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CROSSFIRE

Arizona Legislating Discrimination Against Gays?; Holder: Ignore the Law

Aired February 25, 2014 - 18:28   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(BEGIN VIDEO CLIP)

ANNOUNCER: Tonight on CROSSFIRE does religious freedom mean freedom to discriminate against gays? Arizona's legislature just took a stand.

UNIDENTIFIED MALE: All of the pillars of society as we know it today are under attack.

ANNOUNCER: Should the governor sign the controversial bill or veto it?

GOV. JAN BREWER (R), ARIZONA: As always, I will do the right thing.

ANNOUNCER: On the left Van Jones. On the right Newt Gingrich. In the CROSSFIRE, L.Z. Granderson, who is against the bill, and Ken Cuccinelli who is for it. Is Arizona trying to protect religious freedom or legalize discrimination? Tonight on CROSSFIRE.

(END VIDEO CLIP)

NEWT GINGRICH, CO-HOST: Welcome to CROSSFIRE. I'm Newt Gingrich on the right.

VAN JONES, CO-HOST: And I am Van Jones on the left. In the CROSSFIRE tonight, we've got two opposing views on this big Arizona controversy. Now tonight, the NFL, American Airlines, Marriott and even Mitt Romney and John McCain all agree with me. Arizona Governor Jan Brewer needs to veto this so-called religious freedom bill that would actually legalize discrimination against gays and lesbians.

Now, she has until Saturday to make her decision. Here's my comment to her.

Governor, one of the greatest achievements we ever had in America is simply this. We got rid of six words. Those six words, "We don't serve your kind here."

Now, we take it for granted today, but it took a civil war and the civil rights movement a century of struggle to get rid of those six words. And now you have some folks in your state that want to take those six words, they want to wrap them in religious garb and re- inscribe them in law and ram them back into American society. No way, governor. You've got to veto this bill.

And Newt, I hope she does.

GINGRICH: Well, look, I think she will veto this bill. But I also think, if you look at the total array of political pressure, it tells you when political correctness refuses to even have a serious conversation. The fact is there are very real issues coming down the road about the power of the government to coerce people. Some of these cases are pathetic.

A photographer who says, "I'm happy to take pictures of gays of lesbians, but I don't want to do it for a wedding. It's against my beliefs."

A baker who says, "I'm happy to bake cakes. They don't want to bake -- and I'll bake it for gays and lesbians. I don't want to bake it for weddings." Individuals, now.

You now have the full power of the state and the full power of the NFL and all these groups you're talking about piling on for political correctness. I think it's a big issue and one we're going to come back to again tonight.

JONES: I'm looking forward to it, and I just think about my uncles who are watching, who sat in at those individual businesses, trying to be served hamburgers. And I think history's going to be on our side.

In the CROSSFIRE tonight, CNN commentator L.Z. Granderson, who is a gay rights advocate, and we also have Virginia's former attorney general, the great Republican, Ken Cuccinelli. I want to go to you first.

I mentioned my uncle. This is big for America. We're trying to figure out this balancing point here.

KEN CUCCINELLI, VIRGINIA'S FORMER ATTORNEY GENERAL: Sure.

JONES: You thought about this a lot. Help me understand. If somebody is sincere in their religious beliefs, stipulate to that--

CUCCINELLI: Right.

JONES: -- what's the difference between them putting up a sign that says "No gays allowed" versus "No blacks allowed"? Sincere religious beliefs about it. What's the difference?

CUCCINELLI: Well, because you do get to test that. And we've had Religious Freedom Restoration Act at the federal levels for over 20 years. Newt Gingrich voted for that back in the day. We've had it in the states since 1996 when the Supreme Court said it doesn't cover the states. Arizona has had this law on the books for 15 years. And none of the parade of horribles, and most of what you said is just utterly inaccurate. And most of that parade of horribles--

JONES: We didn't have a civil rights movement?

CUCCINELLI: Which could happen today. Which -- no, no, no, I'm talking about Arizona. I'm talking about Arizona and your characterization of what's being attempted there.

The last 15 years they've had a law in place that would supposedly allow what you've described. And what has happened?

JONES: Nothing in Arizona. Nothing in Arizona.

CUCCINELLI: Well, one thing is happening now in that part of the country. And Newt Gingrich uses the baker and photographer, and those are real-world examples.

JONES: None of those happened.

CUCCINELLI: So what? Those folks have the opportunity, the plaintiffs who assaulted, legally, these people who just want to be safe--

JONES: Oh, that's terrible.

CUCCINELLI: -- in their religious practice. You're OK with violating people's faith?

JONES: Here is my question to you.

CUCCINELLI: Just so long as I understand.

JONES: Here is my question to you. What is the difference -- what is the difference between a business owner saying "No blacks are allowed here" versus "No gays are allowed here"?

CUCCINELLI: Show me -- show me a religion that says that.

JONES: Oh, well, there are plenty of religions.

L.Z. GRANDERSON, CNN COMMENTATOR: -- at one point.

JONES: You want to get in?

GRANDERSON: I'm sitting here and I'm trying not to jump over here and go, "What are you talking about?" But I'm going to do it anyway. What are you talking about? That is just straight up plain nothing but discrimination. Any other way of phrasing it.

CUCCINELLI: So you're OK with, if someone sincerely has a religious belief, violating those religious beliefs?

GRANDERSON: Let's just be real clear.

CUCCINELLI: I'm trying to get--

GRANDERSON: This isn't about religion. This is about the Christian faith. Because no one is saying why is there a war on Ramadan? No one is saying why is there a war on Yom Kippur. This is about Christianity.

CUCCINELLI: That is a great point.

GRANDERSON: Let me finish. Let me finish.

CUCCINELLI: Reference used by Muslims to protect themselves.

GRANDERSON: Allow me to finish. Allow me to finish. Now, once you decided -- and I guess we can safely agree, this is basically being driven by the Christian faith. I'm looking at the Bible, and I'm going "Where in the Bible does Jesus say no to people?" He's always bringing people in.

So are you really using this as an umbrella of your religious faith? Are you wrapping your homophobia around the Bible and trying to find scripture to justify your homophobia? Just because you're uncomfortable with something does not mean it is against your religion.

CUCCINELLI: Just because you disagree with me doesn't believe -- doesn't mean I'm a homophobe.

GRANDERSON: Well--

CUCCINELLI: Will you agree to that? Will you agree to that? Will you have an intellectual disagreement that isn't personalized?

GRANDERSON: We know your history. You've made several remarks over the years that I would classify as homophobic.

CUCCINELLI: Can you have a discussion without personally--

GRANDERSON: I would say that you personally -- I would say you personally are probably a homophobe.

CUCCINELLI: So you walked in at the beginning of a discussion and said I'm a bigot, and so my position doesn't count?

GRANDERSON: Based upon your--

CUCCINELLI: Doesn't count?

GRANDERSON: Based upon your series of comments you've made--

GINGRICH: Wait a second. I just want to comment for a second, because I'm, A, fascinated by your total mischaracterization of Islam. Because, in fact, in Iran, for example, you can be executed. B, I want to explain--

GRANDERSON: How did I just characterize Islam when I was talking about the Christian faith?

GINGRICH: Because you said this is about a Christian island (ph). Much more ruthlessly anti-homosexual.

GRANDERSON: I was talking about today in Arizona.

GINGRICH: Let me ask -- let me ask you something.

GRANDERSON: Go ahead. GINGRICH: Because you aggregated yourself something remarkable. You get to decide -- you get to decide whether to apply the power of the state or whether this person is genuinely religiously motivated or not genuinely religiously motivated. Let me give you an example in the real world.

GRANDERSON: OK.

GINGRICH: Should a Catholic priest be coerced into performing a gay marriage?

GRANDERSON: Is that what you're asking me?

GINGRICH: Yes.

GRANDERSON: No.

GINGRICH: Why not? It's an act of discrimination.

GRANDERSON: Because it's--

CUCCINELLI: He's licensed by the state.

GRANDERSON: Because that -- he's practicing his faith. And to me that is very, very different when you're talking about a nonprofit, religious, secular church and someone representing that versus a public business that's actually utilizing taxpayer dollars to help sustain itself, pays taxes--

GINGRICH: Under the same model, should Massachusetts; Washington, D.C.; and Illinois have outlawed Catholic adoption services?

JONES: That's not what happened. I mean -- I mean--

GINGRICH: That is what happened.

GRANDERSON: They said if you're taking state money -- if you're taking state money, you've got to play by state rules. That's what they're saying.

CUCCINELLI: Do you want those rules to be your rules?

GRANDERSON: No, no, I want those rules to be the rules--

CUCCINELLI: Despite the fact that they undercut a fundamental precept of this country, and that is religious freedom.

GRANDERSON: What you have to understand, or at least remember, is that religion was to not define the Constitution. Constitution is what defines space for religion.

So if your religion is going against the Constitution, it doesn't -- it's not the other way around. It's not going whether the Constitution doesn't fit my religion so I want the Constitution to be changed. No. It's the Constitution, and you have to -- we all agree to operate under the guidance of the Constitution, which allows us to have religious freedom.

CUCCINELLI: Well, realize -- understand we're not talking about a constitutional issue. Let's be really clear about that.

GRANDERSON: We're not?

CUCCINELLI: No, we're not. In 1990 the U.S. Supreme Court said that Native Americans in a religious ritual using peyote, a drug, were not exempt from the general application of the drug laws. The first amendment didn't protect their right to do that. And that's why Newt Gingrich and others in the federal government passed the Religious Freedom Restoration Act. This does not -- this doesn't reach the level of constitutional. It is a fundamental principle. I agree with you on that.

I have a couple of things I want to point out, too, that you guys said, that you might like.

JONES: Luckily, we have long show.

CUCCINELLI: You have to, to get to that point.

JONES: We're trying to balance -- we're all friends here. We're trying to balance some important issues in the country. My right to have a religion and your right to have me not impose my religion on you.

And you have some concerns. Let me tell you I've got some concerns, too. And that is the runaway nature of this once you open up this religious exception. Now a lot of people who are on your side don't explain this very well. I want you to hear Anderson Cooper, trying to get a good answer on this question earlier today, and I want you to respond to this.

(BEGIN VIDEO CLIP)

ANDERSON COOPER, CNN ANCHOR: Your law, under this law, if I'm a Catholic loan officer, say, in a bank, and I don't like the idea of loaning money to a divorced woman, because Jesus spoke against divorce very strongly, under your law, I could refuse to do business with an unwed mother or a divorced woman, correct?

UNIDENTIFIED MALE: I don't know where you're getting your hypotheticals from, sir.

(END VIDEO CLIP)

JONES: Now, here's the deal. You're going to ask us about--

CUCCINELLI: One of my comments goes to this. And it goes to an earlier comment.

JONES: How do you--

CUCCINELLI: You used your uncle example. I think an easier -- an easier way for people to think about a distinction that's appropriate is in public accommodations, which was your example. I walk into a restaurant. Shouldn't matter whether I'm red, white, black, brown, or purple, heterosexual, homosexual. Shouldn't matter. Public accommodation, you just serve everybody that walks in.

But what we're talking about with the baker and with the photographer and other things, those are private engagements, one-on-one engagements.

JONES: The law in Arizona -- I know where you're going, but this law is much broader than that. Are you concerned about this law? Are you concerned about this law?

CUCCINELLI: Let's just say -- let's just see if we can reach an area of agreement on a concept. Can we at least agree that those two are different? I would agree that, if you're going to open your doors to do business that is a perfectly legitimate requirement -- let's use the right words, not merely expectation but requirement -- that you have to serve whoever comes in versus if you have a private engagement, one-on-one, for instance to be a photographer at a wedding--

JONES: I would say--

CUCCINELLI: -- baker at a wedding--

GINGRICH: We've got to take a break. I'm sorry. We're going to be back. But this administration's attacks on religious freedom are part of a larger pattern, of course.

When we come back I'll show you something unbelievable that happened today. America's top law enforcement official actually told the state's top law enforcement officials it's OK to disregard a law you don't like.

(COMMERCIAL BREAK)

GINGRICH: Welcome back. In the CROSSFIRE tonight, L.Z. Granderson and Ken Cuccinelli.

You're not going to believe what Attorney General Eric Holder is encouraging state attorney generals to do -- ignore the law. He is telling the nation's top law enforcement officers they can pick which laws of their own states they will and will not enforce. He argues they can disregard their own state laws banning same-sex marriage.

And this is how he justified it to them today in Washington.

(BEGIN VIDEO CLIP)

ERIC HOLDER, ATTORNEY GENERAL: This, after all, is the essential duty to which all of us as attorney generals have been sworn. Not just to win cases but to see that justice is done.

(END VIDEO CLIP)

GINGRICH: See, that's a fundamental misunderstanding of his job. The arrogance of a single person becoming the definer of justice undermines the entire system of constitutional law. It is the duty of the attorney general to uphold the law, not judge the law.

Now, in that context, how would you feel if an attorney general who just heard that went back home, happened to be a racist, and said this is terrific. The attorney generals told me I shouldn't enforce laws I don't like. I will no longer in my state enforce any antidiscrimination law about race. I mean, wouldn't you at that point be enraged?

GRANDERSON: If I were to take it out of context, then yes, sure. But I don't think that's what Eric Holder was saying and neither do you. What you're saying -- what we both know to be true is that this has already been decided by the Supreme Court. And what is happening in our own country right now --

KEN CUCCINELLI, FORMER VA ATTORNEY GENERAL: What's this in that statement?

GRANDERSON: The Defense of Marriage Act.

CUCCINELLI: OK. If you want --

GRANDERSON: So we are talking about --

CUCCINELLI: It matters way beyond that.

GINGRICH: That's a federal act.

CUCCINELLI: Do attorneys general have to decide what --

(CROSSTALK)

GRANDERSON: No, no, my point is that the law has already been decided. And what he is acknowledging and what the Supreme Court has already said is that this is not constitutional. So, any state law that doesn't jive with the constitution, once again, that is the head law. Not religious law and not just state law. The state laws have to be consistent with the Constitution. The Defense of Marriage Act has been proven not to be consistent with the Constitution. Any state version of the Defense of Marriage Act is null and void.

CUCCINELLI: OK. But the marriage amendments are quite different from DOMA.

GRANDERSON: How?

CUCCINELLI: And the Supreme Court explicitly didn't decide it at the same time.

GRANDERSON: Right.

CUCCINELLI: Can we talk about Attorney General Holder's role?

For the first year and a half of his tenure he defended DOMA. Now, that tells me as a lawyer that he believed there was some basis, you don't have to think you're going to win, but you have to have some basis, rational basis, to defend the law, to ethically go into court and do it.

So, he obviously believed that he did. So, then, when the flip happened --

JONES: The Supreme Court --

(CROSSTALK)

CUCCINELLI: No, he attacked -- he backed out of the defense of DOMA, presumably with the request of the president who, mind you, supported same-sex marriage when he was running for president and somehow it became obviously unconstitutionally, I'm not quite sure where it became obviously unconstitutional. But as an attorney general, not merely a lawyer, but someone obligated to defend the law, as Newt Gingrich said, he somehow felt that there was no basis all of a sudden to defend that which he had a basis.

JONES: I'm going to shock you. I'm going to shock you. We actually agree on something. You shocked us last time. I'm going to shock you this time.

You're actually in the same situation that the attorney general is talking about. There was a law that you couldn't defend --

CUCCINELLI: Under our state constitution.

JONES: Thought was wrong and you didn't defend it.

CUCCINELLI: Right.

JONES: But you also made sure someone else did defend it.

CUCCINELLI: Right.

JONES: I think that's actually the right answer. So, believe it or not --

CUCCINELLI: And that is the way -- his problem compared to mine is he had defended it. So, he demonstrated that he believed there was a basis to defend.

Let me tell you where we are going, though, because it now has happened in Virginia. We now for the first time in my understanding in American history have had an A.G. who didn't just back out of defending a law, but then actually turned on his client and attacked it, without allowing for someone else to come in and defend it.

JONES: Listen, I want --

CUCCINELLI: That's a very serious abrogation of the rule of law.

JONES: Listen, I think we are going through a very, very tough transitional period. And I think in the minds of a lot of people in the country, these are now Jim Crow laws and I think people are having a difficult time figuring out how to defend or whether to defend Jim Crows. I understand that.

But I want to get back to this law on the books right now --

CUCCINELLI: You guys are conflating everything down to just sexual orientation.

JONES: No, we are conflating down to equality under the law and how to get there. But, listen --

(CROSSTALK)

JONES: I want you to respond to somebody else. We are lucky to have you here. I want you to respond to somebody else. You know, Rush Limbaugh is against me on this. I want you to hear your response --

CUCCINELLI: On what?

JONES: You'll hear.

(BEGIN AUDIO CLIP)

RUSH LIMBAUGH, RADIO TALK SHOW HOST: The governor of Arizona is being bullied. She's being bullied by the homosexual lobby in Arizona and elsewhere. She's being bullied by the nationwide drive-by media. She's being bullied by certain elements of corporate America in order to advance the gay agenda.

(END AUDIO CLIP)

JONES: Now, listen, I want you to respond to that. Do you think that Jan Brewer is being bullied? Jeff Flake who is against marriage -- senator from her state is against marriage equality, he's against domestic partnerships, against hate crime legislation, he's got 100 percent ratings from the Family Research Council, he's against this law. McCain is against this law.

Are they a part -- are they bullying Jan Brewer?

CUCCINELLI: No, but a lot of people are. A lot of other people and these are -- this is what -- this is the political correctness stampede. Once they, whoever they are that control much of the voice and by that I don't mean actual control, I mean influence control, and they start rolling the steam roller and it's cool to go that way, well then, you know, Katy bar the door. That's what's bearing down on Jan Brewer.

And I think Newt Gingrich is probably right with respect to what Jan Brewer will do, but it isn't what she should do.

JONES: You think she should sign this bill into law?

CUCCINELLI: Yes.

GRANDERSON: You would sign the bill into law?

CUCCINELLI: Yes. An amendment to a law that's been on the books for 15 years? Yes.

Now, what we've seen courts rule on ways that deny people religious freedom, yes.

GINGRICH: Let me give you the example, though, of why this whole thing by Holder really is troubling and is a very dangerous precedent. The people of California voted in a referendum in defense of marriage but millions of people.

The attorney general of California said he would not defend his clients' vote. The Supreme Court then ruled that no one else had standing to defend it.

Now, that means if you elect somebody to be your lawyer, which is what the attorney general of a state is, they have a deep obligation to enforce the law. If you're the attorney general of the United States, I think if you think a law is bad, you and the president can go to the Congress to change it. I mean, this is a fundamental threat.

I know you guys think this is all hyperbole.

GRANDERSON: No, no --

GINGRICH: This is a fundamental threat to our constitutional --

GRANDERSON: I have had my issues with Attorney General Eric Holder. I have.

CUCCINELLI: I'd like to talk about the process outside of just gay marriage. You know? Because --

GRANDERSON: Listen, this it was started because of marriage equality. So, I mean -- to remove --

(CROSSTALK)

JONES: We've got to go to commercial. Last word.

GRANDERSON: To remove the example of marriage equality, to make the argument when the whole thing was started by marriage equality I think is disingenuous.

(CROSSTALK)

JONES: OK, stay here, stay here.

We're going to keep fighting after this break. I want you at home to weigh in on today's question. We've been talking about this. If you were the governor of Arizona, would you sign or veto this bill? I want you to tweet sign or veto using #crossfire. We're going to give you those results when we get back from the break.

We also are going to have our "Outrages of the Day", including an outrageous new insult from Dick Cheney, when we get back.

(COMMERCIAL BREAK) JONES: Now it's time for my outrage of the day. You know, I wish Dick Cheney would be like his former boss and just go paint pictures some place.

But no, last night he embarrassed himself by claiming that President Obama would, quote, "much rather spend money on food stamps than he would on a strong military or support for our troops."

No. For every dime we spend on food stamps, we still spend about $1 on the military. Now, personally, I would rather have my tax dollars go to hungry kids and not Halliburton. But under Obama, we still spend more on our military than China, Russia, the British, Japan, France, Saudi Arabia, India, Germany, Italy and Brazil combined. That sounds like a pretty strong military under Obama to me.

GINGRICH: I'm constantly outraged by the stunning incompetence and dishonesty of some government bureaucrats. In Los Angeles, veterans affairs employees decided to do something about the backlog of requests for medical exams some dating backing to 2001. That would be outrageous by itself.

But according to "The Daily Caller", the solution these bureaucrats came up with was to simply delete people's files from their computers. Poof. The backlog magically disappeared, so did the veterans, so did any semblance of integrity and frankly, some of those bureaucrats ought to go to jail for what they did.

JONES: That is pretty outrageous. So, anyway, I have no comment. That's horrible.

Let's check on our "Fireback" results. If you were the governor of Arizona, would you sign the law or veto it? Right now 12 percent of you say sign, 88 percent say veto.

What do you two think about those results?

CUCCINELLI: It's a good thing I'm here. I think the most intolerant portion of our society today is the left. And you're seeing that intolerance steam roller aimed right at Jan Brewer. She's got a hard decision to make this week. The right thing to do is defend religious freedom and sign the bill.

JONES: Well, listen, I want to thank both of you. We're out of time. We got a lot more to talk about.

I want to thank, L.Z. Granderson. And I want to thank you, Ken Cuccinelli.

From the left, I'm Van Jones. Please veto it.

GINGRICH: From the right, I'm Newt Gingrich.

Join us tomorrow for another edition of CROSSFIRE.

"ERIN BURNETT OUTFRONT" starts right now.