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The Supreme Court on Thursday issued two landmark, 5-4 decisions supporting same-sex marriage. The court struck down the federal Defense of Marriage Act and invalidated California’s Proposition 8 law that recognizes only heterosexual marriage. As a result, the federal government is prompted to rewrite regulations to make benefits available to same-sex couples, and California may resume gay marriage. We explore what the rulings will mean in the Washington region and around the country.
- Nancy Polikoff Professor, American University's Washington College of Law; and author of "Beyond (Straight and Gay) Marriage: Valuing All Families under the Law" (Beacon Books)
- Harry Jackson Senior Pastor, Hope Christian Church, Beltsville, Md.
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, why one neighborhood group in the District has asked for a moratorium on bars and drinking establishments in their corner of the city. But first, a historic day for same-sex marriage at the Supreme Court. The highest court in America ruling 5-4 this morning that the federal Defense of Marriage Act is unconstitutional.
MR. KOJO NNAMDIThat law enacted in 1996 denied federal benefits to gay and lesbian couples married in states that allow same-sex marriage. Two jurisdictions in our region, the District of Columbia and Maryland, have already legalized the performance of same-sex marriages. But today's court ruling will reframe debates about sexual orientation and discrimination in every state across the country, whether they currently recognize same-sex marriage or not.
MR. KOJO NNAMDIJoining us to measure the local and the national impact of this ruling is Harry Jackson. He's the senior pastor of Hope Christian Church in Beltsville, Md. He joins us by phone. Harry Jackson, thank you for joining us.
MR. HARRY JACKSONHey, Kojo. Thank you for having us.
NNAMDIAlso joining me is Nancy Polikoff. She's a professor at American University's Washington College of Law and the author of the book "Beyond (Straight and Gay) Marriage: Valuing All Families under the Law." Nancy Polikoff, thank you for joining us.
PROF. NANCY POLIKOFFThank you, Kojo.
NNAMDIIf you have questions or comments for us, you can call us at 800-433-8850. How do you expect this debate over same-sex marriage in the United States will evolve now that the Supreme Court has declared the Defense of Marriage Act unconstitutional? 800-433-8850. You can send email to email@example.com or send us a tweet, @kojoshow. Nancy Polikoff, there are two jurisdictions in our region that have legalized the performance of same-sex marriages. What does today's court ruling mean for people who live in the District of Columbia or in Maryland where same-sex couples can be legally married?
POLIKOFFWell, it means very simply that the federal government must recognize those couples as married, and in our area, that will have widespread significance. Obviously, there are so many members of our community who work for the federal government, and now, their same-sex spouses will be treated as married for all federal consequences of marriage. But, of course, that will be true for people all around the country whose same-sex marriages will now be treated as marriages under federal law.
NNAMDIWhat does it mean for places like Virginia where same-sex marriage is not legal?
POLIKOFFWell, we know one thing is for sure. It does not require Virginia to begin marrying same-sex couples. So the immediate impact in Virginia will really be nothing. I think we are going to continue to see over the next several years questions about whether same-sex couples who have married where it is legal but live in a place that doesn't recognize their marriage is what the federal government will do with that.
POLIKOFFThere's a very complicated set of differences under law between some matters that are addressed by whether the marriage was legal where it was celebrated and some that are answered by the question of where the couple lives. So those are questions that will continue. But Virginia will not have to marry same-sex couples as a result of this ruling, at least not immediately.
NNAMDIThe Washington Post story notes that DOMA was passed at a time when same-sex marriage was not legal anywhere in the United States or in the world for that matter. It's now legal in 12 states and in the District of Columbia. How significant was it for those state and local jurisdictions to begin moving forward with their own laws despite what DOMA set out at the federal level?
POLIKOFFYes. Well, DOMA has never said what states could or couldn't do. In other words, DOMA never stopped states from allowing same-sex couples to marry, and that is something, as you know, that we see increasingly often across the country. And I think there is continued momentum for that in several states so that it will -- that will continue to be possible on an increasing basis.
POLIKOFFBut the federal government usually says nothing about who must be allowed to marry and that is part of why this statute was struck down because it is so unusual for the federal government to come in and say some people count as married and some people don't count as married. Historically, the federal government follows state law on that, and state laws have some differences about who can marry.
NNAMDISpeaking of state law, the court also paved the way for same-sex marriage to resume in California. What exactly did the court determine when wiped out the state's voter-approved ban on same-sex marriage, Proposition 8?
POLIKOFFWell, what the court did was the following, and this was an expected result in this case. The litigation against Proposition 8 at the federal district court level, the trial court level resulted in a decision by a trial court judge that Prop 8 was unconstitutional. And the state of California chose not to appeal that decision to the 9th Circuit Court of Appeals. And so it was appealed by a group of people who were the people who wanted Prop 8 passed in the first place.
POLIKOFFAnd really what the Supreme Court has said is if your group of people that put an initiative on the ballot or a referendum of any sort, that doesn't give you individual citizens who did that the right to appeal a case through the court system. If the state decides, OK, a court has said this is unconstitutional and we are not going to appeal, so it was simply a decision that throws the case back to the district court ruling in California, which said specifically as it could only affect California that Proposition 8 was unconstitutional.
NNAMDINancy Polikoff. She's a professor at American University's Washington College of Law, the author of "Beyond (Straight and Gay) Marriage: Valuing All Families under the Law." She joins us by phone as does Harry Jackson. He is the senior pastor at Hope Christian Church in Beltsville, Md. You can call us at 800-433-8850 or go to our website, kojoshow.org, and join the conversation there.
NNAMDIIs your life going to be affected by the Supreme Court striking down the Defense of Marriage Act? Are you among those who were not eligible for federal benefits until today's ruling? 800-433-8850. Harry Jackson, where to from here for you? You were among those who fought the passage of laws in D.C. and in Maryland to legalize same-sex marriage. Now, the Supreme Court says the federal Defense of Marriage Act is unconstitutional. How do you feel about the court ruling today, and where do you go from here?
JACKSONWell, I appreciate, first of all, Nancy's analysis is very clear. I think we can't really do much about this from the perspective of DOMA. I think for me as a member of the clergy, someone who's celebrated traditional marriage, I think I've got to say we've got to go back to strengthening the foundational institution of marriages. We understand it and have taught it biblically. I think the idea now that we're going to be able to -- we're going to decide these things state by state as it go forth.
JACKSONAnd that there's going to be some help that comes to my side from the Supreme Court obviously is no longer there. So I think it's going to be like with the flipside of the life argument where years after Roe v. Wade now, you're finding that a lot of people are valuing life. They're valuing human conception because people have deep seated beliefs, have made their own ideas more positive and attractive.
JACKSONSo I think we're going to celebrate traditional marriage, and there's a lot of interventions, a lot of help we need to give our people who believe the way I do. So I've got to accept what the court says, and now, we're going to have to continue to train folks who believe like we believe to lift up their banner and promote traditional marriage among people.
NNAMDIHarry Jackson, how would you explain this shifting public opinion on this issue? Same-sex marriage was a matter that was put up for referendum in Maryland. Last year, voters supported it. But back in 1996, you had members on both sides of the aisle and a Democratic administration all for the Defense of Marriage Act. What do you think accounts for the shift in public opinion?
JACKSONWell, most recently, you will recall that Illinois blocked an attempt to have same-sex marriage passed just a few weeks ago because of African-American clergy. I think in recent years we're dealing with the fact that there's a moneyed lobby for same-sex marriage, and that my side has not as aggressively or winsomely articulated the benefits of traditional marriage, why this is better.
JACKSONAnd in some ways, you've kind of gotten our -- I'm going to say this way -- our theological argument out to a secular group who doesn't care about our theology. What they want to know, the American public, is why is this bad for our culture or why would doing it your way be better, and I don't think we have presented the best possible case over the last decade in that regard. So we've got to go back, celebrate traditional marriage, promote it and talk about the fact that it's a good thing.
NNAMDIBut you've in a way answered this part of my question already, but I'll ask it anyway because starting with the president of the United States, a lot of people say their perspective on this issue has evolved over time. You still seem to be maintaining your own position. But has it been shifted, nudged, affected in any way by what's been taking place over the course of the past few years and by this Supreme Court decision? Are you evolving in anyway whatever towards this position?
JACKSONOh, I love the way you ask questions, Sir, very profound. I have always resented the following defamation of character for some of us traditionalists, if you will, there's a difference between human rights and what I'm going to call, oh, out-and-out bigotry around this issue. I'm not for discrimination against anybody on any terms as it relates to this, who's married and what place and can their marriage be accepted in another place.
JACKSONWhat I have been concerned about is how terse the discourse has been, and that I see -- I believe in a set of marital codes that are anchored in Scripture and a certain morality that I do not think is condemnatory or prejudicial towards some one group of people. And I think the thing that's changed is I believe that same-sex marriage activists have won on a fairness mantra that has not been -- we haven't had a real chance to present our side in my opinion appropriately. I hope I got that out.
NNAMDIYou did. Harry Jackson is the senior pastor at Hope Christian Church in Beltsville, Md. He joins us by phone as does Nancy Polikoff. She's a professor at American University's Washington College of Law and the author of "Beyond (Straight and Gay) Marriage: Valuing All Families under the Law." We turn now to Dana in Chevy Chase, Md. Dana, you're on the air. Go ahead, please.
DANAHey, Kojo. So my question is basically this: I was wondering who wrote the dissenting opinion, and what argument did the dissenting opinion put forth?
NNAMDINancy Polikoff, the dissenting opinion on DOMA.
POLIKOFFWell, there were several different dissents written on DOMA. One was of the opinion that the -- essentially as a procedural matter that the case could not be appealed by the Bipartisan Legal Advisory Group of Congress and that since the federal government did not wish to disagree with the lower court opinion, in fact, it believed that DOMA was unconstitutional, that there really wasn't a case before the Supreme Court that it should be decided -- deciding at this point.
POLIKOFFHaving said that, Justice Scalia did go on to say why he thought DOMA is, in fact, constitutional. And -- but there was more than one dissent. The split was 5-to-4 along the lines that people originally anticipated with Justice Kennedy writing the majority opinion joined by Sotomayor, Kagan, Ginsburg and Breyer and with dissenting opinions by Chief Justice Roberts and by Scalia.
POLIKOFFThe lineup in the California Prop 8 case was a little bit different from that, but that's because the entire opinion turned on whether the case could properly be appealed by proponents of the initiative rather than anything substantive about gay rights or same-sex marriage. So, actually, you saw the justices mixed up among themselves on that issue.
NNAMDIWe got this tweet from Samantha, Nancy Polikoff. "How do you think DOMA, Prop 8 will influence trans' rights since they are marginalized by both rulings?"
POLIKOFFWell, to the extent that the Defense of Marriage Act says the federal government must recognize as married couples who are recognized as married in their states, the question of federal recognition of a transgender marriage will turn on whether the state recognizes that. Now, of course, there is language in Justice Kennedy's opinion about dignity and the intent to demean individuals that DOMA evinces. And so there is some language in here that would help anybody in their quest to have marriage recognized.
POLIKOFFBut there is nothing in the opinion itself that would require recognition of transgender marriages in a state just like there is nothing in opinion that, at least, immediately requires recognition of same-sex marriages. I think there is language about dignity and liberty that suggests positive development in the future for constitutional law purposes, but we won't be seeing that immediately.
NNAMDIOn to Jerome in Baltimore, Md. Jerome, you're on the air. Go ahead, please.
JEROMEThank you, Kojo, and company. I support the issue of same-gender marriage -- same-gender unions -- pardon me -- but object to the use of the word marriage. It has been defined for a millennia as that between a man and a woman, and I think it should maintain that definition. Same-sex unions should have every benefit -- social, legal and economic -- as the others. But I think a different term should apply. I really do.
NNAMDIOK. Jerome, thank you very much for your call. Let's go on to Mary in Bristol, Va., who, I think, has a similar sentiment. Mary, your turn.
MARYYes. Jerome stated -- I was thinking just exactly what I was going to say. Whatever happened to the idea of a civil union, much like they have, I believe, in the Netherlands where they are provided a civil union license document, whatever, that recognizes them as such and entitles them to the same rights and benefits as a married couple? It's never been explained to me clearly why in the United States we don't go with the civil union idea.
NNAMDIWell, we seem to have left that behind in the past decade. But I will allow...
MARYYeah. I don't get...
NNAMDI...both Nancy Polikoff and Harry Jackson to air their perspective on it. First, you, Harry Jackson.
JACKSONWell, I think for us, that became part of the reason many of us thought, if you will, as we thought there was a redefinition of an institution versus simply a matter of rights and that it would be sweeping consequences. I feel as though our politicians sold us out, that they didn't push, on Democrat and Republican, sides more of this delineation. And I think we would've had less, figuratively speaking, angst and concern over the issue had we approached it from a sacred versus civil or a redefinitional perspective from the beginning.
NNAMDINancy Polikoff, from a legal standpoint, is there even any point in talking about civil unions anymore? And do you think, as Harry Jackson indicated earlier in the broadcast, that the anti-same-sex marriage movement might get the same kind of inspiration, if you will, from this decision that the anti-abortion or pro-life movement got from the Roe v. Wade decision?
POLIKOFFWell, to answer your first question first, I believe that if a state decided to eliminate the word marriage in its civil code for all couples and instead of marriage licenses granted civil union or civil partnership licenses to everybody, that there would not be an equality problem in that state, and marriage could remain a term that was used by churches and synagogues and mosques in religious ceremonies and would be defined, as it can be today, however an individual religion wishes to define it, something the state has nothing to say about.
POLIKOFFI do think that if a state has two different statuses and the one for different-sex couples is called marriage and the one for same-sex couples is called civil unions, then the only reason for that differentiation is to convey the second-class status of same-sex couples. And the -- that is the kind of demeaning attitude and attitude that fails to grant equal dignity to the relationship of same-sex couples. And I don't think that in the long run, that it's going to remain constitutionally viable.
POLIKOFFBut I do think that marriage could be considered a term reserved to religion, with the state choosing a different word for what individual couples can do. As for the later question, I don't see it developing in that way. I think that the public opinion polls have been moving so substantially in favor of the marriage equality and with such steady progress that I think it unlikely that this particular decision at this point in time is going to lead to a reversal in that.
NNAMDITime for one more caller. Here is Shelby in Reston, Va. Shelby, you're on the air. Go ahead, please.
SHELBYHi. I'm calling because I'm actually getting married this weekend. And we're having our celebration in Virginia, but had to get legally married in Maryland. And I'm getting married to a woman who's been serving in the U.S. Army for 17 -- almost 18 years. And I just was interested to hear perspective on how this might affect service members in the U.S.
POLIKOFFYes. I think, again, all of those questions are going to be hashed out over the next period of time. For -- in the event that the statutes at stake determine your legal marital status based on the domicile where you live, the legal domicile where you live. If Virginia does not recognize it, it will be difficult to get the federal government to do it. But every single law will have to be looked at separately, and there are organizations looking at that right now.
POLIKOFFFor example, the National Center for Lesbian Rights in San Francisco is in a process of putting together and disseminating information about individuals' federal statutes, just to give one example of one that have -- will have enormous consequence on same-sex couples for immigration purposes. Generally, the place of celebration of the marriage is the place that matters to look at its legality. But that is not true for most federal laws, and there may even be distinctions among the laws that govern military members that make me reluctant to give an all-or-nothing answer at this point in time.
NNAMDIShelby, thank you very much for you call. I'm afraid that's all the time we have. Nancy Polikoff is a professor at American University's Washington College of Law and the author of "Beyond (Straight and Gay) Marriage: Valuing All Families under the Law." Harry Jackson is the senior pastor at Hope Christian Church in Beltsville, Md. Thank you both for joining us.
NNAMDIWe're going to take a short break. When we come back, why one neighborhood group in the District has asked for a moratorium on bars and drinking establishments in their corner of the city. I'm Kojo Nnamdi.
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