More than two dozen states still define marriage as between one man and one woman. In Virginia, the hotly debated issue could now head to the Supreme Court. Virginia’s ban on same sex marriage was struck down as unconstitutional by the US Court of Appeals in July, but last week Prince William County asked for a stay on that ruling. Virginia’s attorney general has now asked the Supreme Court to review the case. We hear from a conservative legal advocacy group seeking to uphold states’ rights on the question.

Guests

  • Jim Campbell Legal counsel, Alliance Defending Freedom

Same-Sex Marriage: A Look At 50 States

The Washington Post explored the issue of marriage across the country. See their interactives by following the link below.

The changing landscape of same-sex marriage

Transcript

  • 12:06:39

    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, the surprising role slavery played in the American Revolution. But, first, last month, an appeals court in Virginia struck down the state's ban on same-sex marriage. The state's democratic leadership refused to defend the voter-approved ban on gay marriage, so last week, Prince William County sought a stay on the ruling.

  • 12:07:16

    MR. KOJO NNAMDIAnd now the state's attorney general wants the Supreme Court to review the case. A number of conservatives would also like to see the issue of state's rights and gay marriage settled once and for all. And joining us to talk about that is Jim Campbell. He serves as legal counsel for the Alliance Defending Freedom. That's a national nonprofit legal organization. He's also the litigating attorney with the Center for Marriage and Family. He joins us by phone from Scottsdale, Ariz. Jim Campbell, thank you for joining us.

  • 12:07:46

    MR. JIM CAMPBELLThank you for having me.

  • 12:07:47

    NNAMDIYou, too, can join this conversation. Give us a call at 800-433-8850. Do you think states should have the right to define marriage, including limiting to a union between one man and one woman? Give us a call, 800-433-8850. You can send email to kojo@wamu.org. Shoot us a tweet, @kojoshow, or go to our website, kojoshow.org. Ask a question or make a comment there. Jim Campbell, what's happening in Virginia around same-sex marriage right now is somewhat complicated for a lot of people legally. Can you walk us through what's going on here, starting with the U.S. Court of Appeals decision last month?

  • 12:08:25

    CAMPBELLSure. Well, as you said, at the end of last month, the U.S. Court of Appeals for the 4th Circuit, which is the court of appeals that sits over the state of Virginia, issued a ruling in which it struck down the Virginia laws defining marriage as the union of a man and a woman. So then fast forward about a week later, and the Virginia attorney general filed a petition with the U.S. Supreme Court, asking the U.S. Supreme Court to take up the case and to decide the issue once and for all.

  • 12:09:00

    CAMPBELLAnd then also, in the meantime, the county clerk for Prince William County Circuit Court filed a request with the 4th Circuit and then subsequently with the Supreme Court, asking the court to hold everything and to maintain the status quo and the current marriage laws as the union of a man and a woman until the Supreme Court has an opportunity to review the case. So that's sort of where we stand right now.

  • 12:09:29

    NNAMDIWhat was the goal of the county clerk of the court, Michele McQuigg, in that situation?

  • 12:09:36

    CAMPBELLThe goal again is just to maintain the current state of affairs in Virginia, to maintain the law as it currently is until the Supreme Court can tell us once and for all what the law is and whether the people remain free to define marriage as the union of a man and a woman.

  • 12:09:51

    NNAMDIWe both also mentioned that Virginia's Atty. Gen. Mark Herring supports same-sex -- or I mentioned that he supports same-sex marriage. But this week, he weighed in as well. Can you explain what he is asking?

  • 12:10:05

    CAMPBELLSo he, first and foremost, filed a request with the U.S. Supreme Court asking the court to hear the case. And then he also is agreeing with Clerk McQuigg in asking the U.S. Supreme Court to maintain the current state of affairs and to maintain the current marriage laws until the Supreme Court can decide the issue.

  • 12:10:27

    NNAMDIYou're an attorney with a group that offers legal support to a variety of causes around the country, including on the issue of same-sex marriage. Perhaps you can give us a sense of what's happening nationally with regard to same-sex marriage and the legal strategies around this issue.

  • 12:10:43

    CAMPBELLSure. Right now, this issue is being litigated all across the country. In fact, in each of the 31 states that continue to define marriage as the union of a man and a woman, each of those states have at least one pending lawsuit against their marriage definition. So right now, all of those cases are working their way up, and I think the strategy for everyone involved in this litigation, whether you're on one side or the other, is to get one of these cases to the U.S. Supreme Court.

  • 12:11:17

    NNAMDIIn case you're just joining us, our guest is Jim Campbell. He serves as legal counsel for the Alliance Defending Freedom, a national nonprofit legal organization. He's also the litigating attorney with the Center for Marriage and Family. Are you following the same-sex marriage debate in Virginia? Give us a call.

  • 12:11:33

    NNAMDIGive us your opinion, 800-433-8850. Or send email to kojo@wamu.org. Jim Campbell, the Supreme Court, of course, has weighed in same-sex marriage, ruling last year that the federal Defense of Marriage Act was unconstitutional. But it also weighed in on state's rights in defining marriage. Can you talk about that ruling and what it might signal about Virginia?

  • 12:11:57

    CAMPBELLSure. In that decision, the U.S. Supreme Court did strike down the federal Defense of Marriage Act. But in doing so, it repeatedly affirmed the rights of states to define marriage for their own community. And the Supreme Court in that decision extolled the virtues of the people being allowed to debate and discuss this issue among themselves and ultimately through valid democratic processes to go to the polls and to vote for laws reflecting their views on marriage.

  • 12:12:29

    NNAMDIJust to be clear, striking down a gay marriage ban as unconstitutional does not settle the question of the right to a state to define marriage. Can you explain?

  • 12:12:43

    CAMPBELLWell, I think that striking down a law that defines marriage as the union of a man and a woman cuts right to the heart of the right of a state to define marriage. In other words, if a state cannot retain the definition of marriage that we've known through millennia in this country -- well, millennia throughout Western civilization, I should say, and throughout the entirety of the history of our country, that would cut to the very heart of the right of states to define marriage for themselves.

  • 12:13:16

    CAMPBELLSo I would say that, if these laws, these laws defining marriage as the union of a man and a woman, if they cannot stand, then that is a significant blow to the rights of states to define marriage as they see fit.

  • 12:13:30

    NNAMDI800-433-8850 is our number if you have questions or comments. Let's go to Mai Mai (sp?) in Fairfax, Va. Did I pronounce your name correctly?

  • 12:13:40

    MAI MAIYou certainly did, Kojo. Thank you very much for having me on your show. The actual name is Mai Mai (unintelligible).

  • 12:13:45

    NNAMDIGo right ahead.

  • 12:13:46

    MAIAnd I absolutely oppose the idea that we would ever change the law defining what marriage is. The problem we have is simply this. Personally speaking, I have no objection to people of same sex being able to love who they wish to love and being able to enjoy the fundamental right that marriage provides. In other words, if a man and a man should love each other and they want to enjoy the same rights that married people have, there's absolutely no common sense reasons prohibit that. But it should be a fundamental right.

  • 12:14:25

    MAIHere's the issue though. My company has been defined now as a person, an individual with rights. And my company that I work for is very much opposed to the idea of allowing same-sex people to enjoy marriage. I personally favor it, but my corporation, who has very deep-seated feelings about this, is very passionate about it and, as you understand, has a great deal of money and has been funneling a significant amount of money into the Republicans in states to continue...

  • 12:14:59

    NNAMDIWhere are you going with this, Mai Mai?

  • 12:15:01

    MAIWell, I'm simply saying that we need to recognize that it's not an individual issue. Okay?

  • 12:15:06

    NNAMDIOkay.

  • 12:15:06

    MAI'Cause my Mai Mai (word?) has no problem. But (word?) Incorporated is very upset, very offended, and very hurt. And what I'm not hearing is people rallying around the feelings of corporations like (word?) Incorporated.

  • 12:15:21

    NNAMDIJim Campbell, what do you say to that argument?

  • 12:15:24

    CAMPBELLWell, I would say to that argument that corporations and entities do have rights, and they do have interests. And to the extent that corporations want to support and defend a particular view of marriage, and I think they have the right to do that.

  • 12:15:39

    NNAMDIPublic opinion has been shifting on this issue. Virginia's ban on gay marriage was passed by a majority of voters back in 2006. Some 11 states now have legalized same-sex marriage through the legislature or by popular vote, like the state of Maryland. If this is a state's rights issue, Jim Campbell, how do you believe states -- do you believe states are also free to legalize same-sex marriage?

  • 12:16:01

    CAMPBELLThe Supreme Court said very clearly that in the Windsor decision last year. So at the end of the day, this is a question for the people to decide. If the people choose to affirm marriage as the union of a man and a woman, they should have the right to do that. And we're hopeful that that's ultimately what the Supreme Court will hold. If they choose to go some other route with their domestic relations law, then Windsor says they have the right to do that, too.

  • 12:16:28

    NNAMDIOn to Abubaka (sp?) in Glenn Dale, Md. You're on the air, Abubaka. Go ahead, please. Oh, that was my fault. You're now on the air, Abubaka. Go ahead, please.

  • 12:16:39

    ABUBAKAOkay. Thank you, Kojo. And I appreciate this discussion, you know, because it's a discussion that is very good to talk about, you know. And there's no opinion in this. Okay? And there's no opinion can be above the Creator's will. The Creator's will is a marriage is supposed to be between a man and a woman, period, 'cause when Adam was created, you know, then the Creator thought about, Okay, well, I'm going to make Adam (unintelligible). And he created rib -- I mean, Eve from Adam's ribs...

  • 12:17:12

    NNAMDIWell, you're bringing up a religious argument, which allows me to ask Jim Campbell, Jim Campbell, what for you is the issue with defining marriage to include same-sex couples? Is it religious or is it social?

  • 12:17:25

    CAMPBELLIt's a social policy. That's what the people are voting for when they're enacting these laws. And one thing that's interesting to take note of is that well-known atheists throughout the history of Western civilization have acknowledged the social purposes of marriage. For example, Bertrand Russell acknowledged that marriage -- but for children, society would have no use for an institution like marriage. So under these circumstances, the people are voting for marriage because the -- marriage as the union of a man and a woman because the people believe that children deserve to have a mother and a father.

  • 12:18:07

    NNAMDIHere is Ben in Berryville, Va. Ben, you are now on the air. Go ahead, please.

  • 12:18:13

    BENThank you for taking my call. I guess my point is is that states decided that interracial couples couldn't get married up until the '60s or '70s. So I don't understand what the difference is between the argument that's being made about why states should have the right to discriminate against gay people and the same argument that states had the right to discriminate against black and white people or white and Asian people or, you know, any other mixed race couple. I don't see the difference.

  • 12:18:36

    NNAMDIJim Campbell, what is, in your view, the difference?

  • 12:18:39

    CAMPBELLRace is illegitimate for any -- race is an illegitimate consideration for any reasonable purpose of marriage, for any legitimate purpose of marriage. But the sex of the spouses is directly relevant to the government's interest because, again, marriage exists to bring together men and women so that when they have children, those children are more likely to be raised by their mother and their father. So that's the purpose of marriage. Race and racial considerations are wholly irrelevant to that purpose.

  • 12:19:13

    CAMPBELLIn fact, anti-miscegenation laws that were referenced by the caller there, they were at war with the purpose of marriage, which is to bring together men and women so that they have a mother and a father. Those laws were preventing that. So those laws needed to be struck down. Man-woman marriage laws, in contrast, affirm that purpose of marriage, and they should be upheld by the courts.

  • 12:19:36

    NNAMDIOur guest is Jim Campbell. He serves as legal counsel for the Alliance Defending Freedom. That's a national nonprofit legal organization. He's also the litigating attorney with the Center for Marriage and Family. He joins us by telephone. On now to Connor in Manassas, Va. Connor, you are on the air. Go ahead, please.

  • 12:19:54

    CONNORHi, Kojo. Thanks. So I guess I'm kind of critical guest's point that the definition and point of marriage for the past few millennia has been, in fact, to -- been consistent over the same -- over those many years. I mean, it started much more sort of a business contract. And then it turned into much more of a sort of a loving, romantic idea. And that's much more of a recent concept. I think that the idea that raising children is the primary focus of marriage, that's more of a recent phenomenon.

  • 12:20:33

    CONNORAnd even today that's kind of an anachronistic way of looking at it. Additionally, I mean, he hasn't really spoken to any of the concerns of due process, in -- not due process, but equal treatment under the law for LBGT people. And…

  • 12:20:49

    NNAMDIOkay. Allow me…

  • 12:20:49

    CONNOR…I mean, we're talking about…

  • 12:20:51

    NNAMDIAllow me to raise that -- allow…

  • 12:20:52

    CONNOR…gay rights, but we're not talking about any sort of individual rights at all.

  • 12:20:57

    NNAMDIAllow me to raise that with Jim Campbell. It seems that he's raising two questions, Jim Campbell. First is whether social contracts or social policies can evolve and change over time. And the second, of course, has to do with individual rights and how you would deal with the individual rights and how you would deal with the individual rights of gay people who would like to get married.

  • 12:21:17

    CAMPBELLSure. The first issue regarding the purpose of marriage, the question that's at issue here is not the private reasons why individuals marry. We all know that individuals marry for reasons such as love and expressing commitment and things of that nature. The question here is, again, these cases involve the government recognition of marriage. And the request by plaintiffs in these cases are to have official government recognition of their relationship. So the question is what is the government's purpose for recognizing marriage?

  • 12:21:49

    CAMPBELLAnd again, that brings me back to my point, which I've been making, which is the reason why the government recognizes marriage is to bring together men and women so that when they have children those children are more likely to be raised by both their mother and their father. Moving to the second point about due process and individual rights and equal protection under the law, the first question that has to be asked is -- well, let me put it this way.

  • 12:22:18

    CAMPBELLThe equal protection clause of the U.S. Constitution demands that similarly situated individuals be treated similarly. Under these circumstances, when we look at the purpose of marriage that I have just talked about, same sex couples and opposite sex couples are not similarly situated for that purpose. Men and women provide children with a mother and father. Same sex couples, on the other hand, do not. So that right there ends the equal protection analysis because the two groups at issue are not similarly situated for purposes of the law.

  • 12:22:53

    NNAMDII guess we should mention that we have interviewed Virginia attorney general Mark Herring on at least a couple of occasions and he has given his views on the issue today. We're hearing from Jim Campbell, legal counsel for the Alliance Defending Freedom, a national nonprofit legal organization. Some see civil unions as a compromise on the same sex marriage question, Jim Campbell. What's your opinion on that?

  • 12:23:18

    CAMPBELLI think that's something for the people to consider. And if the people think that that is an appropriate measure to put in place in their domestic relations laws, I think they have the right to do that. So ultimately, this comes down to a question of how do the people view marriage, how do the people view same sex relationships, how do the people view their domestic relations law. And what are the various compromises and decisions they want to make. But, at the end of the day, if the people choose to affirm marriage as the union of man and a woman, that's a right that they should have.

  • 12:23:50

    NNAMDIWell, we have mentioned social policy and social contracts. We have not mentioned economic issues, which is what I think Mark, in Baltimore, Md., wants to address. Mark, your turn.

  • 12:24:01

    MARKHello, Kojo. I have no problem at all with gays, lesbians, if they want to get married that's fine. I was all for civil unions, give them the rights to be there in the hospital room and make decisions and such. But what I don't hear anybody discussing is the fact that when you start calling it marriage, it's an entitlement program. It's a program where tax code, for example, gives breaks to couples that are raising families and children, which are ultimately beneficial for society. I don't see that those tax breaks that I'm paying taxes for should be extended to people that just want to call themselves married.

  • 12:24:39

    NNAMDIShould they be extended to…

  • 12:24:40

    MARKBut that's not about…

  • 12:24:41

    NNAMDIShould they be extended to heterosexual couples who choose not to have children?

  • 12:24:47

    MARKI think that the way that -- the law would have to be ironed out, but…

  • 12:24:51

    NNAMDIOkay.

  • 12:24:52

    MARK…again, I'm saying it's not -- I don't see this as a discrimination issue as much as it's entitlement for the benefit of society. And the second point is…

  • 12:25:00

    NNAMDIWell, allow me have Jim Campbell refer to -- respond to the first point. Jim Campbell?

  • 12:25:05

    CAMPBELLWell, on that point I think what the caller is highlighting is that the reason why the government grants various rights, benefits and obligations to married couples is because the government is, in essence, subsidizing relationships that further an interest the government has. And, again, the government has interest in connecting children to both their mother and their father. And that is why the government uniquely incentivizes man/woman relationships.

  • 12:25:32

    NNAMDINext part of your question, Mark?

  • 12:25:36

    MARKThe other point, along this, is I'm not saying it's a slippery slope, but just because people decide they want to have the freedom to do this or that, we don't allow brothers and sisters to get married, as far as I know. We don't allow fathers to marry their children and mothers to marry their children.

  • 12:25:50

    NNAMDIYou're right. You're on a slippery slope and I'm gonna have Jim Campbell -- because this -- we're running out of time very quickly. Jim Campbell, what do you feel about that comparison?

  • 12:25:59

    CAMPBELLWell, we started talking about the decision of the Court of Appeals out of Virginia. And specifically, that court found a fundamental right to marry the person of one's choosing. Well, if we're going to just be objective and be logical about this, if someone has a fundamental right to marry the person of their choosing, then exactly what the caller raised are very significant concerns.

  • 12:26:21

    CAMPBELLIn other words, we're left to wonder can the state ever prevent marriage between closely related individuals or between more than two individuals. And that's a significant question because ultimately, again, the definition of marriage involves many facets. So if this essential underpinning of the definition of marriage, the union of a man and a woman is eradicated, then we're left to wonder what else can the state do when defining marriage.

  • 12:26:50

    NNAMDII'm afraid that's all the time we have. And this is an ongoing discussion. As I mentioned earlier, we had the Virginia attorney general, Mark Herring, on a couple of occasions, talking about it. And we will continue to talk about it. We'll have to see if the Supreme Court or if the chief justice decides to stay this ruling and we'll take it from there. Jim Campbell, thank you for joining us.

  • 12:27:09

    CAMPBELLThank you for having me.

  • 12:27:11

    NNAMDIJim Campbell serves as legal counsel for the Alliance Defending Freedom, a national nonprofit legal organization. He's also the litigating attorney with the Center for Marriage and Family. We're going to take a short break. When we come back, the surprising role slavery played in the American Revolution. I'm Kojo Nnamdi.

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