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tv   Capitol Hill Hearings  CSPAN  March 28, 2013 1:00am-6:00am EDT

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>> i am the director of the lgbt project at the aclu. i want to say a few words about what the defense of marriage act does. in our federal system, the federal system does not married people. states marry people. but whether you are married and not makes a difference in a lot of different federal context. there are over 100 federal laws that depend on some way whether you are married or not. your social security benefits, your driver benefits, whether you get to family medical leave to take care of your spouse, whether you're federal government recognizes your spouse is your spouse. and yes, taxes change as well. at the same time, there are
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130,000 married same-sex couples in the united states today who doma says requires the federal government to treat those 130,000 married same-sex couples as unmarried in each of those federal context. that is what caused what happened to edie to happen, that she was treated as on married -- unmarried although she spent 40 years with the woman who became her spouse. they spent time together, good times and bad, in sickness and health, just like any married couple, and for the federal government to pretend there marriage does not exist is unfair, un-american, and unconstitutional. >> hi. i am donna lieberman, the executive director of the american civil liberties union.
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i am proud to stand here today as part of team edie windsor. my state, the state of new york, respects the right of all couples, straight or gay, to marry. so long as doma is on the books, these marriages are not truly equal. the federal government treats new york's lesbian and gay families as though they do not exist. it is time to put any end to doma and the 2-tiered system of marriage it has forced on our state. and it is time to ensure that the federal government treats the marriages of all new yorkers with the dignity and equality they deserve. the federal government should never again be allowed to reduce the love of a married couple like this to the legal status of strangers.
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thank you. >> hi. i'm edie windsor. someone wrote me a large speech which i am not going to make. there are a couple things i want to say. i want to tell you what marriage means to me. it is kind of crazy people and you live together for 40 years. we were engaged. we would not wear rings because i was still in the closet. i am here today and out lesbian to the united states of america, which is kind of overwhelming for me. when she died four years ago, i was overcome with grief. within a month, i was hospitalized with a heart attack. and that kind of conduct is usually looked at as broken heart syndrome. in the midst of my grief, i realized the federal government was treating us as strangers and i paid at humongous estate tax.
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this was not easy. i live on a fixed income and it was not easy. many people asked, why get married? maybe we were older than 75 at the time. but the fact is that everybody treated us as different. it turns out that marriage is different, ok? and i asked a number of different long-range gay couples who they got married, i ask them, you know, was a different the next morning? and the answer is always yes. it is a huge difference. ok, when our marriage appeared in "the new york times die as we -- the times, we heard from literally hundreds of people, playmates and schoolmates and college and friends and relatives, all
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congratulating us and happy we were married. it is the magic word. anyone who does not understand why we want it and why we need it, ok, it is magic. i guess the only other thing i would say is, today is like a spectacular event for me. a lifetime kind of event. spouse is my late right here watching and listening and would be very proud of where we have come to. thank you. >> edie, what was going through your mind? >> i felt very serious. very serious. i thought -- i am halfway deaf. i heard every word and i really paid attention. >> edie, how do you think it went in there? >> how do you think it went?
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>> i can't hear you. >> how did it go? >> i think it went great. i thought the justices were gentle, if that is the word i want. they were direct. i felt that there was no hostility, ok, or any sense of superiority. i felt very respected. and i think, i think it will be good. [laughter] >> how did you feel in there, especially about chief justice roberts, some of his questions about political power? >> the justice asked all the
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questions we thought he would ask. we had good answers. >> we had good answers. i will adopt my client's question. i think it was good. [laughter] >> ok, we are very hopeful. we are not in the business of predicting what any particular justice will do, but we are very hopeful they will affirm the decision of the courts below. >> while they were in there, did they give you a sense of optimism? >> i think all the statements stood out. as edie said, it was good. >> what did you think of the justices questioning jurisdiction? >> the court added those questions to the case. there were very serious, very technical questions. i do not think they were what you would expect. we feel confident that they will resolve on the merits of the case, and even if they do not, i think that people believe they will get their money back from
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the federal government. >> how much do you believe the house republican report sway do think think that will happen in the justice the liberation room? >> i think the reasons why this law were passed will have a lot of influence on the court. this is an incredibly unusual statute. it is not in our constitution to doma enact to. i think that will have an influence on the court. the court was skeptical to get into this case. >> i think the court realizes it has an obligation to decide the constitutionality of federal statutes and that is what it intends to do here. >> the change in views nationwide -- did you address that? why have more people come around to acceptance?
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>> edie will have to answer that. go ahead. >> i think what happened is, at some point, somebody came out and said "i am gay," and it gave more people the courage to take the step. we all really live behind masks. what happened is, as we increasingly came out, people saw that we did not have horns. people learned that, ok, we are their cousins and their friends, all of whom are coming out for the first time. and i think it just grew. we are human beings, like anybody else. and i really think that is what made the change, ok? i'm talking to you freely. i had been hiding in the closet 10 years ago. [laughter]
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>> how do you feel about being here? can you believe you're here? >> pardon me? >> how does it feel to be here? >> thrilled and exhausted and humble. very humble. great. >> [indiscernible] >> we did not memorize everything that was said, i'm sorry. >> [indiscernible] >> the basics are that doma is an extremely unusual statute. it cuts across all federal law. it affects a 1100 different federal programs from notification of the death of a spouse when someone dies -- what it means is the spouse cannot be properly notified. it means that gay married couples do not get the benefits of the family of federal leave act and they need it, and it means someone like edie has to pay an estate tax bill just by virtue of the fact that her spells happens to be gay and she -- that her spouse
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that sheo be gay and happens to be gay. that is unconstitutional, no matter what standard is applied. we hope the court will agree. >> [indiscernible] is it more a matter of how rather than if? >> marriage for gay people is a fact. is a fact in nine states already. it is likely it will be a fact in other states as time progresses. i do not think there was anything unusual. that should be the facts. nine states and the district of columbia. >> excuse me. excuse me for all the people living in the district of columbia. i'm a new yorker. i cannot help myself. >> seem to be one of the emotional parts in there. >> yes, i think the court cannot help but be affected by the way
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that this statute rides gay couples and gay people out of the federal code. it is not just one statute or program. it is a redefinition singling out couples who are already married only because they are the. i think the justices are acutely aware of that -- singling out couples who are already married only because they are gay. >> talk about the pain you are wearing. >> talk about what? >> talk about you>> talk about the pin are wearing. >> all right. in 1967, ok -- first of all, we were driving in the car, and she said, what would you do if you became engaged? and i worked together with a bunch of people that we love. i never told the truth. i never told the truth until five years ago when i finally told the truth. she said to me, what would you do though if you wanted to be engaged and you wore an engagement ring to work? what would people say? i said, they would want to know
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who is he and where is he? so, instead she gave me this pin instead of a diamond ring. ok? that is mine -- my pin. i am going to excuse myself if everybody will not be mad at me. there are a lot of people who came to see me, and i am just going to go see them. [all talking at once] >> get your name? >> i am anthony romero. the national director of the aclu. romero. national head of the aclu. fromxt, more reaction
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outside the supreme court. a decision from the court is expected in june. >> i am reverend reverend -- reverend schenck. i'm chairman of one of the largest associations of independent evangelical clergy in this country. more than 200ent and first military chaplains who carry a very grave concern that if doma should go down in a decision against the defense of marriage act by this court, that their religious freedom, their religious liberty in holding to a definition of marriage that is taught by their churches and
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aligious institutions has definition that is thousands of years old. it has been the uniform denni definition here. it is at risk. today in a very vigorous interaction reaching the attorneys and the justices, you can tell the justices were quite interested. you'll hear the arcane, legal arguments that were debated with the justices. if it appears now that doma while we stand for the defense of marriage as between one man and one woman, it is quite clear that the definition on the federal level is at great risk likely by 5-4. if that should happen, we have
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urged in our brief that this court take into consideration and explicitly guarantee the religious freedom of military chaplains, civilian chaplains who are under orders by federal authorities, as well as other clergy who are required by law to swear an oath to uphold the constitution and in this case, may in fact have the authority to solemnize marriages held in doubt. in anis a historic day argument in the court and put at risk the religious liberties of all the rice to clergy and those who are under the authority of the federal the hundredsch as
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of military chaplains in this country. ,gain, i am reverend schenck chairman of the evangelical church standing in defense of the traditional definition of marriage as between one man and one woman. evangelical church alliance headquarters is located in bradley, illinois. reverend schenck. -c-k.-e-n >> question or two.
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>> yes, of course. you said the definition is at great risk. >> oh, yes. >> it is quite clear that five of the justices are not convinced that doma has standing. we always try to remain optimistic on our side of the argument. the question put to the justices by justice kennedy puts that in doubt. but we will rise to that challenge. it will take an act of congress to guarantee the religious freedoms of military chaplains. it might take an action by this court. whatever decision they make will invite litigation. we will be back here.
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>> [indiscernible] on our side of the government, the decisions should be with the state. if the states recognize that it was clear in the argument that the federal government discriminates on that basis. for example, the states have different age requirements for marriage. a is not that they have uniformity to begin with. i will let the legal experts address some of that. i'm not sure exactly why you're asking me that question. ourre concerned about
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members. they must adhere to their own churches, which means marriages is between one man and one woman. somebody asked about our membership. we have 3000 clergy members. before you hear from the attorneys, i might add that chief justice roberts is a real question mark on this.
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our side of the argument finds that very encouraging. >> robert barnes was back inside the court today. he is joining us live from the washington post newsroom. thank you for being with us. guest: you're welcome. proplk about today about 8 what happened with robert barnes -- doma. >> we were talking about whether people have the right to get married and whether there was a constitutional right for such a couple. the argument today argued for what happens when a couple is already legal. and what would happen if states would not recognize this marriages.
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today was more of a states rights question of federalism and a little less about gay rights. >> what was the specific case that was the centerpiece of this argument today? brought byific case edith windsor who had a female partner of 44 years. they were married in canada. they lived in new york. , ms.her partner died windsor have to pay more than she wouldn taxes that not have had to pay if the federal government had recognized her as the surviving spouse. there is a key decisive vote in all of this. with questioning today, what did you learn? guest: doma is certainly
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suspect, if not doomed. recognizing marriage is something that belongs to the .tates if they decide that is a legal marriage, the federal government should accept that. let me follow up on that issue. the constitution establishes state rights. there are nine states and the district of columbia that currently allow same-sex marriage. he had the federal issue when it comes to social security benefits, income taxes, and other issues financially that come up to the federal government. guest: right. that seem to bother justice kennedy. he noticed that there are more than 1100 references to marital
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status in the federal code and laws and regulations. as he said, it is inclined in the daily lives of the citizens. go as far towould not have the federal law touch all of those marriages. >> the chief justice made a reference to president barack obama and the doma act. can you explain that exchange? guest: he talked about this unusual case that came to the court. the president and the attorney general decided a couple of years ago that they thought doma was unconstitutional. for the very reasons that are being argued at the supreme court now. it creates two classes of citizens. the federal benefits only helps one. isbelieve this law
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constitutional, but we will continue to -- unconstitutional, but we will continue to enforce and hopes it gets to the supreme court for a final determination of whether or not it is unconstitutional or not. if the president thought the law was unconstitutional, he wondered why he did not have to "courage or conviction stop enforcing the law" which might have made it easier getting this case to the court. >> outside the u.s. supreme court, what was it like when you arrived this morning? give us a sense what it was like inside the court today. compared to what you heard inside yesterday. guest: another busy day. a lot of protesters. lots more gay-rights protesters than the defending the traditional marriage as people
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would call it. andde another packed house today's humans were much longer. they have the restaurant of whether or not the courts should even be hearing the case. it took longer. ms. windsor was in the second row watching things. there was a steady stream of supporters who came over to say hello to her, including nancy pelosi. law is being defended is something called a bipartisan legal advisory committee, which is five house members made up of republicans and democrats. bowling the republicans wanted to be involved in this lawsuit -- only the republicans wanted to be involved in this lawsuit, but there are some of them. nancy pelosi did not support the
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defense of doma. you begin your story that is available online and washington post.com. us additionality of the defense of marriage act. how the justices will ultimately decide -- take a stab at that? guest: i think you heard from the four liberal justices for a ,trong defense of gay rights justice kagan in particular. wastalked about how the law not a way to call timeout with debates going on about marriage , but really an effort to discriminate against same-sex couples. she read from a house report
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that talked about the moral disapproval of homosexuality. members ofe liberal the court very skeptical of this law on those grounds. then you had testis kennedy raising a number of questions. kennedy -- just thiice raising a number of questions. he seems to question whether this is something that belongs to the states. >> what happens next? how do the justices decide on these two cases? guest: the process is that they will meet on friday and talk about them. they were probably take some preliminary votes and figure out where they come down on it. they will assign depending on who is in the majority, he will assign someone to write the opinion.
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the chief justice will decide who will write it. these can be pretty tricky. both questions contained some sort of threshold, legal issues about whether the court should even be hearing them. i would imagine that will take some time for the justices to sort out. to findwe should expect the answer to these questions publicly around the last week of june and that which is when the court issues its work for the term. was inside thes court yesterday for proposition 8 and today for the defense of marriage act. thank you for being with us. guest: my pleasure. [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] >> on the next "washington ushaar from thera national journal. from the apold
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american association of nurse practitioners. phonealso take your calls, e-mails, and to eat. "washington journal" each morning at 7 a.m. eastern on c- span. when they first moved here, he spent a lot of time at home. the people who visited prior to the war of 1812 would have largely been friends and relations from the area. hostess. very nice very cordial and welcoming. after the battle of new orleans , they had lots of company. or eveningny parties dinners.
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they were entertaining people who are used to find things in the city. they appreciated those findings as well. she had very nice things. as as a dual image of her frumpy, country lady. she wasn't that exactly. it was more about her comfort in the big city that it was about her actual appearance. >> our conversation with rachel jackson isa now available on our website, c- span.org/firstladies. talked abouteys the same-sex marriage cases before the supreme court this week. changinge about the attitude toward gay marriage. this event was held at the cato institute. it is an hour and 10 minutes.
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>> welcome to the cato institute. welcome to those who are watching on c-span 2 and on cato.org. how is my reception? can you hear me? ok. we are delighted to bring together an all-star panel to talk about the state of gay marriage in the supreme court and in american society. our panelists are fresh from hearing the second day of the supreme court oral arguments. it has been kind of dramatic. i heard the audio and belies there were extremely left-wing and right-wing ideas.
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and that is just justice kennedy. [laughter] we will be starting out with a discussion on how things went this morning and yesterday at the court of stop we will move into a wider discussion on what this all means for american politics and culture. we are being join today by three wonderful panelists. iro fromr right is shap the cato institute. he directs one of our programs and submitted a wonderful brief to the court. on the other side is ken. best known for being the chairman of the republican national committee and running george w. bush reelection
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campaign. he is known as an outspoken and eloquent advocate of same-sex marriage. -- only in that sense -- i will not call you a token democrat. evan -- >> i'm a token straight guy here. [laughter] on thats been working day movement for a long time -- gay movement for a long time. advance themr more than anyone would have expected. he is the founder and president of freedom to marry. we will do it as a general discussion. i will throw some questions out there.
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you have all got your cell phones. evan has to leave a little early. .e will respect that if you are saving up questions, there'll be time for questions afterward. if there is a question you want wave emphatically. >> the jurisdictional arguments made my head hurt. yesterday was pretty understandable. today we had these very interesting and fascinating issues. court tookthis room
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this case at the behest of the u.s. government, which agrees with that court below. it is enforcing doma while not defending it in court. is that proper? one person was there to argue and representing the house of representatives. thatwkwardly named blag takes 3-2 votes on every action in the court.s does the house of representatives have standing to defend the law given that the u.s. government is not? there is a lot of discussion. everyone had to go home and renewead that. it seemed like doma section three is not long for this world.
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the so-called liberal justices would strike it down on equal protection grounds. . lot of discussion justice kennedy spent all his time using both jurisdictional and substantially on what he to strike down doma section three on federalism grounds. no controlling opinion. ?> evan thatt me start by saying we say in front of every egg argument that you cannot judge an argument. the questions and answers were fast and furious on both questions.
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say and thenwe all everyone starts to tell you what they think will happen. i want to underscore that the questions and issues and constellations and crankiness on the parts of some justices would you can't attribute -- can att ribute them to not wanted do something but feel like they should really makes this hard to say on the basis of the two arguments of what will happen. you need to take every prediction you hear and read and tweet very skeptically. the justices will go back and delve through a mountain of briefs in both cases. it is a huge amount of evidence and arguments. be circulating opinions. that will be two challenges that some may have and they will try to write it in a limited direction in this way or that way and relays maybe it is not
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right the way they are trying to write it. it is an important reason for caution in all of the predictions, including mine that you will hear. having said that, there are two things that we know very clearly. one thing that we know is that while the justices are doing their homework and going through the process that was described, the best single way we can maximize winning the freedom to marry and even getting the justices to do the right thing as a deliberate now in the court is to do what we have been doing, which is to continue winning more states and winning over more hearts and minds. there are as many as four states that are considering freedom to marry legislation and could pass those bills into law before the court hands down a ruling likely at the end of
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june. the biggest thing that we can do to maximize the chances of winning are to pass those marriage bills and continue growing extraordinary who's who of america that have stepped up over the last many weeks and months supporting the freedom to marry, it including the amicus .rief all of that is what creates the climate and the momentum that encourages the justices to find the right constitutional legal roadmap. the other thing we know is that clearly the freedom to marry has the momentum and has a winning strategy. the strategy that has brought us to this moment of hope is the strategy that will bring us the freedom to marry nationwide, whether in june or in the round of work in the court as soon as possible. one of the questions in exchanges that came up yesterday was to point out that
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the supreme court got into --ial marriage wrong interracial marriage wrong before it got it right. loving versus virginia, which the court struck down race restriction on marriage. the court got it wrong. whatever the court does in june, we have a winning strategy if we keep doing the work of sto. i think all of the commentators yesterday would say that it was choppy and lively and engaging. immediate reaction today was ery much sort of what ilya said. theink it was clear that chances of the courts striking down the defense of marriage act are far greater than not striking it down. i think equal protection as well as federalism concerns are very
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much in play. what was striking was that no one in court offered a reason to justify the denial of the freedom to marry or the defense of marriage act. with opponents were pushing was don't go fast. don't do it now. take your time. let's have a positivause moment. that wasg one thing talked about was uniformity. he never mentioned anything beyond that. the federal interest will be different than the state interest. yesterday was about child rearing and social moral development and belief hours to the state. this is different. he kept pounding that uniformity. >> the reason why i say it the way i say it is that you are correct.
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let aloneual policy the constitutional specificity about gay people. >> i would make two points and i will not reiterate. evan may 2 points that are interesting. two points that are interesting. what has galvanized the public are the stories. the story of edie windsor is a compelling story. she found a partner and spent her life with her partner and at the end of a long life of commitment and of love and support, is faced with hundreds of thousands of dollars in taxes. then you look at the plaintiffs
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perrye prop 8 case, the case. they are trying to do the right thing and they are punished for it. , theseories, examples aren't concepts, these are real people making a gigantic reference. e ross sectionake of society. businessic meters, leaders, leaders of excellent think tanks, all making the case from there's perspective and why it makes sense. big change does not happen in a single direction. it happens when suddenly all across society people speak out from there is practice and explain why.
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often political debates come down to a debate which and what i would describe as substance and process. important questions are being raised. they ought to be discussed. we ought to take very seriously and respond and listen to. if you listen not only to the lawyers in court, but the advocate speaking publicly on tv and other places, what is interesting is that a or five years ago, a lot of what it would describe as subsistent argument is on one side, but over half of them are on it will marriage equality. and freedomairness and better for kids. one side says process. usually the former is a lot more compelling to judges and to the public.
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those are slight additions. or to challenge one of your interpretations. you mentioned -- i would like to challenge one of your interpretations. it was a case of mclachlan versus florida. that case,ought up three years before loving versus interracial cohabitation, he seemed to me that she was praising the court for having taken off no more than it could chew other than admitting it made a mistake. she was praising it. she wrote about her feelings. there is at time,
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huge movement in american public opinion. it made it more acceptable later than before. >> you are partly right. you're absolutely right about the case. the case she was referencing with mclachlan regarding cohabitation rather than marriage, issues making the point you were saying that the court in that taste ruled on what was before it, which was cohabitation, rather than going for the to address the not directly presented question of marriage. you are correct about that. the case i am referring to is named versus name. it is on the same piece. your point is correct. in terms of your larger point, however, what the important point is that the question of the freedom to marry is clearly
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invented in the pe -- prevented in the perry case. with the rules that regard to or rules to california, that was very much kicked around in court yesterday. we will see what the court chooses to do. let me say one other thing -- justice ginsburg has pointed out that her comments from 30 some years ago -- i can't remember now with regards to roe v. wade has been taken a little bit out of context. it is not that the court should not rule on what is in front of it, it is that the court should not feel necessarily compelled to go beyond what is in front of it to settle broader things. >> two other points. by theving was affirmed court, over 60% of people were
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against biracial marriage. withthis decision was made roe v. wade, 52% believed -- that number has basically not change. look at the data when it comes to support for marriage equality today, not only do you have a majority in support of it, but in fact in those states where marriage was enacted by courts -- massachusetts, and etiquette the- connecticut -- republican and democratic candidates supported it. the evidence is that in fact doesissues, the court preclude democratic discussion and make it harder to develop a consensus on an issue. in this issue, that has not been the case.
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we have had 10 years of very active decisions. support has continued to increase. point.ree with his when the supreme court struck down race restrictions and loving, i do not think that there was a tremendous change. --e polls showed 60% of post opposed it, interracial marriage. >> was a nine or 16 states prohibited it? something like that question ?ark > -- something like that >> i'm talking about public opinion. i do not think there are that many people today who inks the court should have taken a boat and upheld bans on interracial marriage. the whole reason we have a constitution in court is that some things are not told and
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some things are not put up to a vote. there are state bars. ,n particular, freedom to marry is a freedom that believes to the individuals. it is about pursuing happiness and exercising liberty. that is why we have courts. they should not make all policy decisions, but there are certain decisions that are reserved to the individuals and protected by the courts and the constitution. as far as the state question, you are right. to set to look at how the stage for the supreme court to do the right thing is an interplay between two critical masses. one is a critical mass of public support and the momentum. a critical mass of states. what is happening in the states? look at where we were in loving. we are ahead now in terms of public opinion and where we were and not as far as we were
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with regard to states to stop the freedom to marry strategy will win if we continue the interplay of those two critical masses. >> i think you brought out very well the tension between public , yet weand the courts also have to keep it as a matter of principle. , as i understand it 's argument,rning justice kennedy was interested in the federalism. this is something that we have been obsessed with. haveber of legal scholars signed a brief arguing that doma flunks on federalism. take a veryers
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different view. i will ask you about that in a minute. to make clear up what the stakes are on this, if the brief were followed and it were decided that the federal government had , a number of it other interesting teams would happen. powerfulld be a new constitutional argument for taking the federal government out of other areas. there has been some panicky reactions are ready. -- already. there also might be consequences in saying that the future federal government cannot -- rict the rights
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am i right? -- thes be clear federalism concerns that are there are also very deeply intertwined with the protections of dynamics. you cannot treat each end of the constitution as separate, particularly when a law is targeting law that has been inflicted by the federal government. in this case, by the act of congress in 1996. i am going to sign on to some broad mandate to sweep away federal powers in the name of federalism, but i think in this particular case, it is clear -- and i think it is clear from some of the questions on where they will go with this is not so
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hasr -- justice kennedy settled on federalism -- i do not think it works that way. several justices pointed out in various ways was that congress took an unprecedented, radical step of treating itself into a domain that everyone agrees that wherever you are on the spectrum, it is constitutionally mostly left to the states and did so in a sweeping way and target it when people to impose a particular policy outcome. that is an indictment of the two. ement ofis an intertwined an the two. as justice ginsburg pointed out, this was not just congress -- this isdo not
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congress saying for all the 1100 plus federal protections and responsibilities and incidence of the freedom to marry, we will have two classes of marriage. there was marriage and skim milk marriage. that is a problem whether you look at it under the federalism lens or the protection lines. >> maybe they're being too broad. even more fundamentally, the role of government and marriage at any level. why should we have to get a license from the government, a piece of paper, legal recognition? the only reason we are arguing is because government is involved. of common law and have whatever church or what is the word for wiccans? covens.
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that is fine. once the government gets involved, there are other issues. more specifically in the federalism issue, i had a debate on thehn adler, afrai friend role of federalism on prop 8. i agree mostly with what evan said. as is not at issue of whether the federal government overstepped its bounds. this is the issue of whether in prop 8 case, a state having this law, this marriage law, can lawfully discriminate or treat people differently he said on sexual orientation. it is not a slamdunk case. that is what the issue is. the issue is not whether the federal court art be the ones making that decision or the executive. the ratification of the 14th amendment, if you
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have a state violation of an individual's rights on these protection grounds, i buy that much more strongly, then it is for the federal court to decide that issue. if the starts are not violating any laws, fine. if they are, as i have argued in my brief, then it has to make that ruling. on the doma, that debate has also played out. argued thatow has of course the federal government has the power to define the term it uses in its statute. justice alito said, what if they did not use the word marriage? what if they used a mistake couples that are certified or something like that? again you get down to the basic issues. -- what if they used domestic couples that are certified or something like that? again you get down to the basic issues.
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that federalism in great has to collapse. justice kennedy may not agree. seemednnedy and roberts to be very attracted to this federalism argument. i do not buy the federalism argument. i'm not sure. i like the equal protection argument. credentialegal or we could have this sort of way station on the way to an eventual, political resolution >> we always wonder whether amicus briefs are having an effect. one of them that seems to have caught justice kennedy's eye
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is by professors leon katz and harvey mansfield, saying that social science is newer than cell phones and the internet and -- they haveholars points they want to make. their research is sometimes not very rigorous. justice kennedy was swayed, it seemed,. what would you have said? >> to me, that was my biggest disappointment. there is an extraordinary and one-sided record in part based on the important trial that occurred in which both sides had any opportunity they wanted to bring witnesses, cross examine, call evidence, and at the end of the trial it was clear that the
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social science data, the evidence, the witness testimony in favor of how gay parents are fit and loving and doing well and their kids are doing well and there is absolutely nothing to contradict that from any reputable source, that was crystal clear at the trial and was amplified, again, by an extraordinary array of friend of the court briefs in which every leading public health and child welfare authority in this country has weighed in on the side of the freedom to marriage for loving and committed couples. it is important that the justices, including justice kennedy, be reminded and pointed to these briefs as evidence, including the trial itself, which was echoed by the way the trial 14 years earlier in
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hawaii where the same questions were first litigated and the same findings in favor of gay parents and kids being raised by gay parents absent evidence from the other side were made. so the good news here is that contrary to the drama we all feel about it, it is not the most important influence on how justices rule. they will go back and look at the record. ona number of the avatars facebook. >> that will do it. they will look at friend of the court briefs. they will see that these are not uncharted waters, and not an open question, not something people need to worry about. gay parents are doing great, our kids are doing great. it is absolutely clear that even if you did not think that was true the best way to protect kids is to provide their families with support and structure and dignity that comes with marriage rather than pop -- rather than punish kids for having the wrong kind of marriage -- parents by
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withholding marriage. >> let me ask another question about if you are there. seemed,roberts was, it swayed by one of the arguments that was offered which was that some of these documents were targeting politically powerless minorities who had no way of mustering support. would you say that if there are such minorities they are not in front of us because look at the stampede to endorse gay marriage. this is not a politically powerless minority. somell, this raises problems in our jurisprudence more broadly. ever since we started bifurcating our rights -- infamous footnote four, some rights are more equal than others, the way the supreme
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court has distinguish which rights apply and which groups are protected is by applying different levels of scrutiny and different criteria to different so-called classes. i would rather answer the question of whether gays or people who support gay rights are a politically powerful or not politically powerful group for legal purposes. i think in the late sense of the word i think they are. how it is interpreted legally, the tests change and the scrutiny rubric often depends on what the end objective of the justice who implies them means. of the debate about whether we apply rational basis we probably will not go into much of that. i certainly hope the court does not go into that.
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>> i would put it a little differently. i do not think what the court is doing properly in those analyses is talking about which groups are protected or who has more rights. what the court is probably doing is saying there are certain classifications the government draws that are more suspicious. some are very suspicious. as aovernment uses race criterion. that is sus pectin requires a presumption -- suspect and requires a presumption. the court has identified other suspicious qualifications such as sex, religion, ethnicity. that sexual is orientation likewise should be viewed with suspicion. there are factors the court has identified, factors the court should look to in determining whether there is a suspiciousness to a government classification. those factors include things like a history of discrimination.
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in this case the degree of political powerlessness. nobody thinks that is an absolute. obviously we have an african- american president, we have many african-americans in congress. we have latinos emerging. is does that mean that race not a suspicious classification when the government uses it for a criterion? most of us would say, ups -- of course race is suspicious. women are more than half of the voters. does that mean, however, the classifications based on sex are not suspicious? we would say no. as the head of freedom to marry, i want to see us have more power. i want to see us dismantling that history of discrimination. the fact that gay people have been targeted by ballot measures more than any other group in american history and endure to this day explicit anti-gay discrimination in 30
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states and the absence of protection at the federal level. yes, we are growing in terms of our ability to enter the political process and engage and persuade, but does that mean gay people are not still disadvantaged in the political system and political process with the defense of marriage act and the denial of the freedom to marry? of course it does. that is why there should be a presumption of the -- unconstitutionality the court ought to apply. >> if we can get back to the legal issues -- i promised half the program would be on politics and culture. let me switch to that. we have all follow public opinion polls, some more closely than others. one of them fascinated me the other day. it purported to show, and maybe i was not reading it right, that although there has been a tremendous movement on this, if you step back and average
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together the polls you find it is actually a movement of about 1.5% a year, which seems to depend on whether it is in the the supreme in court or not, whether allen to generous is on the front page of "time" or not. if this is correct? -- is this correct? if it is, why are we talking about this when -- >> there was a very interesting analysis by a republican pollster who was president bush's polling and does polling for senator mcconnell and others. he looked at all the public polls from basically 1993 forward, which is when they really began measuring public attitudes on marriage. from 1993 to 2009 there was a one percent increase a year, a lot of which could be attributed to demographic change.
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from 2010, 2011, 2012, 5% a year. he believes, and i think he is right, is attributed to all the stuff people are doing. the truth is in my judgment what is happening here in washington is very important. and around the country is very important. but the most important thing is the power of people to not aize that it is concept. these cases highlight it is not a concept. edy windsor is being really published -- punished. this is about whether she has to pay hundreds of thousands of dollars and potentially lose her home. is notris and sandy face a concept. this is whether they can make medical decisions for their children. in only 20 states if one of them is in the hospital can the other make a decision about their care. that is a real deal. tonot only people have come
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understand these are real issues and real injustices, they have come to understand they are happening to their, their children, their friends, their relatives. what this conversation has done, i think, is a whole lot more folks have come out and explained. no longer are you thinking about this in terms of -- it used to be a concept about those people. now it is a real thing about my people. when you think about it that way, it has a huge impact. that has also made a difference. look at a couple recent data points in polling. the "washington post" poll came out this week. 54% of evangelical millennial's, millennial voters, essentially voters under 30, support freedom of marriage. 80% of voters overall under 30 support freedom to marry. , includingblicans independent leaning republicans, support the freedom to marry.
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they also asked the question of have you changed your opinion. 40% of voters changed their opinion. 12% in favor, two percent against. for every one voter who has to be against the right to marry, nine have changed to be in favor. those are big changes this conversation is helping to inform. >> real quick on the polling, the other thing to note is that whatever demographic you are looking at, whether it is evangelicals tom a blacks, jews , -- evangelicals, blacks, jews, the younger you go there is more support. a realrtain -- to extent opposition is dying off. unfortunately, the one demographic, a bit of a glib comment, that is against is over 65. and the average age of the supreme court is 67.9. >> i completely agree with the
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point. i want_a piece of that as part of the larger whole. what has happened over the last couple years as part of this swelling, accelerating momentum and people changing their hearts and minds in greater numbers, more people talking in broader numbers, people like ken mehlman and ted olson, whose biggest contribution to this cause was his speaking out as a pillar of the conservative establishment and giving permission to others that respect him to think and new -- anew. we have seen more of that thanks to people across the spectrum and the general public. that has been part of this dynamic we have seen accelerating over the last few months and years. ken.et me ask can
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for all the demographic groups that have moved from being negative to being positive, one that is still very negative is republican primary voters. when a republican would be elected official talks to about this, how do you suggest they get from point a to point b? >> first of all, i do not necessarily agree with that. it depends on the primary, depends on the jurisdiction we are talking about. to me, i think the questions are theuple -- where voters you are speaking to standing on the issue? the second thing, how much they care about it. where is the energy with respect to the issue? what has changed also in the last several years is the energy is on behalf of advocating for not advocating against. you can be against something and not care that much. that issue, then, is an issue that a candidate needs to think
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about but less important than if the voters care a lot. voters care a lot more about being for it than being against it. , do votersr two is feel you have made conservative arguments on behalf of these issues? i have done a lot of polling on this question. 79% of republicans believe that a same gender couple ought to be able to visit their spouse in the hospital. 57% believe that if one dies the other should not lose their property. 51% believe federal health benefits to be available. more than seven in 10 republicans believe in the employment nondiscrimination act. the "republican voter" is not what the republican voter is perceived to be if you look at the data. in the last year and a half we had an effort called project right side. , 8000led 16,000 americans
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of which are center or center- right leaning. we found again and again and again strong support for not only these rights associated with marriage but also, when you associate it with conservative leaders the support is even higher. when you explain to people what dick cheney said, that freedom means freedom for every one, the level of republican support is overwhelming. when you explain that a safe schools bill like chris christie's includes gay and lesbian children, overwhelming republican support. a lot of this is the context in which you frame it. the number of republican elected officials in the last two years who have voted for marriage has doubled. there are 203 republicans nationally at state -- and stay white to have voted for or, for in the past year and a half. three lost because of it. there is not a single issue i can think of where doing the right thing and one percent
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loses, that is a pretty amazing record. it is certainly not true on almost any issue i can think of. to me, when you look at all the data it says that in fact the republican electorate is maybe not were some people perceive it to be. like to move the questions from the audience. we will be taking questions from the audience now. a few ground rules. remember we have an audience watching remotely. when i call on you freeze wait to be called on. after i call on you, please wait for a microphone. a helpful person will bring you a microphone. when you ask a question, please announce your name and affiliation so that we know a bit about you. in the second row, in the sweater. yes. my question is, everybody
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talks about gay marriage and everything but i think that another thing that has been talked very little about is equal protection, discrimination against gay people. in certain communities they still fire people if they are gay or do not like their lifestyle. in terms of equal protection, i think that is a very serious thing to do even if you talk about marriage. >> any reactions? >> i do not like discrimination laws in general. private organizations should be able to hire and fire for whatever reason or no reason that they want. i am not sure the solution is to expand the number of lawsuits that are going to be filed on all these areas on what private organizations do. but these issues we debated today about what government -- it has to treat all
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citizens equally. point.sagree with that faceshink laws that say of public accommodation, places open to the public, organizations, companies, businesses, that welcome the public in, can properly be prevented from discriminating on sexual orientation, race, etc. there is a long-standing tradition of upholding those laws. but i do agree that what we are talking about here with the freedom to marry -- even worse it is the government that is the discriminator, the government that is denying marriage licenses. in my view all discrimination is bad, but it is most intolerable when it is by the government against any group of americans. my favoriteing -- moment from the argument yesterday was 11 justice sotomayor asked the opposing
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side, the anti-gay side, apart from the context of marriage for a moment can you think of any other context, in any other context, employment, other kinds of protections, housing, is there any rational sufficient good reason for discriminating against lesbians and gay men? even the opponents could not say. he said, i do not think so. he conceded there is no good reason for discriminating against gay people. , is extremely powerful and shows how far we have come. now we need to turn it into law. >> that was extremely good lawyering on her part. you do not stop being a lawyer just because you are a judge. it surprises me this battle is taking place on the marriage hill rather than the adoption hill. there are more states that allow gay adoption than gay marriage. to prominent interest is have a union of a man and a woman to raise children and the interest is regulating procreation, and only with a
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heterosexual couple can you have accidental pregnancies, etc.. shouldn't the focus be on a regular thing child lock? >> in western europe often adopted the opposite set of policies. legalizing gay marriage but making it quite difficult for gays to become parents. i was asked the other day about this. one reason may be the pool of adoptable children is low in europe and much higher here. another is that europe has a atonger aggressive tradition children come up with the state, that thankfully we have avoided having in the united states of america. further questions -- second row on my left. for the pakistani [ indiscernible] my question is, how can you
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separate the gay marriage issue from the morality of our christian brother and sister? if you allow this, what will stop you from marrying with your brother, with your sister? i am a muslimng, and during september 11 i used after september 11 they think every muslim in this country has a bomb in his pocket. there are one million muslims in this country. christian residents think everybody is a terrorist. similarly, they think gays are very powerful, very organized, and are going to take over this country and they will have their morale the pushed on the country. >> any response? >> we have a place called
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crucible -- on new york avenue. >> you have asked a question. >> what is at issue before the court is civil marriage. a brief that 135 republican and conservative officials signed. we made it clear we believe it is correct policy, that the establishment policy protects a church or synagogue from performing a star money they do not want to perform. the reality is today the faith there are some religious organizations and faith organizations, synagogues and churches, who believe they ought to marry members of the same gender, and other should not. to me it is wrong of the government to second-guess their decision. they ought to make their decision and the government will respect that decision. the issue here is civil marriage, and that to me, it is
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interesting, i have noticed in a number polls a higher percentage of people who think that there is a constitutional support marry than to marriage. why is that it seems counterintuitive. it seems weird if you think about it. the constitution is higher. here is why. there is a depth of insight you have to consider there. what they're saying is i do not personally support it but the law ought to treat people who pay the same taxes, who served in the same military, who put their lives on the same way, the same. that is what we are are talking about. civil marriage. whatever organization anyone is part of, they have a right to do it they want. >> i agree. one other thing you had in your question -- the question that is always thrown out about the specter of polygamy and all these other kinds of things. whenever people bring that up it is almost always an indication that they do not have a good reason for why loving and committed gay couples should be excluded from
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marriage so they try to change the subject and hope you will spend the rest of your time talking about polygamy or whatever. but the really important point to understand is that gay people are not saying, let's have no rules let's do anything and anybody can do anything. they are saying let us have what you have. just as you have the freedom to marry the person who is precious to you, whom you are building a life with, so should we. churches, religions, synagogues, temples, mosques -- they are free to do what they want to do. they should not be dictating to the government who gets that marriage license and excluding gay people from this opportunity to take that commitment in law to match the commitment in life that they are making. >> in some ways this is actually a tremendous success for an tribute to the argument that opponents of a social conservative worldview have made the past several years. there was a debate in this
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1970s, in the 1960s and is marriage a good thing? is a good for people to make a lifelong commitment to somebody else? that was the real thing. what this is about is proponents of the traditional way of saying -- thinking are right and we should not take a group of people and exclude them from that traditional approach. said heandrew cameron supports the freedom to marry because despite being a conservative -- i think that is absolutely true. i think it is true from a social conservative perspective. >> i think this again illustrates the danger and the problem with the government intruding its tentacles into more and more spheres of life. if health care were not nationalized we would not talking about contraceptive mandates. if the government did not have such a heavy-handed and other regulation we would not be talking about, should catholic charities have the right to do adoptions and refrain from conducting them for gay couples?
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i am for all sorts of religious liberty. the issue here is -- i do not want to repeat what was said, but civil marriage as recognized by the government, the best solution would be for the government to get out. but as far as questions of morality go, living together, getting married, the marriage license is a different issue than if you disagree about the morality of gay sex. that is a whole different set of cases. >> quite a long time ago western societies separated birth from christening and death certificates from last rights and coming-of-age from equivalents like bar mitzvah. 10 the this is a -- to me this is a recognition that marriage is separable. one question -- there was one
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of her here. right by the wall. i am john murdoch. i am an attorney and volunteered on the 2004 bush campaign. i partly did that because of my opposition to judicial activism. am baffled by your definition of judicial activism now. this seems to be the epitome of that, at least in the proposition eight case where you were overturning a democratic election based on the evolving standards of vague terms such as equal protection. >> it is a good question and one we talked a lot about in our brief and over the years. what i would say to you is i also do not like when courts step in and substitute their views and there will for that that of the people either directly through a referendum
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or alternatively through a legislature. i do think that as somebody who believes not simply in judicial restraint but in a limited government broadly it is the province of courts and it is appropriate for courts to step right is fundamental violated. a lot of people were very upset when the court throughout the city of chicago and the city of washington's and on people having and possessing a firearm. i thought it was the right decision. when theo pleased court throughout a number of the elements of the campaign reform laws. what was right about that is they were saying, even though they had been democratically enacted they violated the fundamental law. marriage has been held to be a fundamental right 14 times since the 1880s. if you are a prisoner according to the supreme court your right to speech can be taken away, you're right to vote can be taken away, but you're right to select a spouse cannot be taken away unless there is an incredibly good reason.
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what we concluded is that proposition 8 does not fit that good reason. well it is an extraordinary measure, it is appropriate for the court to step in. >> that is exactly right. i was an intern on the 2004 campaign policy staff. a bit of a reunion for us, i guess. judicial activism typically means that the speaker disagrees with the opinion he is talking about tom a an empty vessel filled with whatever the speaker wants to talk about. i do not think courts should be activist and they should not be pacifist. i disagree with chief justice roberts turning a individual mandate into a tax rather than doing his job and striking down a law he thought would have been unconstitutional. not enforcing property rights. so the debate should not be about whether courts are restrained, upholding, striking down, overturning the popular will of the people. it is whether they are interpreting the constitution correctly. people in good faith can
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disagree about that. that is what the argument is about. either california is violating individual rights or it is not. but it is the proper role of the court to say so. have tovery sorry to leave early, but thank you very much. [applause] >> second row, you had your hand up for well. -- four a while. >> my name is greg olson. i have a question for mr. schapiro. youa little bit baffled by seeming to be against the government issuing marriage licenses. do i read into that that you do not think that the government has any role at all in any marriage
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regulations at all? for example, inheritance or parental responsibilities to children? , no regulation responsibility? >> of course there has to be family law. people live. they are not individualists communes. families. there are issues with custody, with with paternity, all sorts of things, inheritance. there are issues that arise. but people living together and producing children are dated the arrival of civil marriage in human history. lawe are ways of the common or even codified law in terms of inheritance and bankruptcy, whatever else, that can take that -- that ought to exist. and contract law. how most of these things really ought to be handled is you sign a contract with whoever you want to marry spelling out what
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the right saarc. -- rights are. for 90% of people that would be a simple boilerplate contract. there is room for the operation of law but that is different from saying that the sovereign has an interest in regulating who you can marry or who can marry. roger? >> with the cato institute. -- my question is in response to the first question asked about the broader indications of this issue and discrimination more broadly. the question, distinguishing the private from the public. one way that comes up is in the effort by private parties who have scruples against gay marriage about participating in
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them. we have a case in new mexico right now of the photographer who declined to participate in a gay marriage and is being prosecuted for it. it seems to me this is the kind of overreach that could put something of a brake on the momentum we have now. it is the kind of thing we need to be careful about, not too expanded so far that there may be people like this who for whatever reason may not want to and yet in overreach of discrimination law can give us something of a backlash. would you care to answer? >> sure. that is a very valid concern. if you think about it, the truth is that we are debating -- what we are debating does not affect that lawsuit. the reality is that there are separate laws in states, and these are worthy of important debate and discussion, which define when you are allowed to
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say no to performing an event or a ceremony in this case. essentially, anti- discrimination laws are entirely separate laws. if you look at whether it happens through judicial process like massachusetts or connecticut, or alternately through the legislative process or to the referendum process, in every one of those cases the effect of civil marriage does not in any way change whether the photographer could be sued or could not be sued. finally, whatever we do legally there will always be people who -- we live in a litigious society and people will always bring lawsuits if they are unhappy about something. that absolutely excessive litigiousness should perhaps -- should absolutely be discouraged. but we ought to be thinking about the context in which it comes up. a debate about civil marriage really does not affect that particular question as evidenced by where it happened. they areld add that briefipating in a amicus
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on behalf of that photographer. >> we are waiting for an appeal. >> for those who are interested i have written at some length about how nearly all the horror stories have come from states that did not have same-sex marriage laws. the problem, as we libertarians know well, is the overweening tendency of the law. yes -- fourth row. to brief questions. the first, in certain states with common-law marriage does the state have the right to declare two people, whether straight or gay, married who have never chosen to be married? my second question, with the rise of states that have civil unions is there a constitutional right by a state to create a condition that is not marriage for any reason, or is this simply by creating civil unions is that in itself
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discriminatory? states do have a recognized common-law marriage. if you live together long enough and certain other criteria, produce children, hold yourself out as if you were a married couple, these sorts of things, you can be treated as common-law married. i do not think i would want that to happen if there is no consent to wanting to be treated as married. this is another complication from having a civil marriage regime and having some institution in the midst as well. a lot of these issues can be taken care of by common-law. this came up today. chief justice roberts asked, does the federal law, how do you treat states that have common- law marriage but some of them might allow common-law gay marriage, others do not? it really, locate the jurisdictional and federalism
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issues that abound. as far as civil unions are concerned, that is an issue in the proposition 8 case. i doubt the court will rule this way given how hostile all the justices seem to be to solicitor general -- the solicitor general's half loaf solution that part of why it has to go down as california has civil unions that do not differ in any way other than the name from marriages. there are eight or nine states in that boat. -- if you have a rule saying if you grant all the rights except the name then that has no rational basis. that disincentive ices other states from giving some rights who do not want to go the whole hog and give marriage. contract should be based and common-law-based. i do not think this civil union means that you have to have arriage is ultimately
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tenable position for constitutional law. >> i have to question -- it brings in something that is not enough appreciated about the history of the marriage law. far from being sometime this thing handed down by our ancestors, it has been in continuous flux. alimony is a quasi-marital concept that has turned up in our own lifetime. in general it has never been static. there is nothing to go back to in that sense. there was a question in the front. getting married is always -- ting and fun, and we all >> is it good? i'm doing it in june. >> i understand the benefits you are looking for with the insurance and the health care and being able to visit another partner the hospital and that type of stuff. but when it does not work out, maybe the next day you work out
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-- wake up -- will you have to go through the same divorce situation we are? are the laws going to work equally in that situation? >> there was a cover story in "new york" magazine -- welcome to gay divorce. the quality of unhappiness. of unhappiness. thet of people favored marriage for that very reason. they figured, why let us have all the misery? takes seriousness, if one the sweet one must take the bitter. logically one cannot ask of a commitment and then somehow escaped through some sort of parachute the consequence of a failed commitment. .o this has already happened law nerds will love the fantastic competitions when a couple has changed states and
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finds the new state will not even recognize them as married and after divorce. >> is there a court in record -- in texas that recognizes gay divorce but not marriage? >> a few nonna gay marriage states have come out both ways. it would make a wonderful case to what is more punitive, making them stay with each other when they do not love each other or creating a separate divorce capital -- category because you deserve that right. the gentleman in the fourth row. rick rosendahl. this is a question that relates back to an earlier question. at least to my years the most heated moment in yesterday's argument was when justice scalia asked ted, when the homosexual couples
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from marriage became unconstitutional. olson was extremely combative, unusually so. hownd, he did talk about our view of the constitution's applicability changes and grows. when we increase our understanding of sexual orientation. in any case, do any of you think scalia landed a real blow there or did he just -- was he just being cranky and demonstrated that perhaps it is not so much to me in a nest -- dominion askeist> ? >> i blogged about this. scalia was getting at one of these evolving standards of decency that the living constitution -- when was this? do you really mean that the founders of this country or even the ratifiers working the amendment had in mind gay marriage? that is not the right way to
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frame the question. i think ted olson did not answer it very well. he talked about, it was when we began to accept gays into our culture, new understandings of equality. i do not think that is right. that sort of plays into the wassite trap that scalia laying. i think the answer is, 1868, when the 14th amendment was ratified. not because i have proof or think that the ratifiers of that amendment had in mind gay marriage or any aspect of gay rights, but you look at if you are an originalist, we are arguing the right to equality under the law protected by the .4th amendment what is the meaning of equal protection under the law? look at that, and either there onceright to gay marriage the government gets in with the 14th amendment, or there is still not that right.
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those are the only two possible answers. i link to other possible discussions of this. josh blackman has a blog about this. my cocounsel on our brief also. >> you make an interesting point. here is what matters. whether it happened in 1868 or happened when we came to understand the sexual orientation was not something people choose, today it is unconstitutional. in the that is the---to me that is the important answer. there is a fundamental right being taken away from individuals based on an arbitrary characteristic, and by arbitrary i mean when they did not choose, and they are denied access. there is not a good public policy rationale for that. when those things are present it seems to me that the court needs to look very carefully and argue whether the const duchenne is involved area i believe it is -- whether the constitution is involved. i believe it is.
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whether it happened when the 14th amendment was passed or when we came to understand this is less important than that it is a violation. >> i think these answers are 's response.r layman from a legal term i want to use another analogy. for example, segregation. brown versus board of education said separate but equal is unconstitutional. 1954 is whenn that segregation became unconstitutional or was plessy versus ferguson in correctly decided? protection of the law was extended in that way against the separation of the races in 1868. that is the type of analogy i'm trying to draw. i do note a court -- just mean all those years of anti-sodomy laws were constitutional.
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and that then there was a switch and that they were not. when the court interprets a provision of the constitution, right or wrong they are interpreting what the provision actually meant when it was ratified. >> we have run out of time so that will have to be the last question. these join me in thanking our wonderful panel. [applause] [captioning performed bynational captioning institute] [captions copyright nationalcable satellite corp. 2013] >> the president of the hispanic federation spoke wednesday about immigration. here is a portion of his remarks. you can watch the entire event and the national hispanic leadership at c-span.org.
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>> good morning. the team knows have come have come-latinos together more than anytime in recent memory with a broad broad demand for immigration reform. that was clear in last year's presidential election were 12.5 million latinos into the polls to say enough, we demand, we expect expect rod and just immigration reform. today represents a coming .ogether of latino leaders here you have my colleagues who represent tens of millions of latinos across the nation coming together to make sure our community voice is heard, that our community is mobilized and engaged in key congressional district across the country. one of the things we look to do today moving forward is having town halls across america to make sure that that voice is loudly and clearly heard across
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the country. it is critically important that latinos are heard in this debate because ultimately the reason that we stand here today, the reason we are talking about immigration reform as a nation is because latinos have said enough, we want to make sure our broken immigration system is fixed and that it is fixed this year. isone of the mobilizations 60 town halls across america. the hispanic federation and many of our colleagues here will be conducting these town halls with hundreds of people in key congressional districts to make sure that congressional members across america gets the point that this is not only an important issue for our community but a defining issue for our community. above all else. we care about a lot of things, but this issue has united us unlike any other issue before broughtemand just and immigration reform. i stand with my colleagues to make sure that happens this year.
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>> inspections, not war. inspections, not war. >> mr. secretary, we will put down the signs. mr. chairman, as i listen to it struck mes what a wonderful thing free speech is. >> that was the hearing were donald rumsfeld was making the justifications for attacking iraq. what you did not hear in the clip were questions that we got a chance to ask him, which is how much money is halliburton going to make from the floor, how many u.s. soldiers will be killed in the war, how many iraq is will die? i would like his answers -- questions answered now by someone like donald rumsfeld. >> more with medea benjamin sunday night at 8:00.
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>> house democratic leader nancy pelosi weighed in on the defensive marriage act and predicted it would be ruled unconstitutional. she spoke with reporters for about 20 minutes. >> good afternoon. that was pretty exciting this morning. it was really, i believe, a dignified proceeding. the questions that were asked by the justices i thought were very evoked information and responses that i think were very
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constructive. this is as big as our constitution, as big as our country at self, something as personal as marriage in our country between same-sex parties. i had the privilege of being there with karen and amy. karen is a federal employee and she has a case at the court about whether her wife amy can --t benefits as a spouse as a of a federal employee. she was married in that window in california before prop 8 took away the opportunity to continue weddings in california. on the basis of what i heard, the questions of the justices,
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the response of the participants, i am very confident that doma will be struck down. it does not appear to have any justification for being. i should probably save first, full protection of all people in our country. so equal protection has been a principal that our country was founded on, that our constitution was written on. and i think, on the basis of the debate going back and forth, is it about equal protection or irrational races come on either -- rational basis on either score, the arguments, the debates seemed to favor striking down doma. the justices made the point on a number of occasions that, say, over a thousand laws in the books and regulations that
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relate to marriage that do not give equal protection to people who are married in the same-sex marriage. they used the word homosexual marriage. that is the word that they used. you will hear the report pretty soon. sitting there with amy and karen, like i said, this is as big as our country, as big as our constitution, as big as equal protection to the world, it's as personal as every family. and to sit there with them and you have probably seen edie windsor. she is the aggrieved party in the case that is coming before the supreme court.
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i'm not sure that is a technical term. maybe the federal government is the aggrieved party if the court strikes down doma and they have to pay her back the taxes, over $300,000 that she had to pay when her spouse died because it was a same-sex marriage. her spouse died and the internal revenue service did not recognize that this was a married couple. edie windsor is a very courageous woman. it was a joy to see her sitting there in the court, and held high about her marriage and the different she is making for other people as well as for herself. and, of course, having amy and karen in the courtroom. you may see that happily married couple doing just that. it was thrilling, i have to say. >> how does the fight for
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marriage rights compare with the initial fight in the 1970s? >> all of those were very important at the time. whatever the subject tested the, whether it was aids funding and the rest, it was always in the issue of discrimination, because it was to end discrimination against people with hiv and aids. one of the first issues that i came here in 54 when i came over -- and fought for when i cam o ver 25 years ago was the hate crimes legislation, again, to make sure people knew that it was very wrong to harm people on the basis of race, religion, sexual orientation. and then the other part of this, of course, it's a long fight for
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us. with president obama in office, we were able to repeal don't ask, don't tell. and we were able to get military families what they need. hopefully, doma will be struck down, but we will have work to do. i hope all of these people who are coming out in favor of marriage equality will be there for us for employment equality, too. what is for me personally gratifying is that coming our community, we have a large gay community, gay, lesbian, transgender, bisexual community. that we don't know them that way. we know them as being part of our community, whether it's the economy, the social fabric, the healthcare providers or leaders
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in every aspect of a community's life. over the years, one of the questions i would be asked, especially when i became part of the leadership, when i first became quick and after that, one of the first questions that a journalist asked me would be do you support gay marriage? and i would always say that i support gay marriage. i don't believe in discrimination of any kind. and it was like we have labeled you. it was a badge of honor for me. now it's a badge of honor for a lot of people that, for a long time, it was something that we knew was inevitable. from our beautiful place in san francisco, the city of st. francis, we knew it was inevitable that all of this would happen.
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it was inconceivable to others that it would. and it was our job to use whatever influence we could have to shorten the distance between the inevitable and inconceivable. and i think that is what is happening at the court because of many people's courage, especially those directly and personally affected. yesterday, i had gavin newsom as one of our attendees, people who have been working on this. jim parnell, the first openly gay ambassador, all of the san franciscans who have been in public service who have fought the fight. so it's pretty exciting. i feel pretty good. what i told you about healthcare 63, but we won. >> you got it right. >> i got it right. [laughter] that opening day next friday, we can start all over again on that
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one. >> leadership has been so quiet on doma. >> you could say this about that question. when you get the soundtrack -- is that what we are calling it? the audio -- [laughter] the soundtrack of the supreme court. [laughter] the soundtrack of the supremes. oh, you're too young. [laughter] anyway. what was really interesting to me was to hear a spokesperson for doma. what a stale role to play in life. but nonetheless, when he was up there, he was defending the house is standing on this issue
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because of the blag periods bipartisan legislative advisory group. first of all, it wasn't bipartisan. we showed up one day. three-two, the republicans voted to defend doma. never again did we need. they voted $500,000 that day. and not in a bipartisan way. they take the title blag as if there was some bipartisan support on that. and they has spent about $3 million by now. so it is very strange. i don't know if they are silent or if they are speaking with the taxpayers dollars being spent without benefit of votes in the blag, dedicating it on a vote
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that says that blag having the vote, but not taking action.
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>> i'm not sure that the federal government -- this answers your question, justice scalia -- i'm not sure the federal government can create a new federal marriage that would be some kind of marriage that states don't permit. >> well, let me get to the question i asked mr. clement. it just gets rid of the word "marriage," takes it out of the u.s. code completely. substitutes something else, and defines it as same-sex -- to include same-sex couples. surely it could do that. >> yes. that would not be based on the state's -- >> so it's just the word "marriage"? and it's just the fact that they use this term "marriage"? >> well, that's what the federal government has always chosen to do. and that's the way the federal law is structured, and it's always been structured for 200 years based on the state police power to define who's married. the federal government i presume could decide to change that if it wanted, and somehow, it would
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be very strange for all 1,100 laws, but for certain programs you have different requirements other than marriage, and that would be constitutional or unconstitutional depending on the distinction. >> but if the estate tax follows state law, would not that create an equal protection problem similar to the one that exists here? suppose there were a dispute about the -- the state of residence of your client and her partner or spouse. was it new york, was it some other state where same-sex marriage would not have been recognized? and suppose there was -- the state court said the state of residence is a state where it's not recognized. would -- would you not have essentially the same equal protection argument there that you have now? >> well, let me -- let me answer that question very clearly. our position is only with respect to the nine states -- and i think there are two others that recognize these marriages. so if my client -- if a new york couple today marries and moves to north carolina, one of which has a constitutional amendment, a state constitutional amendment and one of the spouses dies, they would not -- and estate taxes determine where the person dies, they would not be entitled to the deduction. that is not our claim here.
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moreover, justice alito, in connection with a whole host of federal litigation, there has been federal litigation for hundreds of years with respect to the residency of where people live or don't live, or whether they are divorced or not divorced throughout the federal system. and the federal government has always handled that and has never before -- and we believe this is why it's unconstitutional -- separated out a class of married gay couples solely because they were gay. >> just -- if i could follow up with one -- one question. what if the -- the hypothetical surviving spouse, partner in north carolina, brought an equal protection argument, saying that there is no -- it is unconstitutional to treat me differently because i am a resident of north carolina rather than a resident of new york. what would be -- would that be discrimination on the basis of sexual orientation? what would be the level of scrutiny? would it survive?
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>> that would be certainly a different case. it'd be more similar to the case i think you heard yesterday than the case that we have today. we certainly believe that sexual-orientation discrimination should get heightened scrutiny. if it doesn't get heightened scrutiny, obviously, it'd be rational basis, and the question would be what the state interests were in not allowing couples, for example, in north carolina who are gay to get married. no one has identified in this case, and i don't think we've heard it in the argument from my friend, any legitimate difference between married gay couples on the one hand and straight married couples on the other that can possibly explain the sweeping, undifferentiated and categorical discrimination of doma, section 3 of doma. and no one has identified any legitimate federal interest that is being served by congress's decision, for the first time in our nation's history to undermine the determinations of the sovereign states with
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respect to eligibility for marriage. i would respectfully contend that this is because there is none. rather, as the title of the statute makes clear, doma was enacted to defend against the marriages of gay people. this discriminatory purpose was rooted in moral disapproval as justice kagan pointed out. >> what -- what do you think of his -- the argument that i heard was, to put the other side, at least one part of it as i understand it said -- look, the federal government needs a uniform rule. there has been this uniform one man one woman rule for several hundred years or whatever, and there's a revolution going on in the states. we either adopt the resolution -- the revolution or push it along a little, or we stay out of it. and i think mr. clement was saying, well, we've decided to stay out of it -- >> i don't -- >> and the way to stay out of it is to go with the traditional thing. i mean, that -- that's an argument. so your answer to that argument is what? >> i think it's an incorrect
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argument, justice breyer, for the -- >> i understand you do -- i'd like to know the reason. [laughter] >> of course. congress did not stay out of it. section 3 of doma is not staying out of it. section 3 of doma is stopping the recognition by the federal government of couples who are already married, solely based on their sexual orientation, and what it's doing is undermining, as you can see in the briefs of the states of new york and others, it's undermining the policy decisions made by those states that have permitted gay couples to marry. states that have already resolved the cultural, the political, the moral -- whatever other controversies, they're resolved in those states. and by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of federal law, you're not -- you're not taking it one step at a time, you're not promoting caution, you're putting a stop button on it, and you're having discrimination for the first time in our country's history against a class of
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married couples. >> is the -- >> now, the -- the discriminations are not the sexual orientation, but on a class of marriage -- is that what you're -- >> it's a class of married couples who are gay. >> so i pose the same question i posed to the general to you. do you think there's a difference between that discrimination and -- and the discrimination of states who say homosexuals can't get married? >> i think that it's -- they're different cases. i think when you have couples who are gay who are already married, you have to distinguish between those classes. again, the federal government doesn't give marriage licenses, states do, and whatever the issues would be in those states would be what interest the states have, as opposed to here, what interest -- and we think there is none -- the federal government has. there is little doubt that the answer to the question of why congress singled out gay people's marriages for disrespect through doma.
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the answer can't be uniformity as we've discussed. it can't be cost savings, because you still have to explain then why the cost savings is being wrought at the expense of married couples who are gay -- and it can't be any of the state interests that weren't discussed, but questions of family law in parenting and marriage are done by the states, not by the federal government. the only -- the only conclusion that can be drawn is what was in the house report, which is moral disapproval of gay people, which the congress thought was permissible in 1996 because it relied on the court's bowers decision, which this court has said was wrong, not only at the time it was overruled in lawrence, but was wrong when it was decided. >> so 84 senators -- it's the same question i asked before -- 84 senators based their vote on moral disapproval of gay people? >> no, i think -- i think what is true, mr. chief justice, is that times can blind, and that back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction --
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>> well, does that mean -- times can blind. does that mean they did not base their votes on moral disapproval? >> no -- some clearly did. i think it was based on an understanding that gay -- an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that i don't think exists today and that's the sense i'm using that times can blind. i think there was -- we all can understand that people have moved on this, and now understand that there is no such distinction. so i'm not saying it was animus or bigotry, i think it was based on a misunderstanding on gay people and their -- >> why -- why are you so confident in that -- in that judgment? how many -- how many states permit gay -- gay couples to marry? >> today? 9, your honor. >> 9. and -- and so there has been this sea change between now and 1996. >> i think with respect to the understanding of gay people and their relationships there has been a sea change, your honor. >> how many states have civil unions now? >> i believe -- that was discussed in the arguments, 8 or 9, i believe. >> and how many had it in 1996? >> i -- yes, it was much, much fewer at the time. i don't have that number, justice ginsburg -- i apologize.
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>> i suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case? >> i disagree with that, mr. chief justice, i think the sea change has to do, just as discussed was bowers and lawrence, was an understanding that there is no difference -- there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples. >> you don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you? >> with respect to that category, that categorization of the term for purposes of heightened scrutiny, i would, your honor. i don't -- >> really? >> yes. >> as far as i can tell, political figures are falling over themselves to endorse your side of the case. >> the fact of the matter is, mr. chief justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way
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gay people have. and only two of those referenda have ever lost. one was in arizona -- it then passed a couple years later. one was in minnesota where they already have a statute on the books that prohibits marriages between gay people. so i don't think -- and until 1990 gay people were not allowed to enter this country. so i don't think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous -- i think gay people are far weaker than the women were at the time of frontiero. >> well, but you just referred to a sea change in people's understandings and values from 1996, when doma was enacted, and i'm just trying to see where that comes from, if not from the political effectiveness of -- of groups on your side of the case. >> to flip the language of the house report, mr. chief justice, i think it comes from a moral understanding today that gay people are no different, and that gay married couples' relationships are not significantly different from the relationships of straight married people. i don't think --
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>> i understand that. i am just trying to see how -- where that that moral understanding came from, if not the political effectiveness of a particular group. >> i -- i think it came -- is, again is very similar to the, what you saw between bowers and lawrence. i think it came to a societal understanding. i don't believe that societal understanding came strictly through political power -- and i don't think that gay people today have political power as that -this court has used that term with -- in connection with the heightened scrutiny analysis. >> thank you, ms. kaplan. mr. clement, you have 3 minutes remaining. >> thank you, mr. chief justice, just three points in rebuttal. first of all, i was not surprised to hear the solicitor general concede that there is no unique federalism problem with doma, because in the gill litigation in the first circuit, the state of massachusetts -- the commonwealth of massachusetts invoked the tenth
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amendment, and on that issue the united states continued to defend doma because there is no unique federalism problem with it, as the chief justice's question suggested. if 10 years from now there are only 9 states left and congress wants to adopt a uniform federal law solely for federal law purposes to going the other way, it is fully entitled to do that. it has the power to do that. i would say also the federal government has conceded in this litigation that there is a rational basis for this statute, something else to keep in mind. i would also say that this provision is not so unique. the very next provision in the dictionary act -- >> rational basis, mr. clement -- is a problem in your briefing. you seem to say and you repeat it today that there is three tiers, and if you get into rational basis then it's anything goes. but the history of this court is, in the very first gender discrimination case, reed v. reed, the court did something it had never done in the history of the country under rational basis. there was no intermediate tier then. it was rational basis. >> well -- >> and yet the court said this is rank discrimination and it
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failed. >> and, justice ginsburg, applying rational basis to doma, i think that there are many rational bases that support it. and the solicitor general says, well, you know, the united states is not the 51st state to be sure, but the federal government has interests in uniformity that no other entity has. and we heard today that there's a problem -- when somebody moves from new york to north carolina, they can lose their benefits. the federal government uniquely, unlike the 50 states, can say, well, that doesn't make any sense, we are going to have the same rule. we don't want somebody, if they are going to be transferred in the military from west point to fort sill in oklahoma, to resist the transfer because they are going to lose some benefits. it makes sense to have a uniform federal rule for the federal government. it is not so anomalous that the term "marriage" is defined in the u.s. code. the very next provision of the dictionary act defines "child." these terms, although they are the primary province of state governments, do appear in multiple federal statutes and it's a federal role to define those terms. the last point i would simply make is in thinking about animus, think about the fact that congress asked the justice department three times about the
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constitutionality of the statute. that's not what you do when you are motivated by animus. the first two times they got back the answer it was constitutional. the third time, they asked again in the wake of romer, and they got the same answer -- it's constitutional. now the solicitor general wants to say -- well, it was want of careful reflection? well, where do we get careful reflection in our system? generally, careful reflection comes in the democratic process. the democratic process requires people to persuade people. the reason there has been a sea change is a combination of political power, as defined by this court's cases as getting the attention of lawmakers -- certainly they have that. but it's also persuasion. that's what the democratic process requires. you have to persuade somebody you're right. you don't label them a bigot. you don't label them as motivated by animus. you persuade them you are right. that's going on across the country. colorado, the state that brought you amendment 2, has just recognized civil unions. maine, that was pointed to in the record in this case as being evidence of the persistence of discrimination because they voted down a statewide referendum, the next election cycle it came out the other way. and the federal congress is not immune. they repealed "don't ask, don't tell." allow the democratic process to
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continue. thank you, your honor. >> thank you, counsel, counsel. the case is submitted. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] susan apold and a survey examined the workers think they will have enough savings to retire. we will take your phone calls, e-mails, and tweets. ashington journal -- "washington ," each morning at 7:00 a.m. on c-span. >> we will put them down as
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undecided. [laughter] >> as i listen to those what as, it struck me wonderful thing free speech is. >>, rumsfeld made the just -- donald rumsfeld made the justifications for attacking iraq. how much money is halliburton going to make? how many u.s. soldiers will be killed? how many iraqi civilians will die from this adventure? i would like those questions answered now by someone like rumsfeld. >> more with medea benjamin sunday night at 8:00 p.m. on c- q&a.'s q when the -- this event is held at the
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cato institute. it is one hour and 10 minutes. >> welcome to the cato institute. welcome to those who are watching on c-span 2 and on cato.org. how is my reception? can you hear me?
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ok. we are delighted to bring together an all-star panel to talk about the state of gay marriage in the supreme court and in american society. a couple of our panelists are fresh from hearing the second day of the supreme court oral arguments. it has been kind of dramatic. i heard the audio and belies there were extremely left-wing and right-wing ideas. and that is just justice kennedy. [laughter] we will be starting out with a discussion on how things went this morning and yesterday at the court. we will move into a wider discussion on what this all means for american politics and culture. we are being join today by three wonderful panelists. at my far right is shapiro from the cato institute. he directs one of our programs and submitted a wonderful brief to the court. on the other side is ken. best known for being the chairman of the republican national committee and running george w. bush reelection campaign. he is known as an outspoken and eloquent advocate of same-sex marriage.
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at my far left -- only in that sense -- i will not call you a token democrat, evan. >> i'm a token straight guy here. [laughter] >> he has been working on the gay movement for a long time. he has farther advanced them more than anyone would have expected. he is the founder and president of freedom to marry. we will do it as a general discussion. i will throw some questions out there. you have all got your cell phones. evan has to leave a little early. we will respect that.
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if you are saving up questions, there'll be time for questions afterward. if there is a question you want to ask evan, wave emphatically. >> the jurisdictional arguments made my head hurt. yesterday was pretty understandable. today we had these very interesting and fascinating issues. curiously, this room court took this case at the behest of the u.s. government, which agrees with that court below. it is enforcing doma while not defending it in court. is that proper?
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one person was there to argue and representing the house of representatives. the awkwardly named blag that takes 3-2 votes on every action that blag takes in the court. does the house of representatives have standing to defend the law given that the u.s. government is not? there is a lot of discussion. everyone had to go home and read that. it seemed like doma section three is not long for this world. the so-called liberal justices would strike it down on equal protection grounds.
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a lot of discussion. justice kennedy spent all his time using both jurisdictional and substantially on what he would do to strike down doma section three on federalism grounds. no controlling opinion. >> evan? >> let me start by saying that we say in front of every argument that you cannot judge an argument. the questions and answers were fast and furious on both questions.
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that is what we all say and then everyone starts to tell you what they think will happen. i want to underscore that the questions and issues and constellations and crankiness on the parts of some justices, you can attribute them to not wanting do something but feel like they should, really makes this hard to say on the basis of the two arguments of what will happen. you need to take every prediction you hear and read and tweet very skeptically. the justices will go back and delve through a mountain of briefs in both cases. it is a huge amount of evidence and arguments. there will be circulating opinions. that will be two challenges that some may have and they will try to write it in a limited direction in this way or that way and realize maybe it is not right the way they are trying to
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write it. it is an important reason for caution in all of the predictions, including mine that you will hear. having said that, there are two things that we know very clearly. one thing that we know is that while the justices are doing their homework and going through the process that was described, the best single way we can maximize winning the freedom to marry and even getting the justices to do the right thing as a deliberate now in the court is to do what we have been doing, which is to continue winning more states and winning over more hearts and minds.
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there are as many as four states that are considering freedom to marry legislation and could pass those bills into law before the court hands down a ruling likely at the end of june. the biggest thing that we can do to maximize the chances of winning are to pass those marriage bills and continue growing extraordinary who's who of america that have stepped up over the last many weeks and months supporting the freedom to marry, including the amicus brief. all of that is what creates the climate and the momentum that encourages the justices to find the right constitutional legal roadmap. the other thing we know is that clearly the freedom to marry has the momentum and has a winning strategy.
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the strategy that has brought us to this moment of hope is the strategy that will bring us the freedom to marry nationwide, whether in june or in the round of work in the court as soon as possible. one of the questions in exchanges that came up yesterday was to point out that the supreme court got interracial marriage wrong before it got it right. loving versus virginia, which the court struck down race restriction on marriage. the court got it wrong. whatever the court does in june, we have a winning strategy if we keep doing the work. i think all of the commentators yesterday would say that it was choppy and lively and engaging. immediate reaction today was very much sort of what ilya said. i think it was clear that the chances of the courts striking down the defense of marriage act are far greater than not striking it down.
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i think equal protection as well as federalism concerns are very much in play. what was striking was that no one in court offered a reason to justify the denial of the freedom to marry or the defense of marriage act. with opponents were pushing was don't go fast. don't do it now. take your time. let's have a pause moment. >> the big one thing that was talked about was uniformity. he never mentioned anything beyond that. the federal interest will be different than the state interest.
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yesterday was about child rearing and social moral development and belief hours to the state. this is different. he kept pounding that uniformity. >> the reason why i say it the way i say it is that you are correct. in the actual policy let alone the constitutional specificity about gay people. >> i would make two points and i will not reiterate. evan made two points that are interesting. first, what has galvanized the public are the stories. the story of edie windsor is a compelling story. she found a partner and spent her life with her partner and at the end of a long life of commitment and of love and support, is faced with hundreds of thousands of dollars in
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taxes. then you look at the plaintiffs in the prop 8 case, the perry case. they are trying to do the right thing and they are punished for it. both stories, examples, these aren't concepts, these are real people making a gigantic reference. second, look at the ross section of society. military leaders, business leaders, leaders of excellent think tanks, all making the case from there's perspective and why it makes sense. big change does not happen in a single direction. it happens when suddenly all across society people speak out from there is practice and explain why. third, often political debates come down to a debate which and what i would describe as substance and process. important questions are being
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raised. they ought to be discussed. we ought to take very seriously and respond and listen to. if you listen not only to the lawyers in court, but the advocate speaking publicly on tv and other places, what is interesting is that a or five years ago, a lot of what it would describe as subsistent argument is on one side, but over half of them are on it will marriage equality. one side says fairness and freedom and better for kids. one side says process. usually the former is a lot more compelling to judges and to the public. those are slight additions. >> evan, i would like to challenge one of your interpretations. there was a case of mclachlan versus florida.
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when she brought up that case, three years before loving versus virginia, interracial cohabitation, he seemed to me that she was praising the court for having taken off no more than it could chew other than admitting it made a mistake. she was praising it. she wrote about her feelings. between that time, there is a huge movement in american public opinion.
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it made it more acceptable later than before. >> you are partly right. you're absolutely right about the case. the case she was referencing with mclachlan regarding cohabitation rather than marriage, issues making the point you were saying that the court in that taste ruled on what was before it, which was cohabitation, rather than going for the to address the not directly presented question of marriage. you are correct about that. the case i am referring to is name versus name. it is on the same piece.
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your point is correct. in terms of your larger point, however, what the important point is that the question of the freedom to marry is clearly prevented in the perry case. with the rules that regard to or rules to california, that was very much kicked around in court yesterday. we will see what the court chooses to do. let me say one other thing -- justice ginsburg has pointed out that her comments from 30 some years ago -- i can't remember now with regards to roe v. wade has been taken a little bit out of context. it is not that the court should not rule on what is in front of it, it is that the court should not feel necessarily compelled to go beyond what is in front of it to settle broader things.
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>> two other points. when loving was affirmed by the court, over 60% of people were against biracial marriage. when this decision was made with roe v. wade, 52% believed - that number has basically not changed. look at the data when it comes to support for marriage equality today. not only do you have a majority in support of it, but in fact in those states where marriage was enacted by courts -- massachusetts, connecticut -- the republican and democratic candidates supported it. the evidence is that in fact some issues, the court does preclude democratic discussion and make it harder to develop a consensus on an issue. in this issue, that has not been the case. we have had 10 years of very active decisions.
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support has continued to increase. >> i agree with his point. when the supreme court struck down race restrictions in loving, i do not think that there was a tremendous change. some polls showed 60% opposed it. >> was a nine or 16 states that prohibited it? something like that? >> i'm talking about public opinion. i do not think there are that many people today who inks the court should have taken a vote and upheld bans on interracial marriage.
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the whole reason we have a constitution in court is that some things are not told and some things are not put up to a vote. there are state bars. in particular, freedom to marry, is a freedom that believes to the individuals. it is about pursuing happiness and exercising liberty. that is why we have courts. they should not make all policy decisions, but there are certain decisions that are reserved to the individuals and protected by the courts and the constitution. as far as the state question, you are right. one way to look at how to set the stage for the supreme court to do the right thing is an interplay between two critical masses. one is a critical mass of public support and the momentum. and it is also a critical mass of states.
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what is happening in the states? look at where we were in loving. we are ahead now in terms of public opinion and where we were and not as far as we were with regard to states. the freedom to marry strategy will win if we continue the interplay of those two critical masses. >> i think you brought out very well the tension between public opinion and the courts, yet we also have to keep it as a matter of principle. the states, as i understand it from this morning's argument, justice kennedy was interested in the federalism. this is something that we have been obsessed with. a number of legal scholars have signed a brief arguing that doma
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flunks on federalism. ilya and others take a very different view. i will ask you about that in a minute. to make clear up what the stakes are on this, if the brief were followed and it were decided that the federal government had to but out of it, a number of other interesting teams would happen. there would be a new powerful constitutional argument for taking the federal government out of other areas. there has been some panicky reactions already. there also might be consequences in saying that the future federal government cannot restrict the rights -- am i right?
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>> let's be clear -- the federalism concerns that are there are also very deeply intertwined with the protections of dynamics. you cannot treat each end of the constitution as separate, particularly when a law is targeting law that has been inflicted by the federal government. in this case, by the act of congress in 1996. i am going to sign on to some broad mandate to sweep away federal powers in the name of federalism, but i think in this particular case, it is clear -- and i think it is clear from some of the questions on where
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they will go with this is not so clear -- justice kennedy has settled on federalism -- i do not think it works that way. several justices pointed out in various ways was that congress took an unprecedented, radical step of treating itself into a domain that everyone agrees that wherever you are on the spectrum, it is constitutionally mostly left to the states and did so in a sweeping way and target it when people to impose a particular policy outcome. that is an intertwinement of the two. as justice ginsburg pointed out, this was not just congress saying you do not -- this is congress saying for all the 1100 plus federal protections and
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responsibilities and incidence of the freedom to marry, we will have two classes of marriage. there is marriage and skim milk marriage. that is a problem whether you look at it under the federalism lens or the protection lines. >> maybe they're being too broad. even more fundamentally, the role of government and marriage at any level. why should we have to get a license from the government, a piece of paper, legal recognition? the only reason we are arguing is because government is involved. have a regime of common law and have whatever church or synagogue -- what is the word for wicans?
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covens. that is fine. once the government gets involved, there are other issues. more specifically in the federalism issue, i had a debate with john adler, a friend on the role of federalism on prop 8. i agree mostly with what evan said. as is not at issue of whether the federal government overstepped its bounds. this is the issue of whether the prop 8 case, a state in having this law, this marriage law, can lawfully discriminate or treat people differently he said on sexual orientation. it is not a slam dunk case.
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that is what the issue is. the issue is not whether the federal court art be the ones making that decision or the executive. by definition the ratification of the 14th amendment, if you have a state violation of an individual's rights on these protection grounds, i buy that much more strongly, then it is for the federal court to decide that issue. if the starts are not violating any laws, fine. if they are, as i have argued in my brief, then it has to make that ruling. on the doma, that debate has also played out. another fellow has argued that of course the federal government has the power to define the term it uses in its statute. justice alito said, what if they did not use the word "marriage"? what if they used "domestic
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couples that are certified" or something like that? again you get down to the basic issues. that federalism in general has to collapse. justice kennedy may not agree. both kennedy and roberts seemed to be very attracted to this federalism argument. i do not buy the federalism argument. i'm not sure. i like the equal protection argument. whether legal or credential grounds -- we could have this sort of way station on the way to an eventual, political resolution, and most of the states as a nation as a whole.
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>> we always wonder whether amicus briefs are having an effect. one of them that seems to have caught justice kennedy's eye is by professors leon katz and harvey mansfield, saying that social science is newer than cell phones and the internet and is done by scholars -- they have points they want to make. their research is sometimes not very rigorous. justice kennedy was swayed, it seemed,. what would you have said? >> to me, that was my biggest disappointment. in this case there is an extraordinary and one-sided record in part based on the
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important trial that occurred in which both sides had any opportunity they wanted to bring witnesses, cross examine, call evidence, and at the end of the trial it was clear that the social science data, the evidence, the witness testimony in favor of how gay parents are fit and loving and doing well and their kids are doing well and there is absolutely nothing to contradict that from any reputable source, that was crystal clear at the trial and was amplified, again, by an extraordinary array of friend of the court briefs in which every leading public health and child welfare authority in this country has weighed in on the side of the freedom to marriage for loving and committed couples. it is important that the justices, including justice
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kennedy, be reminded and pointed to these briefs as evidence, including the trial itself, which was echoed by the way the trial 14 years earlier in hawaii where the same questions were first litigated and the same findings in favor of gay parents and kids being raised by gay parents absent evidence from the other side were made. so the good news here is that contrary to the drama we all feel about it, it is not the most important influence on how justices rule. they will go back and look at the record. >> a number of the avatars on facebook. >> that will do it. they will look at friend of the court briefs. they will see that these are not uncharted waters, and not an open question, not something people need to worry about. gay parents are doing great, our kids are doing great.
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it is absolutely clear that even if you did not think that was true the best way to protect kids is to provide their families with support and structure and dignity that comes with marriage rather than pop -- rather than punish kids for having the wrong kind of marriage -- parents by withholding marriage. >> let me ask another question about if you are there. justice roberts was, it seemed, swayed by one of the arguments that was offered which was that some of these documents were targeting politically powerless minorities who had no way of mustering support. would you say that if there are such minorities they are not in front of us because look at the stampede to endorse gay marriage. this is not a politically powerless minority. >> well, this raises some problems in our jurisprudence more broadly. ever since we started bifurcating our rights --
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infamous footnote four, some rights are more equal than others, the way the supreme court has distinguish which rights apply and which groups are protected is by applying different levels of scrutiny and different criteria to different so-called classes. i would rather answer the question of whether gays or people who support gay rights are a politically powerful or not politically powerful group for legal purposes. i think in the late sense of the word i think they are. how it is interpreted legally, the tests change and the scrutiny rubric often depends on what the end objective of the justice who implies them means. is this part of the debate about whether we apply rational basis or scrutiny -- we probably will not go into much of that.
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i certainly hope the court does not go into that. >> i would put it a little differently. i do not think what the court is doing properly in those analyses is talking about which groups are protected or who has more rights. what the court is probably doing is saying there are certain classifications the government draws that are more suspicious. some are very suspicious. the government uses race as a criterion. that is suspect and requires a presumption. the court has identified other suspicious qualifications such as sex, religion, ethnicity. the argument is that sexual
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orientation likewise should be viewed with suspicion. there are factors the court has identified, factors the court should look to in determining whether there is a suspiciousness to a government classification. those factors include things like a history of discrimination. in this case the degree of political powerlessness. nobody thinks that is an absolute. obviously we have an african- american president, we have many african-americans in congress. we have latinos emerging. but does that mean that race is not a suspicious classification when the government uses it for a criterion? most of us would say, ups -- of course race is suspicious. women are more than half of the voters. does that mean, however, the classifications based on sex are not suspicious? we would say no.
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as the head of freedom to marry, i want to see us have more power. i want to see us dismantling that history of discrimination. the fact that gay people have been targeted by ballot measures more than any other group in american history and endure to this day explicit anti-gay discrimination in 30 states and the absence of protection at the federal level. yes, we are growing in terms of our ability to enter the political process and engage and persuade, but does that mean gay people are not still disadvantaged in the political system and political process with the defense of marriage act and the denial of the freedom to marry? of course it does. that is why there should be a presumption of the -- unconstitutionality the court ought to apply. >> if we can get back to the legal issues -- i promised half the program would be on politics and culture. let me switch to that. we have all follow public opinion polls, some more closely than others. one of them fascinated me the other day.
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it purported to show, and maybe i was not reading it right, that although there has been a tremendous movement on this, if you step back and average together the polls you find it is actually a movement of about 1.5% a year, which seems to depend on whether it is in the news or not, in the supreme court or not, whether allen to generous is on the front page of "time" or not. is this correct? if it is, why are we talking about this when -- >> there was a very interesting analysis by a republican pollster who was president bush's polling and does polling for senator mcconnell and others. he looked at all the public polls from basically 1993
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forward, which is when they really began measuring public attitudes on marriage. from 1993 to 2009 there was a one percent increase a year, a lot of which could be attributed to demographic change. from 2010, 2011, 2012, 5% a year. he believes, and i think he is right, is attributed to all the stuff people are doing. the truth is in my judgment what is happening here in washington is very important. and around the country is very important. but the most important thing is the power of people to recognize that it is not a concept. these cases highlight it is not a concept. edy windsor is being really punished. this is about whether she has to pay hundreds of thousands of dollars and potentially lose her home. what chris and sandy face is not a concept. this is whether they can make medical decisions for their children.
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in only 20 states if one of them is in the hospital can the other make a decision about their care. that is a real deal. so not only people have come to understand these are real issues and real injustices, they have come to understand they are happening to their, their children, their friends, their relatives. what this conversation has done, i think, is a whole lot more folks have come out and explained. no longer are you thinking about this in terms of -- it used to be a concept about those people. now it is a real thing about my people. when you think about it that way, it has a huge impact. that has also made a difference. look at a couple recent data points in polling. the "washington post" poll came out this week. 54% of evangelical millennial's, millennial voters, essentially voters under 30, support freedom of marriage. 80% of voters overall under 30
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support freedom to marry. 50% of republicans, including independent leaning republicans, support the freedom to marry. they also asked the question of have you changed your opinion. 40% of voters changed their opinion. 12% in favor, two percent against. for every one voter who has changed to be against the right to marry, nine have changed to be in favor. those are big changes this conversation is helping to inform. >> real quick on the polling, the other thing to note is that whatever demographic you are looking at, whether it is evangelicals tom a blacks, jews, evangelicals, blacks, jews, the younger you go there is more support. to a certain -- to a real extent opposition is dying off.
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unfortunately, the one demographic, a bit of a glib comment, that is against is over 65. and the average age of the supreme court is 67.9. >> i completely agree with the point. i want to underscore that as part of a piece of that as part of the larger whole. what has happened over the last couple years as part of this swelling, accelerating momentum and people changing their hearts and minds in greater numbers, more people talking in broader numbers, people like ken mehlman and ted olson, whose biggest contribution to this cause was his speaking out as a pillar of the conservative establishment and giving permission to others
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that respect him to think anew. we have seen more of that thanks to people across the spectrum and the general public. that has been part of this dynamic we have seen accelerating over the last few months and years. >> let me ask ken. for all the demographic groups that have moved from being negative to being positive, one that is still very negative is republican primary voters. when a republican would be elected official talks to about this, how do you suggest they get from point a to point b? >> first of all, i do not necessarily agree with that. it depends on the primary, depends on the jurisdiction we are talking about. to me, i think the questions are a couple -- where are the voters you are speaking to standing on the issue? the second thing, how much they care about it. where is the energy with respect to the issue? what has changed also in the last several years is the energy is on behalf of advocating for not advocating against.
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you can be against something and not care that much. that issue, then, is an issue that a candidate needs to think about but less important than if the voters care a lot. voters care a lot more about being for it than being against it. point number two is, do voters feel you have made conservative arguments on behalf of these issues? i have done a lot of polling on this question. 79% of republicans believe that a same gender couple ought to be able to visit their spouse in the hospital. 57% believe that if one dies the other should not lose their property. 51% believe federal health benefits to be available. more than seven in 10 republicans believe in the employment nondiscrimination act. the "republican voter" is not what the republican voter is perceived to be if you look at the data. in the last year and a half we had an effort called project right side.

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