Welcome to inside story, im ray suarez, a majority of americans live in places where samesex marriage is legal. A cluster of places are fighting back, hard. In recent arguments several justices seemed to wrestle with the change that is in their power to make, to essentially redefine the old idea of marriage between one man and one woman for good. John arthur was dying of a. L. S. And wanted to list his husband as his surviving spouse, but the state of ohio wouldnt let him do that. The two men were married in maryland where it was legal. The attorneygeneral decided to use the challenge from the two men. He has been joined from couples from four other states, where samesex marriages are banned. Bus met with a couple in detroit. Reporter april and jane share four adopted children. All of them have special needs. Noel jp is six, jacob 5, rihanna 4 and riley 2. They consider them both mum, but they are not legally recognised as a family. Where does that represent changes where one has rights and the other doesnt . Theres simple things. I legally cant sign a permission slip for either of my boys to go on a school outing because im not the legal parent. That is because michigan is among 13 states that bans samesex marriage. No legal union means no violent adoptions. The two together had to adopt two children separately. The biggest one is in a case where something happens to either of us, one dies or becomes legal cap acetated, we cant make decisions, the children dont automatically go to the other parent the nurses sued michigan over the adoption code in 2011. In 2012 they amended the lawsuit to challenge the ban an gay marriage, a measure that voters approved in 2004. Dana is the attorney. Our position from the beginning has been that as much as you want to respect the will of the people, not so much that you disregard the civil rights of minorities, and our position has been that you dont get to individuals. Reporter after a 2week tile a judge ruled in favour of the women which opened the door to gay marriage in michigan, 300 couples tied the not. It was a wonderful day, so much joy and happiness. After three hours the state filed an emergency appeal and the mayor stopped. They didnt get married, both wanting to wait on the outcome of their case. In jan they heard that the high court would hear their case. Fight . When we set out to do this we set out to educate the public about our life. So that people can say they know a gay couple. They know a les by job couple family. And to show that we were not that much different. Reporter what began as a personal fight for the michigan couple can lead to a ruling impacts thousands of same text couples nationwide. One of the married couples at the center of the debate joins me now. They married in the district of columbia in 2010. Welcome to the programme. Thank you for having us. If the court rules in favour of the copetitioners is the fight over, is that it or will there be little hurdles and traps and snares over the place . Theres be backlash. If the court rules in favour of the couples. They will say the constitutional marriage are not constitutional and everywhere needs to be afforded the same opportunities as civil law. What im anticipating, we are seeing around the religious backlash in the states where you opened up talking about where legislators are trying to put forth the amendments saying if this happens, well let religious institutions to be able to discriminate and not accept that this is law and omply to it if you were offered a job in new orleans, dallas a good good job can you take it. Are there some places where it will be taken care of or are some places just too complicated. Thats the problem we have now. We would do what we did in d. C. When we were engage in 2009 marriage was not legal. We were going to have to go to connecticut to get married. We decided instead to fight for the right to marry. So i would say if i was norte nate enough to get a job in an area that did not have marriage protections, thats the path wed follow. Wed fight for our right. Do you know what is tricky. Lets say the Supreme Court ruling comes down the way we expect it to, and marriage is a law of the land. The challenge is that in a place like georgia and new orleans, and over 30 states in the country, it is legal to fire someone from their job simply because they are gay. We could be married. Get married. On a seat. Go to work on monday. Put a picture of our spouse on the desk and be fired, because l. G. B. T. In this country do not have comprehensive protection from discrimination. We have so much work to do even beyond marriage. We have comprehensive nondiscrimination policies that would protect people. As you heard talked about, theres a gathering backlash. Doesnt sound like either of you think its over even if the Supreme Court makes a ruling tearing down the amendments as they exist in the states. No, and the thing that we say is no one has won civil rights. Right now we see the Supreme Court two years ago gutted the voting act. A law set in stone. We see in 2015 Voter Suppression south. While we know we are looking forward to a positive did you suggest from the Supreme Court, and for them to be on the side of history and equality, at the vigilant. The gains are so fragile that risk the Voting Rights act they. Fragile, so we thought. For 50 years there it stood. Here we are in 2015 at a time we thought we would never have to talk about that. Here we are. Its an important lesson, understanding that because you win rights today does not mean that theyll be there tomorrow. The same can be said for a womans right to choose. So not to sound paranoid, but you are suggesting its possible that samesex marriage could be rebrand and he could fight the battle again. History taught us you have to remain vigilant and as Martin Luther king said to make sure the moral ark of the yun strers moves towards justice. Democracy is about growth and ebb and flow. We are not going to rest on our laurels and pretend one or two Supreme Court rulings is the be all and end all. When it gets down to the quality of life and lived experience, this ruling that may grant marriage is not going to change the discrimination and conditions, and the sytematic discrimination through the law that is happening for l. G. B. T. People now. Theres so much that we need to do. During the argument the justices wrestled with the idea that it was courts and legislators that pulled this off, not voters. Would is reassure you if as Public Opinion is changing there could be ratification in the courtroom. What makes this important is the colleagues decided that marriage bans are unconstitutional. In the lower courts. In the lower court. We heard the argument before. With proposition eight. We heard the arguments before, theres no merit on the i suggest side other than to say we dont like samesex couples, they dont have anything to do with the law. Thats the basis for the argument. The fact that it is the courts deciding this in some areas, and important. It will not quell me from issue. One of you talked about i want to hear from you on this. If we end up with a narrow ruling maintaining the patchwork, different marriage laws in different states, can we live with that longitudinally out from today. The court had denied taking it. Everyone has been appealing. All the states have been trying to appeal and make the Supreme Court decide the reason the Supreme Court took this case, it was an entire district that pretty much said the same thing. They said we have to get in and decide now. The point for them is to make a decision so theres no confusion. Great to have you both with us. Next, the other side of the debate. After losing so much ground in the fight state by state. What now. We talk with a lower whose job it is to make the cause against samesex marriage. Its inside story. Tonight on inside story, we are look at the battle over samesex marriage, at the outset in the 1990s, those that wanted to keep marriage as between one man and one woman won over and over again. In recent years the tide turned and decisively so. Where does it leave those that fought samesex marriage. Robert is with a legal group founded to protect religious freedom. Welcome to inside story. Thank you for having me. The battlefield changed shape. What is the fight now. What is a plausible set of victories now that samesex marriage is legal in so many states of the union . We dont know what the Supreme Court will do. Theres no shortage of commentators that predicted the Supreme Court will impose samesex marriage in all 50 states, doesnt mean it would be legitimate. The Supreme Courts only power is in the legitimacy, it was once recognised and that depends on making legally principled decisions and not political compromises. If they make law in this area, if they rule broadly in a way that really puts pressure on the states that have bans on the books now, what does what does it mean to say the ruling is illegitimate. Wont it have the force of law. Theres nothing in the text, structure, logic or history of the constitution to allow the Supreme Court to redefine marriage for all 50 states, we saw legitimate decisions, and the u. S. Supreme court said black americans or black people were property, not citizens. The American People and the president rejected that decision as illegitimate and did everything within their power to undo it. Through legislation or giving the Supreme Court opportunities to reverse itself. If the Supreme Court crosses this line, and imposes this new creation of samesex marriage on all 50 states, the American People should treat the decision as legitimate and do everything within their power to resist it. Especially after new justices come onto the court in later years. I understand the idea about people resisting it, opposing it. Once regs trars are giving licences, and people are starting homes and filing income tax returns as married couples. Is the game kind of over. You may not like it or want it, but its here, and we have to make accommodations, dont we . I think we saw the decision with row v way, the Supreme Court trouble thought it was settling with that. We know from history that nothing could be further from the truth. It polarized the division between american citizens, and we have seen incrementally continued eragency of abortion laws throughout the United States because of the vigilance of the Prolife Movement in the United States. If the Supreme Court were to cross the line and redefine marriage, youll see the same polarizing division in the country, more so than now. And the Faith Community and people outside the Faith Community recognising that marriage is defined by what it is and is not subject to redefinition by a government. Those citizens will resist the imposition of samesex marriage laws to the extent theyll resist being required to recognise marriages in whatever way they can. Customarily, the full faith and credit clause of the constitution has given states the ability to recognise each others marriage. I have been married for a long time, lived in five different state and none asked if i was legally married in another state, they accepted i was. When gay people are married in illinois, connecticut and california, and move somewhere in the union, will they continue to be challenged in that way or does this vacate the fall faith and credit clause and the custom of marriage recognition. That is a question before the Supreme Court will a state that does not recognise samesex marriage nonetheless have to recognise memories from other states. The full faith and credit clause has been subject to the exception if a certain law of one state violates the policy of another. That doesnt have to recognise it. In this case, what we will see is the Supreme Court will decide that question. The Supreme Court will have a say on that. Going further down the road. What we will see is an erosion of any religious believe. We have seen it, and we dont have a 50 state mandate from the Supreme Court yet. The states will face the question of how do we protect the religious freedoms, the freedom of speech, of conscience of its citizens who have a legitimate, you know, non legitimate reason to resist recognising samesex marriage based on religion or other reasons that existed for millennium robert, great to have you with us on inside story. Will the Supreme Court end legal skirmishing. Can it allow the state laws to stand. We dig into that with law schooler gareth epps. Its inside story. With me now a professor of law at the baltimore law. Could the Supreme Court, by the way it rules, leave us still with a Patchwork Quilt of samesex marriage laws across the country. You know, that, it seems unlikely that they wont issue a ruling that covers the whole country about marriage. The question more people are wondering is whether the ruling will be worded in a way that states can push back, permit discrimination in areas other than actually being married. Fight a rear guard action as suggested. We see in louisiana, where theres freedom of conscious bill that says governments can refuse to recognise. Well see some of that. How long it will last, i dont know. It will depend on how the court words the decision. If its tough to get a majority doesnt the court sometimes narrow in order to get the fifth or sixth vote. The question is what is in the mind of Justice Anthony kennedy, and his mind is broad and poetics. Its likely that he will write the opinion, and it will talk about the dignity of samesex marriage couples, but in more poetic than practical terms and theyll have to be litigated down the road. It sounded as if some of the judges felt uncomfortable in taking this big step. I thought the justices were wrestling with the historic roll and Justice Kennedy ask the a number of questions about that. As the argument wore on, the problem was that michigan and the other states had little to offer in terms of an argument why samesex couples should be excluded from marriage. In constitutional law reasons are the coin of the realm. If you cant give me a reason, a good reason, then i win. Thats the way it works. The state of michigan began to say well we dont think marriage is about emotional commitment, we dont think its about love or biology. Justice kennedy reacted negatively to the line of argument, to the point he almost called the lawyer from the states to drop it. At this point people began to think he would be more comfortable being in a 54 majority before we go, you heard roger gannon of Liberty Council before the break talk about resistance if the Supreme Court opens the way for samesex marriage. What form could it take . The form of official resistance, where a bill can say the texas courts cannot entertain. It can take legislative form, religious freedom protections or the form of individual refusals to comply. The fact of the matter is once samesex marriage enters a community, samesex couples are so visible, its harder to organise resistance to the phenomenon than people think it will be because your neighbours are there and they are married said. And they are not scaring you. Very quickly, does Public Opinion play a role . Absolutely. Public opinion plays a role and played a role in the lower courts. The fact that samesex marriage won 22 out of 24 proceedings is important to the justices. Great to see you. Thanks. Gareth epps teaching law at the university of baltimore. What is propelling the nation to samesex marriage . My take after this. Five families work lowwage jobs in 21st century america. Companies have had to lay off thousands of workers. People cant afford to keep up with the cost of housing and food. At work, and at home, they look for the strength to keep going you dont retire. My family is looking at me. Its still like theres no way out. Medical bills. Student loans. Daycare. Credit cards. Can these americans young and old,