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MARGARET WARNER: To explore this growing debate in legal and church circles, we’re joined now by Vincent Samar, adjunct professor at Chicago Kent College of Law, where he teaches a course on sexual orientation and the law. Douglas Kmiec, dean of Catholic University Law School. Marianne Duddy, executive director of Dignity/U.S.A., the nation’s largest organization for gay Catholics. And Maggie Gallagher, editor of MarriageDebate.com and co-author of the book The Case for Marriage.
Welcome to you all.
Doug Kmiec, explain why as a legal matter the president would be wading into this legal thicket over gay marriage. I mean, is it really such a pressing, imminent issue?
DOUGLAS KMIEC: Well, I think the issue got a tremendous boost with the Supreme Court’s decision in Lawrence vs. Texas, which struck down a Texas statute that had criminalized homosexual sodomy.
If you actually think about it as a legal matter that’s not much of a boost, because Justice Kennedy was very careful in the opinion to say, “I’m just striking down a law that intrudes on intimate, private behavior in the home,” and he was careful to say, “I’m not saying anything about the formal recognition of a particular relationship.” Nevertheless, that created a political momentum.
There’s a couple of other things happening. There are cases pending and they’re very close, in some cases, to decision, as your front piece mentioned. There’s a case that’s been argued, called the Goodridge Case in Massachusetts that’s waiting for a decision in the Massachusetts Supreme Court.
It could be that they are going to decide in favor of gay marriage under the laws of Massachusetts. We don’t have any way of knowing one way or the other, but if they do, then the rest of the federal structure has to be prepared to act, and I think that’s why the president reacted.
MARGARET WARNER: So, Professor Samar, first of all do you agree with that sort of analysis of where this is headed? And explain why other states, if Massachusetts were to enact gay marriage in some fashion, why other states would be under pressure or perhaps even the requirement to do the same.
VINCENT SAMAR: Well, hello, Margaret. Nice to meet you. I agree with it to this extent. It is the case that Justice Kennedy’s opinion in Lawrence vs. Texas did not directly address gay marriage, but he was very clear about saying that he was going to deal with the due process privacy element, because in order to deal with the equal protection would leave open the door to the possibility that if someone came across with a sodomy statute that prohibited same-sex and opposite-sex sodomy that that might fly.
In doing that, he undercut what had been a long-standing argument of the law, namely that if we can make these behaviors criminal, we can therefore not allow any kind of recognition or any kind of protection for them. In giving that up, he opened the door to the possibility of same-sex relations now getting recognized, though he did not do that in that case.
So I agree to that extent, but I also see where the direction has been set.
MARGARET WARNER: So, Doug Kmiec, back to you. Under this Full Faith and Credit Act of the Constitution, other states then might, what, have to recognize at least same-sex marriages in other states?
DOUGLAS KMIEC: Here’s the problem the Constitution presents us. We’ve got 50 different sovereignties. Marriage is typically defined at the state level. If one state recognizes a marriage, a valid marriage in one state is typically recognized in another state, and we have a constitutional provision, Article 4, that says each state will give full faith and credit to the acts and judgments of another state.
But it’s subject to a very important qualification. And the qualification is that Congress can define the manner and effect of the judgments from the other state.
There’s been a long-standing rule that if a judgment in another state violates the public policy in the receiving state, that that state can object, and Congress itself, as your front piece mentioned, passed a law to reaffirm the proposition that a receiving state does not have to acknowledge a gay marriage that is coming in from a place that does recognize it.
MARGARET WARNER: Let’s set aside the legal discussion for a minute and let me bring in Maggie Gallagher. What is the Vatican trying to accomplish here with this new document out today? And I’ll just quote one line saying, “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to god’s plan for marriage and family.”
MAGGIE GALLAGHER: I don’t think this is a kind of angels dancing on the heads of a pin theological issue. What the pope is saying is that marriage is about getting men and women into the kinds of sexual unions where their sexual acts are not harmful to each other or their children, that is, where any children that they make, you know, the mother and father who make them stay around and love them.
So it’s about getting mothers and fathers for children and babies for society. That’s the common good. I think the pope’s intention here is primarily to clarify the position of the Catholic Church, which, you know, I was up in Massachusetts during the hearings on this.
A priest was saying that the Catholic Church demands that you recognize same-sex marriage and a representative of the diocese was saying no, and the legislators are saying, well, “Who do we believe? What’s the Catholic position?” I think that question has been answered.
MARGARET WARNER: Marianne Duddy, your reaction to today’s document from the Vatican.
MARIANNE DUDDY: I think what the Vatican is trying to do in this document is tell legislators around the world, and certainly in this country, to do what the Vatican has not been able to do, which is to stem the growing tide towards justice.
Efforts to secure same-sex marriage are really about reversing centuries of discrimination in which some families in society have had additional burdens placed on them and have not enjoyed the protections that most families take for granted.
MARGARET WARNER: And so do you take this to be really an instruction to Catholic politicians to, whenever they’re confronted with a vote on this issue, to vote the Church’s way?
MARIANNE DUDDY: That’s what the document says. It says that Catholic legislators have a moral duty to uphold Catholic teaching when confronted with this issue. And I think that that’s very problematic for democratic countries like our own, which are founded upon the separation of church and state in which the legislators’ highest duty is to uphold the Constitution.
MARGARET WARNER: Ms. Gallagher.
MAGGIE GALLAGHER: I have to really object to the idea that there’s something anti-democratic about people turning to religious leaders for guidance on moral or social issues.
Certainly I don’t think it was a violation of church and state when the Reverend Martin Luther King, you know, organized African American parishes to speak out against segregation. I really do think that this is a form of bigotry to imply that religious people are not entitled to listen to clergy or other religious leaders. And then like all of us in democratic societies you have to make up your own mind about what the right thing to do is.
MARIANNE DUDDY: I’m not saying that legislators can’t appeal…
MARGARET WARNER: I’m sorry. Let me bring back in now our two professors here, because I want to get to the issue that lawmakers may face sooner rather than later. Professor Samar, why now is there this move for a constitutional amendment against same-sex marriage to put it very generally? I mean, why isn’t the Defense of Marriage Act that was, as we said and we all discussed, signed in 1996 that’s become the law of the land saying marriage is a union between men and women? Why is that not enough?
VINCENT SAMAR: Well, what happened was when Justice Kennedy rendered the decision in Lawrence vs. Texas, and opened the door, as I indicated a while ago, and opened the door to the possibility that if now Massachusetts has marriage for gays and lesbians, and a person like myself goes to Massachusetts with a partner, decides to get married, come back to Illinois, where marriage is not recognized, and asks for benefits from my employer, especially a public employer, the employer might deny those.
If the employer denies those and I say, “Well, this is a matter… I have a right to full faith and credit under the Constitution,” DOMA kicks in.
MARGARET WARNER: That’s the Defense of Marriage Act.
VINCENT SAMAR: That’s the Defense of Marriage Act. Right. At that point, what I would do is I would say, “But DOMA is unconstitutional, because it violates equal protection of the laws.” Since there no longer is the outing of saying that this is… the behavior is illegal, and that’s okay, that there’s a substantive due process to privacy now, that equal protection ground would probably stand and would probably kill DOMA.
So I think the reality is that we can look forward down the pipe, about five years, maybe by the time it would go through the legal process all the way up to the U.S. Supreme Court, but five or six years down the pipe, we could look to the possibility that there will be same-sex marriage throughout the United States, and I think that’s what the impetus before this amendment.
I think the amendment’s very dangerous, because the amendment is not just simply saying that states like DOMA have the right to accept gay marriage or not accept it; it’s actually prohibiting them from doing it at least in the standard version of the amendment that is floating around.
It defines marriage and limits all the indicia of marriage, which means all the legal protections, the right of inheritance, the right to make decisions for one’s spouse if they’re in the hospital or sick, the right to seek from a spouse help and assistance in the taking care of children if you adopt children or have it by surrogate motherhood.
All those matters, including inheritance rights, like we have, if you die intestate, without a will, all those things which are now at least provided for in Vermont under the common benefits clause of the Vermont constitution, since those would reflect indicia of marriage would under this interpretation not be allowed.
MARGARET WARNER: Let me get someone else back in here. So Doug Kmiec, do you think this is heading to a battle over constitutional amendment? Because only a constitutional amendment can trump this article of the Constitution — is that… I know you made an argument why the Defense of Marriage Act might be enough. But do you think politically it’s kind of heading this way?
DOUGLAS KMIEC: I think it may be heading this way. The Defense of Marriage Act is enough if the public policy agrees that each state should be able to go its own way. I disagree with professor Samar as to whether or not the Defense of Marriage Act is constitutional. I think it’s fully constitutional. The federal Congress can define marriage for itself and it can allow the states to do that if it chooses.
The question is whether or not a national answer, a national reaffirmation of marriage is needed. If it is needed, a constitutional amendment might be one way to go. Alternatively, the White House Council is exploring whether Congress could pass legislation under the 14th Amendment perhaps to protect marriage nationally.
MARGARET WARNER: Before we go I want to get all four of you on one final question. I’ll begin first with Ms. Gallagher. Is there middle ground here, that is, the step that Vermont took, a civil union that doesn’t call it marriage, it doesn’t have all that sort of religious freight and traditional freight, but affords the legal benefits that usually come with marriage? Could that be a middle ground?
MAGGIE GALLAGHER: Well, I think there are a lot of people who are going to end up opposing gay marriage and settling on civil unions. But there isn’t a lot of sense that this is a compromise on which both sides agree.
Gay marriage advocates have been very clear that it’s marriage they want, that it’s not just about the legal benefits. It’s about the affirmation of same-sex sexual relationships. I don’t think that you’re going to find among at least the traditional Christian, traditional Jews or Muslims on this issue that there’s going to be a lot of enthusiasm for civil unions either.
MARGARET WARNER: Marianne Duddy.
MARIANNE DUDDY: Well, I think it’s very important to know that we’re separating out in this debate the issues of religious marriage and civil marriage. I think it is important for our community to be working towards marriage.
I think our country has a lot of experience with the whole “separate but equal” concept, which civil unions represent a pathway towards. And we know that separate is not equal. It would continue to keep the gay and lesbian community, same- sex couples and our families in a second-class role in this society.
MARGARET WARNER: Professor Samar.
VINCENT SAMAR: Well, that’s exactly the point. If you allow separate but equal but you don’t give it the name, then there must be something significant in why the name is being withheld. That significance that when “Brown V. Board of Education,” with regard to racial separation was recognized as a way of demeaning and giving disrespect and lack of dignity to a group of people based on their race or color.
It is the case that marriage, as a fundamental universal moral principle, provides an opportunity for dignity, for self-respect and for involvement in each other’s life in a way that is not easily done by… without the institution. And therefore I would have to say that we do not just want to have the indicia of marriage, like in Vermont, we want the whole institution. I disagree with…
MARGARET WARNER: Let me go to Professor Kmiec here on that point — last point.
DOUGLAS KMIEC: Well, where Professor Samar and I would disagree is on the proposition that this is discrimination. It’s really not discrimination. It’s redefinition.
Marriage is fundamental, but it has fundamental qualities to it that require a man and a woman. And, by virtue of that, there isn’t a violation of the equal protection clause. In civil unions, if civil unions are merely a disguised way to provide marriage, I think the culture will not accept that as an answer either. But it’s important that we have laws that protect all people against arbitrary discrimination, but it’s not discrimination to preserve marriage for its intended purpose.
MARGARET WARNER: It doesn’t sound like there’s a middle ground here. Thank you all four very much.