First ladies is an inspiring read, now available in hardcover and as an ebook. Here are a few of the book festivals we will be covering this spring on book tv. We will visit maryland for live coverage of the gaithersburg book festival with tom davis and mark frost. Along with david axelrod. We will close out may at books expo new york city, where the Publishing Industry showcases upcoming books. In june, we are live for printers row, including a threehour indepth program with lawrence wright. That is this spring on cspan2s book tv. The Supreme Court will hear arguments this week in a case involving samesex marriage. Coming up, we get a preview of the case with a group of attorneys. That is followed by conservative religious leaders talking about opposition to samesex marriage and how the Supreme Court decision could impact religious freedom. Later, a look at issues important to progressives in the 2016 president ial election. The American Constitution Society for law and policy recently hosted a discussion providing a preview of a Supreme Court case on samesex marriage that will be argued tuesday. The court has to decide if the 14th amendment requires states to issue licenses to samesex couples and if states must recognize marriages performed in other states. Among the speakers, paul smith successfully argued a 2003 four case that struck down a texas sodomy law. I would like to welcome you to our greeting on the Marriage Equality cases. I am Caroline Frederickson of the American Constitution Society. I would like to start by thanking jenner block for hosting us today. More so, for all the that it has done to promote lgbt equality. One of the many ways the firm has been recognized for its commitment is 100 raking ranking on the Corporate Equality index for over 10 years. Thank you to jenner, and congratulations for being such a force for justice. For those of you not familiar with the American Constitution Society, we are a National Network of lawyers and law students, judges and policymakers, who believe the law should be a force to improve the lives of all people. Acs works for positive change by shaping debate on vitally important legal and constitutional questions. And it is our mission to ensure fundamental principles of Human Dignity and individual rights so that everyone can enjoy their rightful place in american law. Many view the fight for lgbt equality as one of this generations most important civil rights struggles. Acs has worked to bring the realities of discrimination to the forefront of the national dialogue. We continue this work with our focus on Marriage Equality. In the fight for nationwide mission Marriage Equality, we have seen remarkable success. 37 states and the District Of Columbia now recognize samesex marriage. And the Supreme Court is poised to rule on the constitutionality of remaining bands on samesex marriage by the end of the term. This is the issue that brings us here today. The experts we have gathered here will discuss the history of the fight for Marriage Equality. From bowers versus hardwick to lawrence versus texas, and finally to the case that will be argued on tuesday. What are the ways in which the court could decide this monumental case . What will the potential outcomes mean for lb lgbt writes . . Dear to lead the discussion is amy howe, a partner with goldstein and russell in d. C. , where she serves as cocounsel at the Supreme Court. She is editor of scotus blog, covering the Supreme Court, and the author of a regular column about the court. She is a good friend to acs. Please join me in welcoming amy. [applause] ms. Howe i am going to start by introducing our panel. We will spend about an hour talking with them. Then we will try to leave time for questions. Im going to keep my introductions short. They are very accomplished, but i want to give us plenty of time to bask in their wisdom. They are conveniently arranged in alphabetical order. Steve sanders on my left, a professor at Indiana University school of law. She teaches constitutional law. He spent four years in private practice before becoming a professor. During those four years, he managed to sneak in arguments of his own at the Supreme Court. In this round of cases, he was among the councils on a brief on behalf of human rights council. Thanks to steve for joining us. On my right is paul smith, a partner at jenner. He has argued the Supreme Court on everything from the First Amendment to voting rights. Most recently on the clean air act. We are delighted to have him here today. There was a great talking points memo i would encourage you to check out. You can get the link at scotus blog. But he is the lawyer who set the stage for Marriage Equality with his victory in 2003. In lawrence versus texas. On my far right is sarah warbelow, the leader of a team of lawyers focused on state and local policies and coordinating efforts on lgbt issues. We are going to start with paul. We are going to talk about the cases and look forward at what the case is might mean for the future. Paul will take us back to 1972 and baker versus nelson. Then he will talk about how he got from baker versus nelson to the defense of marriage act during the clinton administration. Mr. Smith it is a long road. A lot of people ask how we get to Marriage Equality and the reality is we have been working hard for a long time. You want to have a starting point. That is bigger versus nelson in 1972, in which the court was asked to recognize the right of a samesex couple to marry. They dismissed the appeal. It was a one line rejection of the claim. This was at a time when we were not in the stone age, at least the middle ages of constitutional law. But there was still no extra protection against gender discrimination. There was recognition of a fundamental right to marry but no one in 1970 two would have thought that was relevant to a samesex couple. Most states still criminalized samesex relationships. This was not a surprising outcome. But it was a long struggle to get from there to here. Which for much of that time focused not on recognition of relationships or marriage. Simply getting rid of criminal laws that were a barrier to progress and a barrier to people leading open lives in our community. The first real effort to get rid of those was a full 14 years after baker versus nelson. That was unfortunately rejected by the court in a fairly harsh opinion. They said it was facetious to claim the constitution protected two men for engaging in sexual intimacy in the privacy of their home. The next thing was bauer versus hardwick, which required going statebystate to eliminate sodomy laws. Which was a reasonably successful effort meeting with the the lawrence case culminating with the lawrence case. Five 2003, we finally got rid of the sodomy problem. The argument could no longer be made that cant argue for Constitutional Rights for gay people because you could be put in jail. That case definitively got rid of that. It did two really useful things. It said you could no longer at that discrimination against gays is justified on moral grounds. For now on, we are going to recognize it is not up for the government to decide who you spend your life with. It is the choice of the individual. The other, it recognized that gay couples have the same lifelong relationships as everyone else and deserve respect. When you take those elements and put them together, the argument for Marriage Equality is strong. If you do not believe me, Justice Scalia said so at the time. We have been waiting since 2003 for the other shoe to drop. This is not an easy process either. But the movement at that time was to go back to the statebystate strategy to chip away at sodomy laws. First, successfully in massachusetts, just a few months after lawrence in 2003. It caused quite a Remarkable National focus on the marriage issue. But there was another great move forward on the. The next state in which success was had in terms of recognizing the rights of marriage for samesex couples was not until 2008. In between, there were Something Like 25 states passing amendments to prevent Marriage Equality from being recognized under state cant to shins constitutions. Places like maryland and washington. But then things started to move on marriage. We had some great victories in iowa, california. That was overturned in prop 8. The next decision was made by lawyers coordinating a lot of these things. We should go back to the Supreme Court. Their view was we should go back to the Supreme Court and challenge the defense of marriage act. In 2009, we filed the first challenge, the law that said if you are married in massachusetts, the federal government will not treat you as a married couple. The arguments against that were supposed to be pretty strong. State rights being protected against interference. That case took a while to get from filing to the Supreme Court. We ended up with a different case for reasons that are probably not worth six point. The windsor case was in 2013. In between, we had the challenge of prop 8 in california. Those cases wound their way up simultaneously, coleman aiding culminating in decisions two years ago. That is a brief history from 1972 to 2013. Ms. Howe you mentioned the prop eight case. The decision to file the case was not necessarily well received. Was the thinking that it was too soon . Mr. Smith the groups that had been working together for the last 20 years on the sodomy issue and marriage issue, these groups but there were only one or two states having Marriage Equality before the Supreme Court to nationalize it. On the other hand, the fact that proposition 8 was overruled meant that for people in california, there was no option aside from a federal claim. That was what everybody faced in 2009 after the election. I think there was some disagreement, strong disagreement, about whether to go ahead and asked the Supreme Court to recognize Marriage Equality. Everyone is aware of the problems caused by bauer versus hardwick. It took 17 years to get rid of that decision. It can make things worse in court if it had never gone there in the first place. That was part of the disagreement. I would say the disagreement over that issue, while emotional at times, has gone away. People Work Together effectively at litigating. The experts were very much experts preparing these cases by traditional roots. And i think there is a sense that John Davidson someone was going to bring that case, challenging prop 8. Those issues are behind us fortunately. Ms. Howe before we move on, i want to bring in sarah. She was the director for the Human Rights Campaign in 2009 and 2014. You were on the ground. Ms. Warbelow we were trying to do a dual strategy. One of the challenges we were facing was, how do we advance Marriage Equality in state that do not have constant touche and all amendments constitutional amendments, having these conversations from new hampshire, maryland, Washington State, and at the same time, fighting back against amendments . We were having an interesting trajectory. Disproportionately, as we worked with state legislatures, we were finding that many people have an unrealistic expectation of how quickly legislation moves as a result of successes in maryland and Washington State. Within two sessions, Marriage Equality was passing. Simultaneously, there were states putting constitutional bans on samesex couples wanting to marry. The only time we were prohibiting a van on couples marrying was in minnesota in 2012. That was the same year in which people voted in maryland maine and Washington State to affirmatively grant samesex couples the right to marry. That same year, we lost an amendment in north carolina. It was a really tricky balance to determine where to put resources. Not for the Human Rights Campaign, but for the lgbt community. We knew the Supreme Court would have to be the final arbiter. Ms. Howe if you could talk about prop 8 and windsor. In particular, windsor, the arguments were about to be revised. Mr. Smith the doma decision, we got an eloquent decision by Justice Kennedy who, while talking about state rights, approved the 14th amendment saying the government does not get approval over samesex marriage couples. The kind of disrespect that doma showed was intolerable under the 14th amendment. There is a great deal of language in it that proved useful since. The hoax about the case never really came to be. It turned out to be a fizzle in the outcome. The court said there was never a Appellate Jurisdiction and that it should not have gotten out of District Court. The reason being that the California Attorney general and governor refused to defend proposition 8 and a appeal the decision. While we had a great deal of discussion ultimately, the decision of the Supreme Court was that the people who did appeal, the private individuals who campaigned, did not have standing to represent california or have standing in their own right. Therefore, there was nobody before the court that had constitutional standing to defend proposition 8. There was nothing for them to decide. The effect of proposition 8 was not to create new laws. But because judge walkers decision was left in place, it means that proposition 8 was no more, and we suddenly had Marriage Equality in california. In that sense, it was a tremendous victory. The largest eight of the country says we have Marriage Equality i think that added a lot to the movement. Since then, of course, federal courts have gotten involved in which they were not beforehand. People started filing federal lawsuits all over the country. The day the windsor case came down and doma was no more people decided it is going to be a Supreme Court decision in about two years, three years. Cases started being filed left right and center. The federal courts saw the same things. They figured out where they thought it was going. You had a remarkable string of victories in federal courts starting in 2013. Something like 21 or 22 decisions in a row. Then several circuits all of firm those. Affirmed those. It looked like we might never lose a lower court case. Ms. Howe you were involved in the work as well. There were governors and attorney generals were not defending their states ban. Ms. Warbelow we encouraged attorney generals to refuse to defend lawsuits being brought in their state. We made the argument that bands on samesex marriages were unconstitutional. A state attorney general does not have to defend a lawsuit where the law in question is a clear violation of federal constitution. A handful of attorney generals accepted the proposition including california pennsylvania oregon, virginia which came about as a surprising election in which democrats swept the attorney general seat. The attorney general won by a small number of votes but was in a position to analyze what would happen. Each had to really dig in and make an assessment about what would happen if they refused to defend. The laws from state to state vary dramatically. Some have clear mechanisms for who gets to defend the lawsuit if the attorney general refuses. Others are silent on the matter. It really drew attention from the general populace. Starting to Pay Attention to attorney generals for the First Time Ever in a whole new way and saw what kind of power the positions can wield. Ms. Howe that brings us to october of last year. There were 22 decisions in a row on samesex marriage. The Supreme Court comes back to all these decisions. Were you surprised . Justice ginsburg warned us all. Were you surprised . Mr. Smith we all thought the court would grant a petition on the seventh circuit and fourth circuit. I was on the phone sunday with a reporter. Hopefully not someone in the room. [laughter] they might hold it for a week, but it just seemed like all of the federal courts were Holding State laws unconstitutional, which is almost always at prescription for up brand of for a grant of cert. It seems to us like they would have to weigh in. And for whatever reason, they decided they would wait. It turned out, we did not have to wait long. But it was an interesting moment. We thought it was absolutely in the bag. Ms. Howe but it happened eventually. So there are two questions. Mr. Sanders when the Court Granted cert, it raised a few eyebrows when it rewrote questions presented and asked two questions does the 14th amendment requires states to license samesex marriages. And another issue that has often been forgotten or underplayed in this issue. Second question, does the 14th amendment require a state to recognize a marriage that has been licensed in another state . Presumably, if the court answers yes on the first western, the second question is irrelevant. But that at least raises the possibility that the court may say no on the first question. And have to decide the second question. I floated the possibility that this might have something to do with some sort of conniving involving Justice Kennedy. That would be a modest approach a compromise that might appeal to Justice Kennedy. The fact that we will not force state to license, but they have to recognize licenses sister states have performed. They could simply be that of the cases coming out of the circuit two involved couples seeking recognition of existing marriages and two actually seeking to get married. In every one of these cases there have been two constitutional questions the denial of samesex marriage, is it a violation of equal protection . If so, what is the appropriate level of judicial scrutiny . Secondly, is marriage of fundamental right . If so, how does it apply to samesex couples . Is the idea of samesex marriage a different fundamental right or a matter of fundamental right to marriage and then you have to decide who gets access and who does not. Those are the issues that the parties address. I have read all the briefs. I have to say that i think the quality of the briefing varies. These were not written by law professors. That is a good thing, right . [laughter] mr. Sanders probably. They are not as rigorous as we would like, but it is fair to say that, in many cases, they do not meet the standards of jenner block for its Supreme Court briefs. That is not to say they are badly done. It is just to say that i think they vary. The petitioners all emphasize a mix of major cases under due process and equal protection personal stories about clients and their parties. Appeals to Justice Kennedy which are an inevitable feature in a case like this. And preemptive strikes against arguments based on states, and arguments that the sixth circuit had made in its decision. The respondents Briefs Center around caution, going slow that a state not be forced to plunge ahead into unknown consequences of legalized samesex marriages and what that means for straight peoples marriage. There are federal is, attempting to distinguish windsor. For as much power as it has had in getting us through lower federal courts, there are state instances thats a windsor was a federal say windsor was a federal decision and is premised on the decision that states decide whether to afford that dignity. These came about through votes of the people, through constitutional amendments. That is a problematic argument because these were intended to shut off debate and prevent future democratic action from revisiting the issue. Wheelock something away in amendment, attempting to decide it for all done. And the responsible procreation. As a result of lawrence and other cases states cannot make arguments based on morality or tradition. There is no indication that states are saying that gays make bad parents. What they say is that they want to encourage straight people who have the possibility of getting accidentally pregnant to get married. If it is reserving marriage for that purpose of encouraging responsible procreation. There is no evidence of this argument having been made in debates on constitutional amendments. It emerged in the 1990s and the writings of people like lynn bordell, when conservative opposition had to come up with something that sounded plausible as a state interest but did not seem to be disparaging gay people were making moral judgments. I think i will leave it at that. Ms. Howe paul, you may want to weigh in on states writes and a case that michigan relies on about whether or not it could ban affirmative action at universities. Mr. Smith as you often see in cases to overturn state laws, the people who say no say we should let the people decide. That is sort of the terms of the debate. There is a great deal of discussion about whether it is an issue best decided by the states. Or rather one that ought to be resolved nationally with the 14th amendment. The windsor case gives states a great deal of ammunition. There is a section about family law being reserved to the state. The federal government says they will accept whatever decisions the states have made. There is a great deal of language that can be pointed to. The other case you point to windsor, which was a discussion about how people have the right to use democratic power. And that vote ought to be respected. Mr. Sanders there is a 650 word passage of Justice Kennedy crows about the virtue of coming together. And that is being quoted back. In some of these briefs. Justice kennedy is the same person who in 1996, was also involved in amendment and had no difficulty whatsoever giving the back of the hand to it. In Justice Kennedys passage in schute, there is no citation of case law. All the other cases discussed in that case, race cases saying that just because something was decided through democratic process is not that we something that we look at less crisply critically. Mr. Smith he was a big believer in popular democracy. He thought there should be standing on the part of the proponents of the referendum to appeal because otherwise officials of california, the people who were supposed to be bypassed, have the power, by not appealing, to submit to popular will. He joins in dissent in that case. So he has that side of him. On the other hand, the popular vote argument is particularly weak. It does not seem like a very appealing argument. Mr. Sanders and it does not bode well for making law in the moment. These were constitutional amendments. A chest prevent future legislature from dealing with the issue. If people change their minds they have to go through a long process. This is not about true democracy. This is how people voted, but they voted in the way intended to settle the issue and make sure it did not come back. Mr. Smith maybe a little bit more on this other argument in the 90s. The argument that the reason why is because they are the only ones i can become accidentally pregnant that they are the only ones who can become accidentally pregnant and therefore, we have to have special channels. This argument has never seemed persuasive. One reason is because it is an impoverished view of what marriage is about. Simply forcing people to get married when they get pregnant. Marriage is about commitment, mutual support and love, a lot of other things. It certainly can be that. The argument that marriage is just about this is wrong. The second thing is, children are children, regardless of how they are conceived. If you are concerned about unmarried parents, why dont you let everybody get married . It is sort of bizarre and some level. They were hinting at but never quite say the problem with letting samesex parents get married is that the institution will be tainted or Something Like that, which they do not say out loud. But does anybody really believe that . That a few hundred thousand samesex couples get married and everyone will stop getting married . The only people that seem to want to get married now is gay people. [laughter] the number of unmarried parents is remarkably large. Mr. Sanders i think with this gets too is the states go to Great Lengths to say this may be overinclusive, underinclusive, post hoc it may not be completely coherent, but under williamson rational basis review, it does not have to be perfect. Lets not forget they got the new york court of appeals to buy this argument. As long as states are pressing for a deferential form of rational basis, they have to come up with the flimsiest possible rationale. But i do not think that is going to happen. If you look at the kind of analysis the court did in lawrence and winter windsor there has never been a rational basis for this kind of issue. Justice kennedy has said inquired carefully into discrimination. Mr. Smith they have to. What is at stake is the family you live with for the rest of your life. The line that is being drawn is not justified. There is no other kind of law where you could discriminate on that basis in a rational way. It does not lend itself to the kind of passive economic regulation. Mr. Sanders in the perry case, the argument was front and center. It got virtually no attention. The most attention it got was when Justice Kagen teased Charles Cooper about it, made a joke at his expense about that particular argument. There was not a lot of evidence that the court was taking the argument seriously. Ms. Howe there has been a lot of focus on Supreme Court decisions with antiDiscrimination Laws. But there is a real history that the court has had in addressing access to marriage than he that includes people who do not pay child support, permitting individuals who are in prison to marry while they are in prison. Mr. Sanders not procreating anytime soon in prison. Ms. Warbelow there is this really huge history. The Supreme Court has addressed marriage over 40 times. For a couple hundred years. And the court has consistently found that we have to give huge deference to individuals seeking to marry. They are not interested in picking apart who should and who should not have access to the institution. Mr. Smith sort of a quintessential individual choice, you would think. Going back to child where welfare, the notion that children are better off without mom and a dad. A lot of people country still believe. Does not have to be supported by social science. The more fundamental problem with that argument is that the kids are there any way. Samesex couples have a right to reproduce whether they are married were not and are doing that. Even if you thought they were not ideal parents if you believe married parents are better than unmarried parents you still do not have an argument for why they should not get married. Mr. Sanders and there are 400,000 children in foster care, awaiting a permanent home. 101,000 children awaiting adoption. Even if you believed that the optimal situation might be a mother and father, why would you deny these children the possibility of a loving home . Mr. Smith even more difficult is the fact that in many states they let gay people adopt. In michigan, there are two women with five special needs children. They are all living in the same household together. That is apparently ok with the state. But they still will not let them get married. What is the reason for that . Anyway, seems to be it is a difficult road. Once you argue that samesex intimacy is a bad thing, these arguments are really tortured that they have been making for the last 12 years. Ms. Howe assuming that the court agrees with you and goes with a standard of review that is more stringent, will they put a label on it . Mr. Sanders if it is a Justice Kennedy opinion, i think the state money is that it is in limbo. The court has not identified a formally protected category for heightened scrutiny since the 1970s. The gender cases, illegitimate children cases, and a fair number of commentators have said this whole idea of scrutiny is breaking down. People disagree as to whether it is a good or bad thing. And it may vary from case to case in how it is applied, but the idea of tiered scrutiny does not make any sense. Consciously or unconsciously, that seems to be Justice Kennedys attitude. It looks like intermediate scrutiny and all previous gay rights cases. Moreover, he applied a mixture of equal protection causes clauses. That is what we are likely to see here. I think the best briefs say they are together, this is something professors have written about that equal protection and due process are complementary and interact and interweave. I think the best way of thinking about it is we begin from the principle that this is a fundamental right, to marry, and apply Something Like equal protection. The burden shifts to the state to justify the denial of access to this particular fundamental right to this particular group of people. Mr. Smith looking forward, it would certainly be desirable to articulate that Sexual Orientation discrimination is presumably unjustified. Because we have seen since lawrence a whole long fight about things, different sentences with people engaged in samesex behavior, the florida adoption ban there are going to be cases, Public Employment cases, things like that, where it would be nice to know what the constitutional standard is when the government continues to discriminate. Mr. Sanders in the seventh circuit in the indiana case, where the law was defended by a zealous representative in the attorney generals office, even he conceded that there was no other situation in which government is involved against the individual other than marriage, where he believes discrimination is legal. Mr. Smith chuck cooper said the same thing in the Supreme Court. He said, i cannot think of any. Mr. Sanders in dont ask, dont tell, i guess the fear was, if we announce a heightened standard of review, what happens to marriage . Mr. Smith 2003, we were worried about marriage and military. Mr. Sanders now hit we have reached the ultimate thing everyone was worried about. There does not seem to be a lot of danger. Ms. Howe that sets up my next question. Are they going to strike up down these laws . If so, by what vote . Mr. Sanders i think the most likely outcome is a 54 decision with Justice Kennedy writing the majority opinion. I have read the chief justices dissent in windsor, and i am prepared to argue he left himself room to join the majority in the case. His opinion emphasized federalism and what the court was not deciding in windsor. But he said very little about what he thought the proper resolution was. I think there is a nontrivial chance that it could be 63 or the chief might write a concurrence with the idea of recognition of existing marriages without endorsing the idea of creation of existing new marriages. I think those are the likely outcomes. A slight possibility, not likely , a majority opinion saying yes on the second question but no on the first question. Or somehow hitting the first question, but i do not see how they could do that. Ms. Warbelow i agree. I think there is a strong likelihood of this being a 63 vote. Coming at it from a more practical level, the chief justice has relatively young children. I have children roughly the same age. We know the justices are human. Part of what they are looking at is their legacy. How their children and grandchildren are going to think about them in years to come. I think that significantly increases the likelihood the chief justice joins in the majority opinion in some way or another. Not necessarily 100 on point but at least in concurring. I think one of the areas in which we may see more concurrence would be on the level of scrutiny. If Justice Kennedy does apply heightened scrutiny to Sexual Orientation, i could see a scenario by which the chief justice concurs that samesex couples should have access to marriage but that it should be determined on rational review. Mr. Sanders if you straight out in the majority, that might not be a bad thing for clarity. As long as he did not write it in a modest way. Mr. Smith it will be 54 guys. [laughter] the chief justice said it would the ok for the federal government to overrule state decisions on marriage. He has the states making their own decision. It is a very difficult opinion. Mr. Sanders he would have to do some work, but is there some possibility he is thinking of institutional legitimacy . Does he want to be on the wrong side of history . Mr. Smith im not predicting he is going to do this. Ms. Howe we have all of this on video. [laughter] assuming all of you are correct mr. Sanders i have been good in my predictions in the past. Ms. Howe sarah, indiana was in the news recently. If there is a decision from the court, upholding the right to samesex marriage, will we see more of the state referendums . More backlash from business in states without laws protecting lgbt individuals . Ms. Warbelow but we are seeing is those wealth long opposed the rights of lgbt people being reinvigorated. This is not new. These attempts have occurred for decades. The attention they have received however, has changed because American Public opinion has changed. In the wake of indianas decision to pass a federal excuse me. A state religious freedom restoration act, which would allow a Business Owner to go into court and say that they have the right to undermine existing municipal Discrimination Laws that prohibit discrimination on the basis of Sexual Orientation, the areas you would expect to go and shop, commercial services, and claim religious belief, allow them to poke holes in the law for purposes of not serving lgbt individually or samesex couples in particular. And there was a huge reaction to indianas law, which passed and was later revised somewhat. In large part because American Attitudes have changed. 70 of the American Public responded to polling questions these were multiple polls saying they felt it was wrong to discriminate against samesex couples in public accommodation even if it was wedding related. Major corporations, from apple to angies list to walmart came out in opposition to these types of laws. On the other hand, some of low laws we are seeing are targeted, narrow. Michigan just recently passed needs one more vote to go to the governor a law that would allow adoption agencies to discriminate based on religious belief. Alabama is one vote away from passing a nearly identical law. Louisiana is considering legislation that would allow government actors to discriminate on the basis of marriage if they did not believe in that marriage or that the marriage violated their religious belief. That means if you have a judge who does not think a samesex marriage is legitimate, they do not have to grant divorce. There is nothing a state can do to sanction that person. Look, i think many of the bills are clearly unconstitutional. But that does not mean if they dont ask, they will not be in operation or a number of years before it reaches the Supreme Court. Ms. Howe there was a case out of new mexico. Do you want to talk about that . Ms. Warbelow the owner of elaine photography was approached by a samesex couple before new mexico had Marriage Equality, and they wanted to have a commitment ceremony. They approached elaine photography and said, we would like you to take pictures of the ceremony. The owner said, well, i actually disapprove of your relationship. It does not comport with my views on marriage, on family. Even though new mexico has very clear laws that prohibit termination discrimination. I do not think i have to serve you. Every step of the way, in new mexico court, they found in favor of the samesex couple. They said to elaine photography you are bound by nonDiscrimination Laws. You are flat out discriminating on the basis of Sexual Orientation. The u. S. Supreme court had the opportunity to take up the case and declined so to do so. I do not think we can read too much into that. Mr. Smith they didnt need both those things at the same time. Ms. Warbelow and i think there was an interest in seeing how courts would come out on these issues. There have not been many Supreme Courts to deal with the issue. We do not have federal laws protecting samesex couples from dissemination in public accommodation. There is not around a route currently. Mr. Sanders her claim was First Amendment expression. She said i do not want to make photography to make your wedding seem beautiful. It forces me to speak basically. I think that is a narrow argument. The idea that you are complicit in someones marriage by selling them a product that there is somehow a religious sensibility to justify exemption. I think we will continue to see these exertions by individuals like the ones in alabama who make these claims. The fact that the Business Community pushed back so strongly suggested that religion as the last refuge is not going to mr. Sanders these are small businesses. We saw that in indiana. But this has been the john b drumbeat that gay marriage is a threat to religious liberty. Mr. Smith they really feel oppressed that society is moving this way on this issue. Ms. Warbelow i want to push back on the idea that this is big business versus small business. There are a number of Business Owners who agree this is an appropriate. Including many who have come out saying, as a catholic, as a protestant i may not believe that samesex couples should be getting married but when i am opening my business to the general public, i understand my obligation is different in the public marketplace than church. Mr. Sanders of the briefs there are many maybe 10 that are worth reading. A prominent scholar of religion and grandfather of litigation has filed a brief in favor of samesex marriage. But also suggesting ways we have to face up to i think some of them have gotten the majority to Say Something about this. He spoke respectfully of people who have traditional views about marriage and empathetically who wanted to get married. Theyre making a play for something in the opinion that might give a nod to the idea that there are issues down the road that may need to be resolved even if the court grants samesex marriage. Absolutely, look already all of the major republican candidates for president have made this an issue in their campaign. He wrote an article, in the new york time in which he plays out this vision of opposition for Marriage Equality. It really suggests that individuals should be willing to oppose even if the Supreme Court rules and favor. They are all trying to attract a small subset of the American People. Those primary voters who are extremely social conservative and they are going to have significant challenges if they continue on this path when they end up in the general election. If you look at americans under the age of 40, 75 support Marriage Equality. Even if you look at republicans, under the age of 30, 61 support Marriage Equality. Theyre setting themselves up for potential success amongst their core base but will have problems in the general election. Theyre using this in the primary elections but when you look to the general election they dont want to be talking about this. They want the Supreme Court to handle it and take it off the table so its not up to the president to make this decision. They really dont want to have this issue be a lot alive issue. They can downplay discussing it later. Mitt romney keeps getting asked this question. We know americans have access to view it. Itll be one of those, what i like to have a beer with this person, kind of question. Essentially it has nothing to do with samesex marriage in this country but will be a character issue that people measure president ial candidates by. Do they believe in fairness and respect and do they respect my gay son or my gay nephew. Lets move onto the next set of questions. Do you support nondiscrimination issues across the country because that issue is still out there. I think were going to have to continue to talk about marriage because of state legislature needs to introduce bills that are an attempt to limit the scope of Marriage Equality within the state and carve out for individuals who dont want to interact with samesex couples who are marrying. I think theres going to be many opportunities for them to determine how they feel about samesex relationships. I wonder whether or not transgender issues are going to come up. After marriages decided i think another set of issues waiting in the wings is chan trans gender inequality. Itll be interesting to see whether or not those issues have enough momentum to get discussed. There are cases alleging that discrimination on the basis of gender identity is another set of sexual discrimination. They have determined for federal employment, jenner identity discrimination is discrimination. Now they are trying to look at private employees. As these issues progress theres going to be opportunity to go on record about these issues. Okay it is now time for your questions. I just want to throw out the possibility of a seven to decision. I know hes a very conservative justice but hes joining them minority of the court. Is that some sort of evolution on this issue . It doesnt mean he voted for the decision to deny it. I think its unclear what the actual vote was in alabama. It was unclear. If you look at his opinion its not ambiguous in any way. It still important to note when you are determining whether or not you vote, part of what theyre determining is the likelihood success. He might make an assessment about where they think they are going to land but he may not agree with that decision. Hes very strategic in his thinking in advance and i have to agree with that. There was an article across my desk of someone saying the dissent in windsor could have been a dissent in the other case in virginia. There was no difference in the arguments he made about gay marriage. What if youre not wrong and its a five for decision the other way. What would happen . All of the states that obtain Marriage Equality through a state legislative process, a state Supreme Court decision or the ballot box, will retain the ability to issue marriage licenses for samesex couples. It gets more complicated for states who have had a federal ruling, they have to go back to the District Court and say we want to start enforcing our ban on samesex couples being able to marry. Then it begins to be a bit of a gamble. I think we can presume that at least four of them will seek that right. There are significant if samesex couples who were legally able to marry, can they remain married . The federal decision to block that is very questionable. They may stop marrying people, at least for a wild. That will send it back to the political scene for some amount of time. It would be anxiety provoking to those thousands of gay couples who dont know if they will continue to have their Constitutional Rights. It can be a very painful experience for many people in the country. Many conservatives seem to believe that if the Supreme Court allows gay marriage nationwide it could somehow league to polygamy and people being allowed to marry their siblings. One could make a legal argument that that could happen. I think the slippery slope arguments are a dangerous trick but there the recourse of people who dont want to go through the difficult process of reasoning and distinguishing and everything that lawyers are trained to do. You begin with the principles that the court says theres a fundamental right to marry. Here is a group that is claiming exclusion from that right. What are the harms, what are legitimate reasons and justify those reasons. Its a completely different set of potential harms, rules, state interests involved in polygamist marriages and relationships and incestuous relationships. They will have two identify what their good reasons are for banning those marriages. Theres consequences for children and women and i think you can come up with a whole range of reasons why it would be more permissible from the issue of social harm and legitimate social interests to allow samesex marriage. That question will get asked. I dont think its plausible to say you cant draw a constitutional line between the two. Has windsor had any effect on the last two years . He certainly brought a beautiful opinion for his colleagues to be able to say here you go. Windsor means this but Marriage Equality has decided and whether or not it made it difference or they wouldve figured it out by reading the majority this has been a very interesting briefing. As someone who comes from this from the outside you can see that this is not going to the Supreme Court but perhaps itll go to this justice or perhaps his grandkids if he wants to leave a legacy. What would be the one or two arguments you would bring aiming first of all at kennedy and a few step back and look at this and you know the Supreme Court is a giant body, is this really a functional body that we have . Thats a lot of questions. I think first and for now most if you are going in and talking to society and to some extent even roberts, he made it clear that he cares a lot about the children. This was a primary issue for him and he clearly wanted to grapple with why should the children of samesex couples not have all of the same benefits and protection of the children of opposite couples. Why is it that in a state that a state that is not issuing marriage licenses to samesex couples and therefore ensuring that those couples have state and federal rights, why should those children be subjected to lesser protection than other children. In terms of the second question, could you repeat part of that again . I think its too simplistic to say that the courts come down to in this clear political way. We know there are many justices over the year who are put in place by a republican or a democrat with the expectation that they will vote on party lines. It traces back to the dignity conferred by the states that chose to marry the. For the chief, the emphasize that it is rational basis, the lowest requirement of justification. Able petitioners, i dont know maybe you explain why this is not a threat to religious liberty, something very concerning, civil marriage to a relatively limited locations were culture and religious institutions. That would be one guess anyway. If you think you might get in favor of petitioners maybe you explain why this is not a threat to religious liberty. This is something that chief is very concerned about civil marriage, relatively limited implications for culture and religious institutions,. The flip side of the question. If you are representing ohio, michigan, if you will, the most convincing arguments that you make to Justice Kennedy and others to say, week of states, should have the right to ban samesex marriage . As the was just saying, you talk about states. Able to have their own policies, particularly in this area. And then perfectly popular vote, something that is respective even more than legislative laws. The progressive recognition question. Again, i think they we will advocate for it. It seems with Justice Kennedy, we wont have a heavy hand of the federal constitution imposing something that not all states are ready for licensing samesex marriage, but we will say that a sensible, horizontal a sensible, horizontal federalism, the only thing that can sensibly work in a country like ours, states that have chosen to marry gay couples, a lot of the logic from the decision on windsor. Another sovereign cannot respect with one state has chosen and its people sovereignty to create. Again, will if the price of saying yes on that question as to say no i think it would be very english. Have a sense that he is concerned about his role in history. And so a vision for what his lasting contribution will be the whole idea that you were shielding the states, you dont have to do the marriages, you just have to respect the that county clerks, the county clerks, justices of the piece, the have to do that. Every other department of state justice. [inaudible conversations] kennedy again used the marriage license as having significance and what is creating the marriage, the dignity, the equality of the entitlements. He he attaches a lot of significance in that particular state action even as a practical matter. The idea that there are two kinds of marriages and one had to go out of state and find the hotel and other people dont. Very sensitive. But he is not overly concerned. Thinking about the substantial burden on women and abortion. There he does not seem to have difficulty. Part of the problem is he does not fully believe. What he does clearly believe , couples who have been married should have the recognition of marriage. Trying to channel what might be going on in his life. The legal director. Pretty sure have contractually obligated. It is a declaration and recognition. Very hard to write a decision. The arguments come down to the same state interest of the same constitutional provisions. I just dont see it. They broke down that way. They give a little extra time. Will find out in general, yes. Speaking of psychoanalyzing Justice Kennedy, talking about how he is reluctant. Suggested that he discovered that there wont be something decided on a casebycase basis. Some area does not want intermediate scrutiny. I dont consider myself enough of an expert on the entire body of Justice Kennedys jurisprudence to no whether he has a aversion to scrutiny. The way he has resolve these cases is not feel any aversion to comply with the conventions of tiered scrutiny. There seems to be addressed on the court away from the idea that tiered scrutiny is necessary and applying a tailored form of scrutiny to the particular situation. Some of the courts have done that to process liberty issues. The court has had cases, well anyway, the general drift of the court has moved beyond tiered scrutiny. It seems that Justice Kennedy is very comfortable. Interesting. First amendment jurisprudence, the strongest supporter of categorical thinking in those cases. Different than commercial scrutiny and restrictions. Cases were watered down. It is a curiosity. All right. Thank you and join me in a round of applause. [applause] next, conservative religious leaders preview this tuesdays Supreme Court case on samesex marriage and how the decision might impact religious freedom. This was hosted by america action. It is just over an hour. I want to start right on time. We are grateful for the folks at cspan coming in and filling and filming of the discussion today. We want to be conscious of their presence and we appreciate the audience. My name is rick scarborough. Myself and several others here are the originators of the marriage pledge. These two lawyers wrote the pledge. There are Copies Available for everyone they were stacked outside. They have a website defendmarriage. Org. You can read the pledge come to see the key signers. As of yesterday morning we have about 6000 signed the pledge. Weve been adding several hundred a day and all about will be discussing the course the course of the presentation today. We had two esteemed members of the press conference who could not be here because of the one case been out of the country. They both submitted a printed copy of our position. [inaudible] the high impact leadership coalition. Another, rabbi spero [inaudible] let me say that again in the microphone for those that are watching. We are passing out to hand out spirit won by jackson in europe today who wanted to give you his perspective on this. His tremendous black american leader, pastor of a local church in the d. C. Area and a champion for the cause of price and also a handout going around by rabbi spero, a rabbi out of new york city. He is president of the american caucus and you will see his remarks as well. As i mentioned earlier, my name is rick scarborough. Our first presenter will be dr. James dobson. He made a five minute video presentation and we will show that to frame the debate today and ill be the first visible visitor. I am james dobson and i appreciate you attending the press conference. I am unable to be there myself today, but my colleagues have asked me to address you briefly by way of this video. Collect really, we want to express some profound concerns and beliefs about the decision the Supreme Court will soon render regarding the definition or redefinition of marriage. Being detention of the family is one of the creators most marvelous and in during guest human kind. It has been honored in law and custom for more than 5000 years and every civilization in history has been built upon it. It has been the bedrock of culture in asia, africa, europe, north america, south america australia and antarctica. Admittedly, thereve been periods in history where homosexuality has flourished including the biblical cities of and gomorrah imaging reason during the roman empire. None of these civilizations survived. Only in the last few years as what has been called gay marriage and given equal status with biblical malefemale unions. In fact, today only 18 countries in the world recognize the legitimacy of samesex marriage. America appears to be on the verge now a dean number nineteen. God help us if we throw the divine plan for humankind on the ash heap of history. To put it succinctly, the institution of marriage represent the very foundation of human social order. Every enough value since im not a period in the two shins, governments, prosperity, religious liberty and the welfare of children all depend on stability. When it is weakened or undermined, the entire superset or can begin to wobble and that is exactly what has happened during the last 45 years. The American People didnt demand the change that is occurring. In fact, the population in 31 states voted one at a time on the definition of marriage and every one of them a firm that being exclusively between one man and one woman. Those proclamations were ensconced in their state constitutions. Now however, many of those popular elections are being overridden by imperialist federal judges who are changing the course of history. In mid2013, only 13 states have legalized samesex marriage. Now, two years later there are 37 and the Supreme Court seems poised to make it 50
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