by the pushback again was furious. california, for example, the christian right launch a vigorous and successful campaign to amend the state constitution to outlaw same-sex marriage and to override the supreme court opinion. and voters in iowa voted out of office three of the state supreme court justices who voted to recognize a state constitutional right for same-sex marriage. as the executiv executive direce american family association warned, if any judge attempts to impose an immoral agenda on us, we are going to take you out. despite several landmark victories, the movement for

same-sex marriage had stalled. doma remained the law nationally. most efforts to legalize same-sex marriage have been overturned, and by 2013 more than 30 states have enacted state constitutional amendments expressly outlawing same-sex marriage. this brings me to the supreme court's fourth decision in our story, windsor versus the united states. in a bitterly divided by four decision from the supreme court invalidates doma on june 262013 -- june 26, 2013. as in romer and lord, kennedy again authored the opinion of the court. he was joined by justice ginsburg, breyer, sotomayor, taken. chief justice roberts and justice scalia, thomas and alito dissented. the opinion for the court justice can explain that the issue presented was not whether states were constitutionally obligated to recognize same-sex

marriage. rather, the issue is whether the federal government could constitutionally discriminate against couples who have been legally married in a state or because those individuals happen to be of the same sex. and approaching the question justice kennedy emphasized that a state's decision to give same-sex couples the right to marry conferred upon them the dignity and a status of immense import. doma's principle of fact, can be maintained, with identified a subset of state sanctioned marriages to make them unequal. kennedy argued it is by placing legally married same-sex couples in the position of being second tier marriages, doma demeans the couple and humiliated tens of thousands of children who were then being raised by same-sex couples. because no legitimate federal justified along with disparaging those whom the state sought to

protect, kennedy concluded that doma violated the constitution. in a series of dissenting opinions justice scalia characterized the court's reasoning is nothing short of remarkable. very sports, scalia this was kennedy's analysis as quote perplexing, confusing, absurd, overcooked and legalistic garble. scalia really what he insisted upon in lawrence, the constitution is not for this government to enforce traditional, moral and sexual norms. and scalia angrily predicted that windsor would lead to recognition of a constitutional right to same-sex marriage. as far as this court is concerned, he fumed, quote, no one should be fuel for it is just a matter of waiting for the other shoe. what's striking off are the court has moved into 27 years. this was due to several factors. one of which was not an overall

move of the court in a more liberal direction. to the contrary, on a broad range of issues including affirmative action, campaign finance, gun control and voting rights to name just a few, the supreme court will have moved come if anything, notably for more conservative than the court had been at the time of bowers. what had changed in those years was the public awareness of the gays and lesbians in society, and the public legal understanding of both the morality and wisdom of losses committee on the basis of sexual orientation. indeed, public opinion on those issues had shifted dramatically between bowers and when star. in 1986, no one had even bothered to vote on the question of same-sex marriage, the idea seemed ludicrous. it wasn't until 1996 that gallup finally thawed as people about same-sex marriage, at that time only 22% of americans thought

that same-sex marriage should be legal. by 2013, however, 54% of americans shared that view. this shift was due to many factors but most important was the profound change in the visibility of gays and lesbians in american society. this transformation effected not only everyday citizens but also of course legislators, mayors, governors, presidents and changes. and with these changes the traditional judicial understandings of such fundamental legal constructs as liberty, equality and due process as applied to homosexuals were suddenly called into question, and rightly so. it is important to note that those changes in public attitudes and understandings did not in themselves dictate any particular change in constitutional doctrine. bowers in windsor where both 5-4 decisions. only one vote had changed over the course of those 27 years. robert bork, if robert bork had

been confirmed to the supreme court and anthony kennedy therefore had never been appointed, the outcome of wins almost surely would've been 5-4 the other way. so my point isn't that the divergent outcomes in these cases were shaped by at least two critical factors. the general public understanding of homosexuality at the time at the decision, and the particular entry but approaches and valleys of the individual justice who happen to be on the supreme court at this specific moment when the issues arose. in the years after windsor there was a virtual avalanche of lower court decisions invalidating state laws denying same-sex couples the freedom to marry. the other shoe, and scalia predicted, was indeed about to fall. and berger felda versus hodges decide on june 26 of this year, choose to the day after windsor, the supreme court in another

bitterly divided 5-4 decision held that states cannot constitutionally denied to persons of the same sex the freedom to marry. the opinion written once again by justice anthony kennedy was premised on what justice can be described as transcendent importance of the right to marry. marriage allows two people to find and life that cannot be found alone. for it arises from the most basic human needs and is essential to most profound hopes and aspirations. although conceding that marriage traditionally have been is that between a man and a woman, kennedy declared it was both appropriate and inevitable in a free society, the new dimensions of freedom become apparent to new generations of americans over time. noting that the court had long held that fundamental personal choices central to individual dignity economy can be protected by the constitution even if they're not explicitly listed in the constitution, and that the

court had long recognized marriage as one of those implied fundamental rights, kennedy concluded although the limitation of marriage to opposite sex couples may have long seemed natural and just. its consistency with the central meaning of the fundamental right to marry is now manifest. predictably chief justice roberts and justice scalia, thomas come and alito were vigorous in their dissents. roberts accused the justices in the majority of rapid and reckless judicial activism. the majority's decision he declared quote is an act of will, not legal judgment. the right has no basis in the constitution. justice glue, thomas and alito authored similarly scathing opinions. justice scalia charged that the majority opinion lacked even a thin veneer of law and that it is quote a naked judicial claim to support legislative power, fundamentally at odds with our

traditions and our system of government. justice thomas added that the majority's decision threatens the religious liberty that our nation has long sought to protect and justice alito railed that the decision evidence quote deep corruption of constitutional interpretation. so who is right? than mere fact that five is more than four does not necessarily make the five correct, even though it makes the law. so who is right? let me offer a few observations. first, th the theory expressed y the center in their condemnation of the majority's opinion, obergefell, is completely unwarranted. although there are reasonable grounds to disagree with the court decision, i'll get to them in a moment, there's nothing about the decision itself that merits the screeching charges of judicial usurpation of the democratic process. indeed, of those very same

justices have embraced highly controversial and activist interpretations of the constitution in awarding, for example, the 2000 presidential election to george w. bush and holding affirmative action programs unconstitutional, and building gun-control regulations unconstitutional. and holding laws regulating campaign expenditures and contributions unconstitutional economic voting rights act of 1965 unconstitutional, to cite a few examples. for them to purport to stand tall on the pedestal of judicial restraint is nothing short of hypocrisy. second, that are, in fact, reasonable grounds on which to disagree with the court's analysis. and invalidate laws prohibiting same-sex marriage, justice unity relied specifically on the argument that marriage is a fundamental right and the

government therefore cannot constitutionally limit the right to marry, even to same-sex couples, without a compelling justification. the very notion the constitution protects unenumerated rights that are not mentioned in the constitution has always been a highly controversial concept. the constitution expressly protects the freedom of speech, religion, unreasonable search and seizures, and other expressly building gated rights, a central puzzle to the cost special interpretation has always been whether the constitution implicitly also protects other rights that have not been expressly spelled out in the text. now, historically the court has recognized that such rights exist, including the right not to be sterilized, the right to use contraception, the right to privacy, the right to vote, the right to decide for oneself, whether to bear or beget a child, the right to raise one's own children, the right to

travel, vote, and so on. by the recognition of such unenumerated rights is always a tricky business. it gives the justices potentially enormous authority to override the democratic process by imposing their own particular value judgments about what they happen to think to be a fundamental rights. so as the dissenters in obergefell argued, one constraint that have sometimes been suggested by the justices is that the court should recognize and implied fundamental right only if the claim to write is one that has been deeply rooted in our nation's history and traditions. marriage, of course, if such a right. but asked the dissenters argued, how we think about that in the context of same-sex marriage is complicated. what is deeply rooted in our nation'nation's history and tra, they argue, is marriage between two persons of the opposite sex.

not marriage between two persons with the same sex. thus, in their view the court in obergefell was not protecting a right to was deeply rooted in our nation's history tradition, but instead creating an entirely new right out of the whole club, a decision t they insist that is beyond the legitimate authority of the supreme court. although this is a reasonable argument, it is not compelled by the actual practice of the court, which over time has not limit itself to defining constitutional fundamental rights in this manner. but the point is certainly an arguable one, if the dissenters objection is far from crazy. the report public to make is that my own view is important in obergefell, made the wrong argument. that it should decided the case not on the ground that marriage is a fundamental right, but on the ground that discrimination

against gays and lesbians violates the equal protection clause. i say this for two reasons. the first of which, which is obvious is that i don't, i think it is a stronger argument legally and less open to the kind of challenge that i stood a moment ago. i will come to the recent later. so the supreme court generally holds the laws are consistent with the equal protection clause as longer safe rationally further, a highly deferential standard. the court also held the laws that discriminate against individuals on the basis of so-called suspect criteria are especially problematic under the equal protection clause and that they are unconstitutional unless they can survive a highly demanded standard of justification. but because laws discriminate against african-americans are the paradigm violations of the equal protection clause, the courts generally considers several factors in deciding whether this commission against

any particular group should be deemed similarly suspect. first, whether the group is experienced and long history of discrimination. second, whether the defining characteristic of the group is essentially immutable or unchangeable, and third, whether the group can effectively protect themselves against discrimination through the political process. those who challenged the constitutionality of laws that discriminate against gays and lesbians maintain that such discrimination satisfied these criteria and that such laws should therefore be understood as presumably unconstitutional for equal protection reasons. in response, those who defended the constitutionality of laws discriminate against gays and lesbians maintain that homosexuality is a choice, that what homosexuality call a history of discrimination is therefore no different than history of discrimination against arsons and murders and

gays and lesbians in event have ample political power. into their view of laws that discriminate against homosexuals are completely different constitutionally dumb laws that discriminate against african-americans or women or hispanics or japanese-americans, all of which the court upheld are constitutionally suspect. in my view, this rationale, this equal protection argument, would have been a much better basis for the court decision that mr. lutz on marriage as a fundamental right. not only because i think it's a stronger argument but also because it would resolve all discrimination against gays and lesbians, not only the issue of marriage. why do you think this is a strong argument? days and lesbians have clearly been subjected to a long history of discrimination. sexual orientation is not a matter of choice, and gays and lesbians consistently have the interest dismissed and overridden in the political process or put simply and especially in light of that

history and history i described earlier, laws that discriminate against gays and lesbians whether in marriage, child custody, employment, housing or any other context should probably be deemed constitutionally suspect innocence of their highly likely to be tainted by considerations of animus, hostility from ignorance and prejudice. this to me is the deepest and truest reason for invalidating all laws that discriminate against gays and lesbians. i would like to close with one final observation. for most of american history, a particular understanding of religion dictated the laws of issues like sexual expression, obscenity, contraception, abortion and homosexuality. in the last half-century through largely not entirely the supreme court of the united states, those religious values have been pushed aside and individuals have increasingly been free to act on their own personal and religious beliefs.

rather than to be debated to by the religious beliefs of others. this is in my view, a great achievement in a society dedicated to the separation of church and state. but it now does leave us with an interesting challenge. our constitution also guarantees the freedom to practice one's religion. with the demise in these respects of a religious state, those who over traditional christian values now find themselves on the defensive. no longer able to did take that as must act in accord with their religious beliefs, they now demand that they at least be permitted to act in accord with her own religious beliefs. hobby lobby demands the right not to provide certain contraceptives to its women employees. kim davis demands the right not to sanction same-sex marriages. catholic priests demand the right not to marry same-sex couples. floors, bakers, hotel and restaurant owners demand the

right not to participate in same-sex weddings. -- florists. these are not easy questions for one who values both separation of church and state, and the freedom of religion as wide. and those are issues that the court and society will continue to wrestle with as we go forward. but perhaps the most astonishing thing about asserting -- supreme court decision in obergefell is that the backlash which was so anticipated has, in fact, been so tepid. that may change over time but i think not. this is not abortion. those who oppose abortion sincerely believe that it is the murder of children, and if one believes that abortion is the murder of children, it is easy to understand why you did not give up the fight. on homosexuality, the reality is that for most people they can live with it. they didn't think they could come they never imagined they could, but they can.

[laughter] so thus far the response with a few odd sections like kim davis has been almost nonexistent or even in the states which most have expected our servers response. we can and should bask in the court that our nation is taken another important step in our protection of human dignity and citizenship and equality. we have many steps left to take, but this is one that we continually celebrate together. but to gain similar celebrations in the future, we constantly have to challenge accepted wisdom. no one in this room would imagine 25 years ago that the supreme court of the united states would've held gays and lesbians have a constitutional right to marry. that was virtually unthinkable. we must always remember that we, like those who went before us, hold the belief that our

children and our children's children will rightly come to regard as naïve, foolish, and bigotry, even though we don't understand that at the moment. and as we strive to fulfill the obligation of citizenship in a free society, we have to have the courage to open-mindedness and integrity to question the conventional wisdom, and always to challenge the nature of things. thank you. [applause] >> when a torpedo from a german u-boat sank the lusitania on its voyage across the atlantic, it marked a crucial point in the lead up to america's entry into world war i. it's the focus of erik larsson's book, the last crossing of the lusitania. watch that presentation of q&a today at 7 p.m. eastern on

c-span2. later a number of authors talk about their memoirs starting with former new times reporter judith miller. she's followed by gloria steinem, former white house press secretary dana perino, and a correspondent for the atlantic. that get started tonight at 8:30 p.m. eastern on c-span2. >> this discussion brings together several presidential speech writers ranging from nixon to the obama administration. people talk about stories from the time in the white house and what goes into writing presidential speeches. [inaudible conversations] >> good afternoon, everybody. my name is alesha sands. i am not a speechwrite