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Supreme Court Weighs in on Same-Sex Marriage Cases; Supreme Court Agrees to Hear Religious Liberty Case; GOP Braces for Budget Score on Senate Bill; Supreme Court Rules Church Pre-School in Religious Liberty Case. Aired 10-10:30a ET

Aired June 26, 2017 - 10:00   ET



POPPY HARLOW, CNN ANCHOR: Top of the hour, 10:00 a.m. Eastern. Good morning, everyone. I'm Poppy Harlow. John Berman has the day off.

And we begin with breaking news out of the Supreme Court on the issue of same-sex marriage. The court ruling in favor, this morning, of same-sex married couples in a birth certificate casing that both members of the couple may be listed as parents on their child's birth certificate. The court also agreeing to hear a religious liberty case involving a Colorado cake artist who refused to bake a wedding cake for a same-sex couple.

Joining me now, Jeffrey Toobin, CNN senior legal analyst and former federal prosecutor. We'll get to those and a lot more in just a moment. But the significance of these two rulings on same-sex couples.


HARLOW: One ruling and one agreeing to hear a case.

TOOBIN: Right. But the ruling, the one out of Arkansas really illustrates that the Supreme Court has decided that same-sex couples have to be treated the same as opposite sex couples, when it comes to anything related to marriage. This was a case involving who could -- whether the state could ban same-sex couples from being on the same birth certificate for their child. The Supreme Court said no. It was 6-3. And the three dissenters were Justice Thomas, Justice Alito and the new justice, Justice Gorsuch. Which I think is an illustration of where Justice Gorsuch is positioning himself on the court, which is very much on the right.

HARLOW: So, how will this then affect the case that they've agreed to hear, which is the Colorado cake artist saying, it violates his religious beliefs to make a cake -- a wedding cake for a same-sex couple because they'd be intertwined.

TOOBIN: Well, you know, this -- it's always at the Supreme Court about the clash of rights. Is the right of same-sex marriage like the right to be free of religious discrimination? We have many laws on the books that say, a business cannot refuse to sell a cake or anything else to an interracial couple or to people of two different religions who decide to get married. That is sort of bedrock principle.

The question is, is refusing to sell to a same-sex marriage in the same category or should we, as a society say to religious people, you have the right not to participate in any way with a wedding ceremony to which you have a conscientious disagreement. That's the clash in the case.

HARLOW: The court also decided not to hear either of the Second Amendment cases in front of them, one of which was arguably so significant, it would have been the biggest decision since Heller.

TOOBIN: Right. The Heller decision, which was Justice Scalia's most famous opinion on the court in 2008, said that there is a constitutional right under the Second Amendment for an individual to own a handgun in his home. But, that left a lot of questions. What about larger weapons? What about conceal carry rules? And that's what this case is about -- whether conceal carry rules - prohibitions are constitutional.

There have been varying decisions from lower courts on that. And basically, what the Supreme Court has been doing is allowing those lower court decisions to sort of percolate around before they issue another big pronouncement about what the Second Amendment means.

HARLOW: Well, we have not heard yet, is whether or not the High Court will take up the travel ban case, the president's travel ban.

TOOBIN: Nor have we heard Anthony Kennedy's future career plans.

HARLOW: Indeed. Which is why you cannot go very far -

TOOBIN: I've knocked on it.

HARLOW: Jeffrey Toobin will stay with us. Thank you so much.

Those are the headlines out of the Supreme Court. This morning, a lot of headlines of course on Capitol Hill when it comes to health care, seven years of promises from Republicans may now come down to a few days of frantic arm-twisting and deal making. Senate leaders push pushing for a vote this week on their Republican health care bill.

A short time ago, President Trump weighed in. He wrote, "Republican senators are working very hard to get there, with no help from the Democrats. Not easy! Perhaps let Obamacare crash and burn!"

The fact is Republicans could use some help from fellow Republicans. Five Republican senators say, at this point, they cannot support the bill as it currently stands. That number could grow. As early as today, the Congressional Budget Office could release its assessment of the bill, those a bit critical numbers about how many people will and won't be insured as a result of this. What will happen to premiums as a result of this?

There's a lot at stake here. Let's go to Capitol Hill where we find our Susan Malveaux. Any indication that any of those five senators are leaning a little bit more towards yes this morning? SUSAN MALVEAUX, CNN NATIONAL CORRESPONDENT: There's no indication that they are going to be leaning toward yes. As a matter of fact, it is going to be a very tough sell. Many of the senators already have a pretty good sense of what the CBO score is going to look like or be like because of that super-secret process, Poppy, that you have the Senate majority leader, Mitch McConnell feeding a little pieces of that legislation to the CBO to have those pieces scored, that would come back and then they would tweak and work on it and massage it a little bit more.

[10:05:02] So, for some lawmakers, this will be a real head cake. For others, it could provide some political cover. I think the big question is just how far it's going to be from the House CBO score. That was devastating when it came to some headlines, some 23 million Americans over the course of ten years without health insurance coverage.

And so, those are the kinds of things that they are going to be looking for. Already, they are preparing for force trading, for amendments, as to debate moves forward. But it is going to be very difficult to actually unite the moderates and the conservatives in terms of what they need from this bill. Take a listen.


SEN. RAND PAUL (R), KENTUCKY: They've promised too much. They say they are going to fix health care. Premiums are going to go down. There's no way the Republican bill brings down premiums. It's a foolish notion to promise something you can't provide.

SEN. SUSAN COLLINS (R), MAINE: It's certainly going to be very difficult. For my part, I'm very concerned about the cost of insurance for older people with serious, chronic illnesses and the impact of the Medicaid cuts on our state governments.


MALVEAUX: So, watch what happens after the score comes out. The amendments that people will put forward, senators and whether or not there is wiggle room there. The president is weighing in on this debate, Poppy. This morning, really not acknowledging the real deep divides within the Republican Party, his own party, but blaming that all the Democrats.

His tweet this morning, saying, "The Democrats have become nothing but obstructionists, they have no policies or ideas. All they do is delay and complain. They own Obamacare!"

And, Poppy, we are told - CNN told for guidance that expect something, perhaps before dinner time. So, people will be eating dinner and watching.

HARLOW: Indeed. Suzanne, thank you very much. We appreciate it.

Senate Republicans try and lock in support, the support they need, those votes that they need on the Hill. The president is expected to take the temperature by phone. One source describes his calls that it is an effort to keep conservatives on board, but also, more listening and cajoling.

Let's get to MJ Lee who is on top of all of this. It doesn't help them that you have Wisconsin Republican senator, Ron Johnson, penning an op-ed in "The New York Times" this morning, about everything that is wrong with this health care bill.

MJ LEE, CNN NATIONAL POLITICS REPORTER: That's right, Poppy. Mitch McConnell has a pretty serious math problem right now. 52 Senate Republicans they need. 50 "yes" Senate Republicans to get this bill through the Senate.

And we right now know of at least five Senate Republicans who have publicly said no. That's of course, not counting any Senate Republicans who may have already decided that they opposing this bill, but just simply have not said so in public. So over the next few days, Mitch McConnell has to win over at least a handful of the Senate Republicans to get the bill through.

And I just want to quickly walk through some of the concerns that some Senate Republicans, moderate and conservatives have raised among the moderates in terms of what they want. The biggest issue is probably changes to Medicaid. They believe that the cuts that are made to the Medicaid program are too steep. They also want to make sure that they are preserving opioid addiction treatment coverage for their constituents. And also, Planned Parenthood funding is a big issue for members like Murkowski and Collins.

Now, in terms of what conservatives are pushing for, the simplest way to describe this is that they want wholesale Obamacare repeal. We're talking about getting rid of these Obama regulations -- Obamacare regulations, rather that they have been railing against for years. They also want faster phase-out of Medicaid expansion. More state flexibility to set policy, including the option to potentially opt out of Obamacare all together.

Now, the timing of course, Poppy, is very tricky. McConnell is still pushing for a Thursday or Friday vote. That's just a few days to make changes. And that's not to mention that the CBO report still has not come out, so very little time for Senate Republicans to make up their minds.

HARLOW: But isn't them thinking, MJ, from what I've read from a number of Republicans is they don't feel like going home over the break is actually going to help them. The jarring (ph) from their constituents is actually going to help them get this passed. I mean, Cornyn said, actually our drop dead date is August 1st. But does more time actually behoove them here or not really? Is McConnell right to try to fast track this?

LEE: Well, you know, this is a dynamic that we saw over on the House side. A lot of members would go home over recess and these town halls were incredibly fiery. Constituents coming up to them and saying, look, we do not believe that this House bill is good for us. Your constituents are certainly, the upcoming July 4th recess is something that they are concerned about.

But the other side of this, Poppy, is that for someone like Mitch McConnell, he looks ahead at the calendar and he's looking at more of a longer term view. That he believes that if he does not get it done before the July 4th recess, then you risk this dragging out for even longer, potentially past the summer recess. And there's been no indication so far that he wants this to go past the summer because there are other things that they want to focus on.

President Trump has made it clear that other than health care, he has other big ticket agenda items that he wants to move forward to. Everyone, every Republican in Capitol Hill wants to be done with health care.

[10:10:05] HARLOW: Yes. I mean, tax reform has gotten like no headlines, little attention, at least publicly. And that is a big one for them as well. They have a lot on their agenda.

MJ Lee, thank you for the reporting, as always.

Senate Republicans, as MJ said, want to get this done this week. What are their constituents going to think? Will they go home if the deal passed or not?

Also, debating a health care bill as the opioid crisis rages on, the former surgeon general joins me. He has called this a defining moment for America.

And government websites hacked with a pro-ISIS message. Who is behind it? The investigation ahead.


HARLOW: Senate Majority Leader Mitch McConnell with an all-out push on health care this week. Right now, the math is not on his side. Some five Republican senators saying they cannot vote yes on this bill as it stands and McConnell can only afford to lose two votes to get this thing through.

[10:15:04] Keep in mind it could be complicated even more today when the Congressional Budget Office releases its score.

On all of it, we have a lot to discuss. Amanda Carpenter is with us, our CNN political commentator and former communications director for Senator Ted Cruz, CNN commentator, Bakari Sellers is a former Democratic member of the South Carolina House and Lynn Sweet, the Washington bureau chief for the "Chicago Sun-Times". Good morning to you all.

And Amanda, let me begin with you. Walk me through how you get those five senators to yes because it's not the same thing that gets them there and then, how do they go home to their constituents and explain heading into the midterms and even on the recess that they vote this week, that they support this despite the fact it does not give immediate relief on premiums? AMANDA CARPENTER, CNN POLITICAL COMMENTATOR AND FORMER COMMUNICATIONS DIRECTOR FOR SEN. TED CRUZ: Well, I'm going to say something that might be controversial. I don't think Mitch McConnell is truly intent on getting to yes. - I'm going to be really politically calculating. They waited too long to pass this bill, to get any of the reforms in time that rates reset this fall. Say they pass the bill right now, President Trump signs in August. The rates are still going to go up because the legislation doesn't have time to take effect. Most of the good things that happen don't happen until 2018.

So, I'm not sure that Mitch McConnell wants to do this. What I am pretty frustrated about is this moderates coming out and saying, well, I don't know. I don't like these cuts. You guys voted for repeal umpteen times when there weren't any cuts for it. And now, you decide that you can't get on board with it? I think that's, frankly, it's pretty pathetic. But if you do want to get to a yes, here is what I think conservatives and moderates have to do to have something to sell to constituents this fall.

You think about it like this. President Bush took care of the elderly people for prescription jobs. President Obama took care of the low income. They have to do something for the middle class that are getting hammered with the high premiums and deductibles. There's little things you can do with the tax code to tweak it -- how they buy insurance, it equalize with employers. That would give them a win. But unless they have a win for the middle class to go home and talk about in August, this thing isn't passing.

HARLOW: So, Amanda with her controversial statement that McConnell might not actually want to get this done. Bakari, I'm interested on your take on that. And also, would you warn people not to underestimate Mitch McConnell, a guy who has been known to get things like this done, who knows his conference inside and out.

BAKARI SELLERS (D), CNN COMMENTATOR AND FORMER SOUTH CAROLINA HOUSE MEMBER: Well, not only warn you not to underestimate Mitch McConnell, but also, don't overvalue the courage of the Republican Party and those Republican members that are holding out. I mean, we saw the same thing in the House where the bill actually moves further to the right and most moderate Republicans just simply caved in.

I truly think that it's going to be very difficult to get a bill done this week. I do think that they will have until August 1st to get it done. But most Republicans don't want to go home and deal with their constituents. The fact is, this process has been flawed, maybe fatally, since the beginning.

Compare it to Obamacare. Let's just talk about the process. Obamacare didn't pass until Christmas Eve. So, it had a full year. It was debated on the floor for a full month. It had over 100 hearings and it included over 150 amendments from Republicans. That is vastly different from what we are seeing here today. That's one of the major reasons that you are having a problem with this bill and you're having a lack of support from practically everyone.

HARLOW: Lynn, talk about the political calculation here. Because if the special election showed us anything, it's that you know, the president's declining poll numbers did not hurt these Republicans. Are they looking at their votes, especially on health care as you know what will define them in their re-election chances?

LYNN SWEET, WASHINGTON BUREAU CHIEF "CHICAGO SUN-TIMES": What we don't know is if in 2018 that President Trump's ability to elect himself transfers to other candidates. In the meantime, we are dealing with an issue where people have personal stakes as opposed to just dealing with anger against Washington, which is more general or not thinking Congress's credibility.

What's going to happen under the GOP plan is that states will have more power. So, even Republican senators that are doubters, you can't guarantee what will happen until you know more what your state governors want to do. So, if you say one way premiums can go down is if you don't have the ten essential services as defined by the Obama administration included in health insurance. So, that did and could have an impact on prices current and in the future. If a state decides not to have those services, that is a very big policy debate.

But here is the most important thing I want to put out there to watch for that could affect the politics. A lot of people don't realize it, but when you talk about the middle class as Amanda did, people who end up in nursing homes, who were in the middle class, who have ran through all their money that they saved their lives for and worked for, but just lived longer than they thought and didn't think there'd be in a nursing home.

[10:20:01] People will soon realize that it's Medicaid that helps keep grandma and grandpa or your aunt and uncle or if you are older, your own parents in nursing homes, relieving you for better or worse to some financial responsibility.

HARLOW: You have Republican governor of Ohio, John Kasich saying just yesterday on this network, the Medicaid dollars do not go far enough. In his words, Amanda, "Nobody would want to live under that."

CARPENTER: Yes and this is where we are really running into a problem. Republican's message, full Obamacare repeal, root and branch all the way on the campaign trail. What this bill really is, a massive Medicaid reform bill? And what we are seeing play out now is, what do we want Medicaid to actually be and do. We are seeing this sub debates come in. Well, what about the people in nursing homes? What about the people who are getting drug treatment?

We need to have an honest national discussion about who the Medicaid program should be serving. Obamacare screwed it up for a lot of states because they had a big mandate saying, you have to cover this massive new population of people and it didn't give them all the money to do it.

And so, that's why governors like John Kasich are screaming right now, because they can't come up with the money to provide care for the people that they put on the program. This is the squeeze that Obamacare created. And we are not going to get out of it unless we clearly define who these programs need to be serving. Is it drug addicts? Is it elderly people? Or is it the low income. You know, disabled people that -


HARLOW: Quickly -

CARPENTER: -- Because it can't be all things to all people.

HARLOW: I got to get to the breaking news in just a moment, but Bakari, final thought on that because you would admit that the Medicaid --

Stay with us, guys. Thanks for our panel. We have some breaking news out of the Supreme Court. Let's go straight to Jessica Schneider because I believe we have a decision. Jessica, is that right?

JESSICA SCHNEIDER, CNN CORRESPONDENT: We do, Poppy. A flurry of activity here at the Supreme Court today, as we do await a potential decision on the travel ban. That, not coming yet however, but the big case that the Supreme Court has issued an opinion on today involves a church in Missouri that applied for public funds to put a rubber playground surface on its own playground at the church.

Now, this is a big win for that church. Trinity Lutheran out of Columbia, Missouri. The court in this case saying, that a Missouri - the way the Missouri program was applied that the fact that they said no, a church cannot get state funds for this particular grant, that would go to the safety of a playground at the church, the court saying that that is unconstitutional under the free exercise clause of the Constitution. So, this is a big win for that church in Missouri that wanted those state grant funds to help make their playground safer.

This was actually a 7-2 decision. This was written by the Chief Justice Roberts. It was joined by the new justice on the court, Neil Gorsuch, who was also joined by Justice Hagen, among others. But what's interesting to note is that shortly after this opinion was issued, there was a dissent. It was read by Justice Sotomayor. The dissent was also joined by Justice Ginsburg, saying essentially that by allowing state money to go to a religious institution, particularly here in Missouri that this in fact, violated the separation of church and state under the Constitution. It is very rare for a justice to read a dissent from the bench but this is something that Justice Sotomayor is doing. She was one of the two who dissented in this opinion.

You know, people who opposed this decision, who wrote against it, whether under amicus briefs, the American Civil Liberties Union railed against this, saying that this could further open the door to state's funding religious institution. This is a very minor case where the church in this case said, this has nothing to do with religion. This is just about a state grant that would help make our playground safer, but many of these institutions -- the ACLU, saying that if you open the door to this, it could further open the door to state funds being used for religious purposes.

And which interesting to note here is that this provision by Missouri, the provision that does not allow state funding to go to religious organizations, this is the type of clause in the Constitution that three quarters of the states throughout the nation have. So, it's unclear as to how widely this case will be applied. As for now, it only applies to this particular case where the church will, in fact, get state funding. But many people worrying that it could go even further to state and taxpayer money essentially, Poppy, funding religion. Back to you.

HARLOW: Jessica Schneider, fantastic reporting on this breaking news out of the High Court and context as well is very important.

Let's go back to Jeffrey Toobin, our CNN senior legal analyst. So, the question here is how much does this blur the line between church and state? Justice Sotomayor thinks so much that she was one of two dissenting voices who read aloud her dissenting opinion from the bench, which is rare.

TOOBIN: It is unusual. It's an indication of strong dissent. But on the other hand, this is a court that is usually deeply polarized with four liberals, four conservatives and Justice Kennedy. Two of them were liberal justices, Justice Stephen Breyer and Justice Elena Kagan, voted with the majority here. So, this was a 7-2 opinion and one that may or may not have big implications.

[10:25:12] There's a very interesting footnote in the opinion, which says, this case is only about playgrounds. It's not about funding. It's not about anything bigger than that. And I think that was an attempt by the court to say, look, let's take this one at a time. This is a case where it really looked like discrimination against a religious school, but we are not deciding that, you know, all state tax money can now go directly to churches.

HARLOW: It is about using, basically, rubber tire material to make playgrounds softer and safer for children. Now, the fact that they have that footnote in there, how does that affect how it is used as precedent going forward. Because Jessica importantly noted, three- fourths of the state have this marked in their state Constitutions?

TOOBIN: I think it indicates that there will be a lot of litigation about stuff like this. And the courts will struggle to figure it out. And more liberal - judges and justices will say, no, we don't want any sort of funding of taxpayers' dollars to go to religious institutions. More conservative judges will say, no, we don't want to discriminate against religious schools.

I mean, these lines are very hard to draw. Just take an obvious example. If there's a fire in a church, the fire department goes to put it out. That does not -

HARLOW: And that is taxpayer funded.

TOOBIN: That is taxpayer funded. No one disputes that. However, no one disputes also that the priest cannot be paid with taxpayer dollars.

HARLOW: Right.

TOOBIN: So when you start getting into - HARLOW: A very fine line.

TOOBIN: Their courts are full of cases like this.

HARLOW: Two things we don't know yet.

TOOBIN: Yes, ma'am.

HARLOW: Will the court take up the travel ban case.

TOOBIN: Correct.

HARLOW: And will Justice Kennedy serve another term?

TOOBIN: You know it is 10:26 a.m. in the East now. The justices are just about done making their announcements.

HARLOW: OK. Hold on. The Supreme Court has decided, Jeffrey Toobin that it will take up the president's travel ban case. This is very significant.

TOOBIN: Not surprising.

HARLOW: Not surprising, so now what?

TOOBIN: Well, I have to -- I'd like to see what the order says, because did they issue a stay? Is the stay still in effect? What's the briefing schedule? Are they going to hear it in the fall? -


HARLOW: Meaning that they cannot take effect. Because it will be -

TOOBIN: Correct.

HARLOW: -- a long time before they hear it and before they issue a decision. This is not happening overnight --

TOOBIN: Well, Poppy, I just like to raise one of my favorite hobby verses here, which is, who says the Supreme Court has to take three months off every summer. No other federal judges do. You don't. John Berman is of course derelict and not in today, but he's allowed to take a vacation. --

HARLOW: There you go, one vacation for John Berman --

TOOBIN: But the Supreme Court takes it as a matter of course that they get three months off in the summer. Why shouldn't they hear the travel ban case right away?

HARLOW: Indeed. That's the question.

TOOBIN: So, we will -- wait what the order says.

HARLOW: We're going to read to this order right now. And we are going take a quick break. We'll be back with our Jeffrey Toobin with all of those details, next. Stay with us.