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Supreme Court Rulings on Same Sex Marriage; Opponents Unhappy, Offer Dissenting Opinions

Aired June 26, 2013 - 10:30   ET


GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Right. I have -- I have and they were making the argument about the equal protection clause. Ted Olson and David Boies, this one Democrat, one Republican, arguing that that Prop 8 violates the equal protection clause of the Constitution. They have said to me this is the last great civil rights fight of their generation.

So they would like to have a broad ruling such as the ruling you got on the Defense of Marriage Act. However, just because you got that ruling on the Defense of Marriage Act does not necessarily mean you're going to get it on Proposition 8.

And I can tell you whatever the ruling is on Proposition 8, it's going to be politically interpreted, and you're going to have to look at the details of it to determine how the state of California would react to it.

WOLF BLITZER, CNN HOST: Whether or not there will be same-sex marriage in California --

BORGER: In California.

BLITZER: -- or not. Tom Foreman is taking a closer look as we go through the decision, read it carefully, precisely. Tom, set the scene for us.

TOM FOREMAN, CNN CORRESPONDENT: Well think about this, Wolf where you just heard this other decision. There are 300 people in the court right now hearing the Prop 8 decision, and this is what they heard from the justices back in March. Listen to what Justice Kennedy, so critical in all of this, said. He said Prop 8 took the court into unchartered waters. And he expressed concern at the time about children in California, because the state does recognize same-sex marriage. He said, if you don't treat the marriages the same, don't you pose an immediate injury to some 40,000 children out in California?

Justice Sotomayor jumped in and she said she was concerned about the fact that the state would be denying a benefit to people in one area where they wouldn't in any other. She said, is there any other rational decision making that the government can make, denying them a job, not granting them benefits?

Justice -- Justice Scalia in all of this, as you might expect, challenged an attorney representing the gay rights side with a simple question, when did it become unconstitutional to exclude the homosexual couples from marriage? And Justice Alito hit on what many people thought would be the key coming into today, the sheer speed with it's all of this is moving forward in terms of a movement in our society.

He said about the court, you want us to step in on the effects of this institution, which is newer than cell phones or the Internet. Why should it not be left for the people? That's what they said back in March.

But Wolf, as we can see today, they are stepping in, in a big way. We'll just have to hear what they say about Prop 8.

BLITZER: We should know momentarily, Tom Foreman. Thanks you very much. Gloria is once again here. John King is here, as well. Gloria, you spent a lot of time looking into this Proposition 8 debate --


BORGER: I did.

BLITZER: And what we should be getting, if we get a clear answer from these nine justices, is whether or not same-sex couples will legally be allowed to get married in California.

BORGER: In the state of California. And I spoke with one of those same-sex couples, who are the plaintiffs. And let's take a listen to what Kris Perry said to me about the difference between marriage and domestic partnership.


KRIS PERRY, WANTS PROPOSITION 8 OVERTURNED: Domestic partnerships have nothing to do with love. They're not about love. They're about health benefits, title, protections in hospitals, perhaps, if you're fortunate enough to have that kind of domestic partnership. In our case, it results in increased taxation. It is not the same thing. In fact, most people would be surprised that Sandy and I have to have three different domestic partnership agreements in order to comply with employer requirements --


BORGER: Three?

PERRY: -- we are domestic partners in the city we live in, the county we live in, the state we live in. We have three. None of them, not one of them, can I tell you a date which it was executed, nor would I -- could I tell you for how long we've had them. But I can tell you this. The day I get married, I will remember that day. And I will celebrate that day every year with Sandy.

BORGER: Let me ask you, not being allowed to marry, how has that impacted you every single day of your life? SANDY STIER, WANTS PROPOSITION 8 OVERTURNED: It is the most important decision one makes in their adult life. Not being allowed to do so makes me feel like there must be -- that society thinks there's something kind of wrong with us. If -- if there weren't something wrong, then why wouldn't we be allowed to get married?


BORGER: And these two women are at the court today as are the other plaintiffs and -- and one of their attorneys is here today. Ted Olson happens to be trying a case in Philadelphia today, of all things. Wolf, they have been working on this case for most of the last five years.

BLITZER: And a lot of our viewers remember Ted Olson and David Boies from the 2000 critically important case that allowed President George W. Bush to become president of the United States.

BORGER: Right.

BLITZER: In Gore versus --

BORGER: And Ted Olson being a conservative jurist who's tried I believe 44 cases before the Supreme Court, is somebody that surprised a lot of people that he was doing this on -- on same-sex marriage and he brought his old opponent, David Boies into the case, because they believe of course that this isn't a political issue. They believe that it's a human issue and it's a constitutional issue of equal protection. We'll have to see.

BLITZER: Well let's talk a little bit about the President of the United States, because he's obviously put a lot -- he now supports -- he used to oppose same-sex marriage within the past year or so, he has formally come out in favor of same-sex marriage.

And it's become -- he even referred to it in his inaugural address. For him, this is sort of a legacy issue.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: It's a legacy issue now and it's a huge evolution, since you raised point I'm going to take a walk back over if that's ok. Because we can go through the President's evolution on this issue Wolf. Remember when the President ran for the office, when he was in the state senate in Illinois and when he was a U.S. Senator, first came to Washington he was opposed to same-sex marriage.

And let's take a look and just go through the President's evolution on this, because the President's evolution in many ways, if you look at public opinion polls, mirrors the country's evolution. And let's go back. This is the President back in October 2004 when he's just in to the United States senate.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES: What I believe is that marriage is between a man and a woman, but what I also believe is that we have an obligation to make sure that gays and lesbians have the rights of citizenship that afford them visitations to hospitals, that allow them to be -- to transfer property between partners, to make certain that they're not discriminated on the job. I think that bundle of rights --



OBAMA: -- are absolutely critical.

UNIDENTIFIED MALE: But as far as why, what in your religious faith cause you to be against gay marriage?

OBAMA: What I believe, in my faith, is that a man and a woman, when they get married, are performing something before God, and it's not simply the two persons who are meeting.


KING: Now, that's the President in 2004, again running for the United States Senate. Here he is as President of the United States, six years later, in December 2010, saying that, you know, on this issue, he's having second thoughts.


OBAMA: My feelings about this are constantly evolving. I struggled with this. At this point, what I've said is that my baseline is a strong civil union that provides them the protections and the legal rights that married couples have.


KING: Now, the President faced a lot of criticism from his liberal base, including the gay rights community on that point right here. And here is the President in his inaugural address in 2013. I'm going to stop, I'm sorry Wolf. Let's go back to you for the details.

BLITZER: All right let's go to Jake Tapper right now. He's got Jeffrey Toobin, Jonathan Turley. They've now gone through the actual Supreme Court decision, Hollingsworth versus Perry. Go ahead, Jake.

JAKE TAPPER, CNN HOST: Thanks, Wolf. Well there has been a sweeping decision earlier today having to deal with the Supreme Court striking down the Defense of Marriage Act, saying that if a state recognizes same-sex couples, the federal government cannot refuse them recognition.

Now comes the ruling in the California same-sex marriage ban, Proposition 8. And it's an unusual ruling. It's one that brings together an odd coalition of justices, two conservatives, three liberals. Jeffrey Toobin, what exactly did the court decide here?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: You know, I'm not afraid to say, Jake, that this is a puzzling decision. It's a puzzling line up of justices. Let me just say who's on which side. This -- this decision in the California Proposition 8 case is written by Chief Justice Roberts. It is joined by Justice Scalia, Justice Ginsburg, Justice Brier and Justice Kagan -- two strong conservatives, three liberals.

The dissenters in the California case are Anthony Kennedy, who wrote the majority opinion in the DOMA case, Justice Thomas, Justice Alito and Justice Sotomayor -- so one moderate, two conservatives, one liberal in dissent. That's -- that's the line-up. What they hold, the decision is that Hollingsworth, who is -- who was defending Proposition 8, had no right to be in court.

Remember, this is a case where two people who wanted to get married in California sued the state of California, to say that Proposition 8 was unconstitutional.

The governor of California, Jerry Brown, the Attorney General of California, Pamela Harris, said we agree with you. We think Proposition 8 is unconstitutional. So there was no one there to defend the law until Hollingsworth, who was one of the original supporters of Proposition 8, but who had no legal status, stepped in to defend the law. What the five justices in the majority have said is that he didn't have the right to do that.

What that means today, for whether same-sex marriages can resume in California, I'm not sure, frankly. Jonathan, do you know?

JONATHAN TURLEY: Well, what it means is that the 9th Circuit never really did have jurisdiction, so it essentially negates what the 9th Circuit does and that of course puts all of the attention back on the trial court. And presumably, that court did have jurisdiction, and the opinion would still stay valid.

But as you know, Jeff, it's very ambiguous. And this is an example of how standing, you know, makes for strange coalitions. If you look at these two cases, the standing issue is just as severe in the first case, where you had members of Congress defending the law.

And I represented members challenging the Libyan war and we were thrown out because the court would not recognize standing. And here they have. So you have the shifting standing grounds that you have. But I think that what you're going to see is there's going to be, as Jeff notes, a lot of attention on that trial court decision and whether it still has legs. Even if the court of appeals didn't have jurisdiction, whether they can go ahead then and say, all right, this stance, Proposition 8, is not good law according to that trial judge and therefore, the gate is open for -- for marriage.

TAPPER: Does that mean -- does that mean that we -- just for people, to remind them, Proposition 8 was a law passed by the voters of California in 2008. They overwhelmingly went to vote for the polls vote and went to the polls to vote for President Obama in 2008, and they -- not overwhelmingly, but a majority of them went and voted against same-sex marriage in California. Does that mean that that law stands, or that it was stricken down, because it was stricken down by the first court? TOOBIN: That's the question. And I don't think this opinion explicitly answers that question. But there's a political context here, too. California politicians, the leadership of California, the governor, the attorney general, the mayors of San Francisco, the mayors of Los Angeles, they want same-sex marriages to resume. If there is any ambiguity in this opinion -- and I think there is -- they are going to interpret it as a green light to go forward.

So I have to believe there will be more legal proceedings in California based on this, but I think you're going to have the whole political infrastructure of California saying, it's time to go, it's time to let people get married. They've been waiting long enough, they've won all these cases. So -- so I anticipate it's -- it's -- the -- the political leadership is basically going to say, you know, come and get me, Copper, come stop me from doing these marriages.

And I -- I don't know if anyone will.

TAPPER: And the key sentence in this decision has to do with precedent. The court says, we've never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to, and we decline to do so for the first time here. They're saying this has to do with precedent. We are not going to let individuals come forward to either -- to defend state laws if the state refuses to defend them.

TURLEY: Right. And I think, Jake, one of the interesting aspects, and we talked about this a little earlier, is what type of effect the sweeping language in the first decision will have on this continuing debate. Kennedy went out there and said, this is about marriage. This is -- it doesn't matter what the partners are, when he looked at federal benefits. And he gave very strong equal protection language that was missing in the Lawrence decision. It's now there.

And so, the interesting question is going to be is this returns to California and frankly, all of the states, is how much effect that's going to have on people. Because Kennedy went as close as he could in that opinion to saying there is an equal protection for same-sex couples, but he -- he did not go all the way to make that holding.

TOOBIN: Well and in this -- and certainly Justice Kennedy's opinion in the DOMA case is an invitation to two woman who live in Alabama or Mississippi or Texas or any of the 38 states that don't have same-sex marriage, to file a federal lawsuit and say, we have a right to get married.

The situation now is just like it was before the Supreme Court decided Loving versus Virginia, which was the case in 1967 that said state laws that bar racial intermarriage are unconstitutional. We seem to be moving in that direction, to have a federal law -- a federal constitutional guarantee of a right to same-sex marriage. Certainly Justice Kennedy invites that kind of challenge. We're not there yet. But you can bet those cases will be filed soon.

TAPPER: And what's unusual is we clearly have five Justices who think that same-sex marriage should be legal; that there is a constitutional right to same-sex marriage under the equal protection clause. Is that fair to say, or am I saying it too strongly?

TURLEY: Well Kennedy -- I think Kennedy comes very close to that. I mean he still left himself a little bit of room. But Jake, I think the most interesting thing about these opinions is the fact that those people like Scalia who are saying that morality legislation is an appropriate and perfectly valid form of law, are in the distinct minority. If you compare this to what happened before Lawrence, when the whole court -- not the whole court. The majority of the court, it once said you could criminalize homosexual relationships.

TAPPER: Ok, wait. I'm sorry to interrupt. Those are the petitioners right there in the Hollingsworth v. Perry case that we're seeing along with their attorney David Boies. I don't see Ted Olson there.

TOOBIN: Ted Olson is arguing a case in Philadelphia.

TAPPER: Ted Olson is arguing a case in Philadelphia. But those are the same-sex couples who sued the state of California and it came all the way to the Supreme Court. They seem to be very triumphant, although, obviously, it was an ambiguous decision, as we've discussed.

Gloria Borger, you have interviewed David Boies at length about this case.

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Right. And I think the question that we're all asking is whether the California district judge on Walker's ruling, would then stand to a degree and, you know, it was a very broad ruling which may be why they're cheering.

To your political points here, though, these people will say that within a month, there will be same-sex marriages in the state of California. I think state officials clearly have to read this opinion very carefully to get a guidepost about what they can and cannot do. But let's -- there's Ted Boutrous, another lawyer who argued the case, along with David Boies, and Ted Olson, as you point out, is arguing another case. In California there's Chad Griffin, the head of the human rights campaign, who's been on this case from the very beginning, was one of the people who decided to take it up before the court. And let's hear what they have to say.

BLITZER: You know, it's interesting, guys, because right now we should know fairly soon, and I'm anxious to get Jeffrey Toobin and Jonathan Turley and others to weigh in, and I guess the practical question so many folks, especially in California want to know. Will same-sex marriage be legal in California within the next few days?

Here are those who support same-sex marriage. Let's listen in.

UNIDENTIFIED MALE: I'm the executive director of the American Foundation for Equal Rights. It's my great privilege to be here this morning with the plaintiffs' legal team and founding board members of the American Foundation for Equal Rights. Speaking first will be David Boies.

DAVID BOIES, ATTORNEY FOR PROP 8 PLAINTIFFS: This is a great day for America. Ten years ago today, the United States Supreme Court, in Lawrence against Texas, took the first important step to guaranteeing that all Americans, regardless of sexual orientation, are equal citizens under the law. Today, the United States Supreme Court in two important decisions brings us that much closer to true equality.

In the decision striking as unconstitutional the so-called DOMA, or Defense of Marriage case, the United States Supreme Court held that there was no purpose for depriving gay and lesbian couples the right to marry the person they love. There was no legitimate justification for that. As Justice Scalia noted, that holding -- that principle -- guarantees the right of every individual in every state to marriage equality.

In the California case, the Supreme Court held that the proponents of Proposition 8 did not have standing. What that means is that in that case the Supreme Court could not reach the merits. But everything that the Supreme Court said in the defense of marriage opinion, where they did reach the merits, demonstrates that when that case finally does come to the United States Supreme Court on the merits, marriage equality will be the law throughout this land. Our plaintiffs now get to go back to California, and together, with every other citizen of California, marry the person they love.

And the next step is to translate the promise that was in Lawrence and that was reaffirmed today in the DOMA case, that every citizen in every state has the right to marry the person that they love.

The Supreme Court's decision on standing is important for another reason. When we started out in this case, we said we were going to prove three things. We were going to prove that marriage was a fundamental right. And the other side accepted that. We said, second, we were going to prove that depriving gay and lesbian citizens of the right to marry the person they love seriously harmed them and seriously harmed the children that they were raising. And even the opponents agreed with that.

And third, we said we were going to prove that allowing everyone to marry the person that they love, regardless of sexual orientation, did not, could not harm anyone. And not only did the proponents on cross- examination have to accept that, but today, the United States Supreme Court said as much, because they said the proponents have no concrete injury. They cannot point to anything that harms them, because these two loving couples -- and couples like them throughout California -- are now going to be able to get married.

And so, this is a -- this is a wonderful day for our plaintiffs. It's a wonderful day for everyone around this country and in California in particular, who wants to be able to marry the person that they love. But it's a wonderful day for America because we have now taken this country another important step towards guaranteeing the promise that is in our constitution, in our declaration of independence, that all people are created equal, that all people have the inalienable right to life, liberty, and the pursuit of happiness.

So this is a great day. We thank the Supreme Court. We thank all of you, and perhaps most important, we thank all of the people who have devoted so much to this battle over so many decades. People who did it at a time when it was not as easy as it was for Ted Olson and myself to go into court. The only thing I regret today is that my friend and colleague, Ted Olson, can't be here. He has been a leader in this battle for the last four years. He is unfortunately, today, in another court, in another part of the country, arguing another case.

But his spirit is here, and he will be with me tonight, and we will celebrate, because this is a victory not just for us, not just for the plaintiffs, not even just for the people who have worked for this so many decades, but for all Americans. Thank you.

UNIDENTIFIED MALE: We now have comments from Kris Perry and Sandy Stier, plaintiffs in the case.

KRIS PERRY, PLAINTIFFS: Today is a great day for American children and families. Sandy and I want to say how happy we are, not only to be able to return to California and finally get married, but to be able to say to the children in California, no matter where you live, no matter who your parents are, no matter what family you're in, you are equal, you are as good as your friends' parents, and as your friends.

We believe from the very beginning that the importance of this case was to send a message to the children of this country that you are just as good as everybody else, no matter who you love, no matter who your parents love. And today, we can go back to California and say to our own children -- all four of our boys -- your family is just as good as everybody else's family. We love you as much as anybody else's parents love their kids. And we're going to be equal. Now, we will be married, and we will be equal to every other family in California. Thank you.

SANDY STIER, PLAINTIFF: You know, today, we also want to say thank you to all of you. Thank you to our supporters. Thank you to our amazing lawyers. Thank you to the constitution. And thank you to justice that was served today in this court. It was an amazing day. We thank the justices for overturning DOMA. It's so, so important for us and for all families. And we thank the justices for letting us get married in California.

But that's not enough. It's got to go nationwide. And we can't wait for that day. It's not just about us. It's about kids in the south. It's about kids in Texas. And it's about kids everywhere. And we really, really want to take this fight and take it all the way and get equality for everyone in this entire country. Thank you all. It's been a pleasure and an honor to represent you.

UNIDENTIFIED MALE: We'll now hear from Jeff Zarrillo and Paul Katami, also plaintiffs in the case.

JEFF ZARRILLO, PLAINTIFF: Wow, I don't need these. Our desire to do something and get involved in this case, to be plaintiffs, was very important to us. Perry changed the conversation. It altered the game. It created a groundswell of momentum and passion that brought us here to the Supreme Court today. Today, the court said that I am more equal, that we are more equal, our love is just like our parents' and our grandparents', and that any children that we may have in the future will be more secure. I look forward to growing old with the man I love. Our desire to marry has only deepened the last four years, as has our love and commitment to one another.

We look forward to using the words "married" and "husband," because those words do matter. They are important. I said it in my testimony in court. If they weren't important, we wouldn't be standing here today.

I'd like to give special thanks to Ted and David and the entire legal team, but Ted and David specifically, because their passion for equality is only trumped by the size of their heart. I'd like to thank Kris and Sandy for taking this ride with us, to Chad Griffin for his amazing strategic vision, to Adam and the entire team at the American Foundation for Equal Rights, and for the support that we have received from countless people that we don't even know, but who will benefit just as profoundly from this ruling today.

Thank you very much. Today's great day to be an American.

UNIDENTIFIED MALE: I'm not sure I can add anything --

BLITZER: Proponents of gay marriage, they are celebrating today, the two huge decisions by the United States Supreme Court. There are those who are very, very unhappy.

Let's get some dissenting comments now. The Reverend Albert Muller is joining us. He is the president of the Southern Baptist Theological Seminary. He's joining us now from Louisville, Kentucky; also joining us Tony Perkins, president of the Family Research Council. Reverend, let me start with you. What's your reaction to what the Supreme Court has decided today?

REV. ALBERT MUHRER, SOUTHERN BAPTIST TEOLOGICAL SEMINARY: Well, I think it's hard to overestimate the impact of the decisions today. I think, Wolf, especially the DOMA decision. Justice Kennedy's opinion takes us to the brink of nationwide same-sex marriage. And I believe that will be a devastating thing for this country. I believe that marriage is a pre-political institution, that it's one of god's greatest gifts to all his human creatures and it always has been and always must be the union of a man and woman.

To radically transform the institution of marriage is to change the definition of what it means for humans to exist together in community. I think when you look at American history, there are many dates that stand, and our constitutional history, what you might call stand-out red-letter days, this is one of those days. And I think even as many people are celebrating this, we recognize this is a major cultural divide over something as basic as marriage. And it is, I think, something that will be very, very devastating for our country over the long term. Because what it means is the inevitable marginalization of marriage and the subversion of the most essential institution for human existence. BLITZER: All right. Let me bring Tony Perkins into this conversation. In rejecting the Defense of Marriage Act saying it was unconstitutional said although Congress has great authority to design laws to fit its own conception of sound national policy. It cannot deny the liberty protected by the due process cause of the Fifth Amendment. A major set back for the Family Research Council by these two decisions today. Tony your reaction.

TONY PERKINS, FAMILY RESEARCH COUNCIL: Certainly the DOMA as Albert laid out is problematic. But it is again limited to the 12 jurisdictions -- the states that have same-sex marriage.

In the Prop 8, Mr. Boies and Olson did not go to the Supreme Court to see the court punt on that case. They went with the intention of imposing same-sex marriage on the nation. And that didn't happen. They failed in what they wanted to do. They failed in what they wanted to do.

This is far from over. In fact, time is not on the side of those who want to redefine marriage. If it were, I don't think they would have gone to the court trying to impose same-sex marriage on the entire nation. What we're going to see happen over time, as this plays out in the jurisdictions that have adopted same-sex marriage, you're going to see a loss of parental rights as children are taught in school morals that are contradictory to their parents, religious liberty laws from business owners, bakers, florists and others who are forced to comply with a different view of marriage as well as even churches, in some places, religious organizations losing their tax exemption, because they fail to comply with the force -- the force of the state in terms of redefining marriage. So I don't think this is over by any stretch of the imagination. And I don't think time is on the side of those who want to redefine marriage.

BLITZER: I don't think anyone thinks the whole issue of same-sex marriage throughout the United States is over. But, Tony, as far as California is concerned, the largest state in the United States, Gay couples will now be allowed to get married in California, based on what the justices of the Supreme Court decided today, right?

PERKINS: Well, it's unclear what has to happen from this point. But I would note that in 2000 and 2008, voters in California voted twice. So I think this certainly is a rejection of the voters of California who have twice gone to the polls to uphold the natural definition of marriage.

So they've completely ignored them as we can tell from the decision at present.