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Experts Discuss the Ongoing Debate Over Gay Marriage

November 8, 2004 at 12:00 AM EDT
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MARGARET WARNER: When Americans went to the polls last week, many of them were asked to vote against gay marriage. And in all 11 states where the issue was on the ballot, they approved by large margins state constitutional amendments banning gay marriage. That brought to 17 the number of states whose constitutions now outlaw same-sex marriage. And a majority of them also bar legal recognition for same-sex civil unions. In Oregon, one of the states that voted on it last Tuesday, gay activists vowed to keep fighting.

GAY ACTIVIST: True love cannot be defeated and although we may not have won at the polls tonight, we know that the love we have shown throughout our entire campaign has changed this state.

MARGARET WARNER: The sudden rush of amendments was triggered by state Supreme Court rulings in Vermont and Massachusetts, saying the states couldn’t discriminate against same-sex couples in awarding marriage licenses.

Vermont responded with a law in 2000 allowing civil unions for gay couples. Massachusetts passed a law allowing gay marriages, which began this year.

Also this year, thousands of gay couples were wed elsewhere, including San Francisco, by sympathetic local officials, though many of those unions were later ruled invalid by their state courts. Conservative activists fought back by pushing to get state constitutional amendments on the November ballot. And President Bush responded by calling for a federal constitutional amendment limiting marriage to heterosexual couples.

PRESIDENT GEORGE W. BUSH: I believe in the sanctity of marriage. I think it’s very important that we protect marriage as an institution between a man and a woman. I proposed a constitutional amendment. The reason I did so was because I was worried that activist judges are actually defining the definition of marriage, and the surest way to protect marriage between a man and woman is to amend the Constitution.

MARGARET WARNER: The Democrats’ candidate, Sen. John Kerry, said he also opposed gay marriage, but he endorsed civil unions.

And just days before the election in an interview on ABC, the president opened the door to civil unions too, saying: “I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do.” He went on say: “I view the definition of marriage different from legal arrangements that enable people to have rights. And I strongly believe that marriage ought to be defined as between – a union between a man and a woman.”

The federal amendment was smothered by a filibuster in the Senate in July, and defeated outright in the House in October. But yesterday, the president’s senior political adviser Karl Rove said President Bush plans to push for it again.

KARL ROVE: He does believe very fervently that 5,000 years of human history should not be overthrown by the acts of a few liberal judges or by the acts of a few local elected officials. Marriage is and should be defined as being between one man and one woman.

MARGARET WARNER: Meanwhile, gay activists vowed to challenge some of the new state amendments in court.

MARGARET WARNER: So what explains last Tuesday’s outcome and where does it leave the prospects for gay marriage? For that we turn to Shannon Royce, executive director of the Marriage Amendment Project, a coalition of groups pushing for state and federal marriage protection amendments; and Matt Foreman, executive director of the National Gay and Lesbian Task Force. Welcome to you both.

Shannon Royce, were you surprised at these results, winning all 11 states, some of them by more than 60 or even 70 percent of the vote?

SHANNON ROYCE: We really were not surprised. We fully expected to win ten of the states with overwhelming votes, 70 percent or more. We were hopeful in Oregon, although not certain that we would pull that one off, and very pleased that we had 57 to 43 percent, even in Oregon.

MARGARET WARNER: Matt Foreman, how do you explain the results?

MATT FOREMAN: Well, fundamentally human rights should never be put up for a popular vote. Even today if we put the freedoms that we take for granted, like freedom of press or religion or speech, up to a popular vote, we would lose them in most of our states — maybe not most, but at least half of them.

MARGARET WARNER: How much of it, Ms. Royce, do you think was triggered by all the media coverage we had in the last few months of gay couples getting married?

SHANNON ROYCE: I think that ended up being very helpful to us. The American people saw this. It was a slap in the face to everything that they believed, at least the vast majority of them believed that marriage is between a man and a woman, and that there can be other legal arrangements if states want to allow those, but that doesn’t mean we have to allow marriage to be redefined.

MARGARET WARNER: What do you say to that, Mr. Foreman?

MATT FOREMAN: Well, I think the hypocrisy of the other side is appalling. Eight of the eleven measures on the ballot on Nov. 2 actually preclude other forms of relationship recognition. This isn’t just about marriage. It’s like the Federal Marriage Amendment. It precludes more than just marriage. It precludes civil unions. These people will stop at nothing to try to deprive gay people of their rights.

MARGARET WARNER: Most of the amendments did, in fact, also preclude civil unions, do they not?

SHANNON ROYCE: Indeed. Indeed. I think the thing that we have to confront very directly, Margaret, is this: In any state in this union, homosexual couples can make arrangements for their property through wills, for medical issues through living wills, for guardianship through wills. There are legal ways for homosexual couples to achieve all of these goals, and there’s no need for us to redefine the very basic institution of our country in order to accommodate them.

MARGARET WARNER: Matt Foreman, let’s go to the impact that this is going to have. Let’s take the states that newly passed these amendments: Michigan. There are employers in states, especially large employers who are nationwide, who give employee benefits to gay couples the same as they do to heterosexual couples. What happens in a state like that now?

MATT FOREMAN: These amendments will not affect the limited rights that employers, private employers extend to both gay and straight couples. They can and potentially do imperil domestic partnership benefits offered by either the states or organs of the states, such as the University of Michigan. That’s all going to have to be resolved in court.

SHANNON ROYCE: I think that’s accurate. It does not affect private businesses and what private businesses do. And I appreciate Mr. Foreman’s honesty about this. There was a lot of confusion in some of the states about that very question.

MARGARET WARNER: But do you agree with him that ultimately these will be resolved in the courts?

SHANNON ROYCE: Some of the issues that are raised by state institutions will definitely have to be further addressed.

MARGARET WARNER: All right, Mr. Foreman let’s take another “what if?” You now have this patchwork of situations in the country. As you said, some of these amendments, the states now outlaw both gay marriage and civil unions. Sometimes it’s just gay marriage. Massachusetts allows gay marriage. Vermont allows civil unions. What if a gay couple gets married, lives in Massachusetts, gets married in Massachusetts, and then moves to say, Missouri or Michigan. At that point, can that couple demand that its marriage be recognized by employers or by schools or by other institutions, state tax authorities, for that matter?

MATT FOREMAN: Well, these couples are going to do exactly the same thing that interracial couples did not that long ago. When they moved from California to a state that did not recognize their marriage, they would challenge that in court. But first they go through the process. They say, “Well, I’d like to file my taxes as a married couple,” or, “I want these kinds of benefits the state law offers as a married couple.” And then some states, some entities are going to honor those marriages, some are not. And when they don’t, these couples are going to do what other couples have done in the past. They’re going to go to court and they’re going to seek to enforce their rights as a married couple.

It’s the same thing as couples that have moved from Canada, or for the last 200 years we’ve recognized those marriages. But at different points in our country’s history, couples have had to go to court to get the courts to intervene. I mean, divorces weren’t recognized across state lines for many years. There’s a long list.

MARGARET WARNER: Now, when you say go to court, these are state constitutional amendments, not just state laws. So on what grounds can they actually challenge these state constitutional amendments?

MATT FOREMAN: Well there’s a couple of grounds, one of which is some of these amendments that have been passed, even though they amend the state constitution, can be viewed as being in conflict with other parts of the state constitution. For example, equal protection clauses of certain state constitutions. But these couples will also go to federal court, because one of the principles of federalism is that contracts and relationships that are entered into one state are enforceable in another state. And that’s why…

This is unfolding the same way as other issues have in our nation’s history, including interracial marriage, segregated schools, divorce, access to contraception, choice. All of these things have evolved through a patchwork where one state did one thing, one state did another thing and people went to court to try to secure their benefits under federal law and hopefully state law.

MARGARET WARNER: All right. Ms. Royce, Mr. Foreman is talking of course about this so-called full faith and credit clause in the Constitution.

SHANNON ROYCE: Right.

MARGARET WARNER: How do you see this unfolding in the courts?

SHANNON ROYCE: Well, I think the thing that’s going to be very interesting; he has set it up so beautifully. It is basically going to come down to the courts versus the people. The people, if they want to have marriage be protected as between a man and a woman, are going to have to do both state constitutional amendments and ultimately a federal constitutional amendment, because that is the only way to trump the equal protection and full faith and credit clauses that Mr. Foreman is mentioning.

MARGARET WARNER: So are you saying that you think, for instance, if a case like this were to… involving the state constitutional amendment… were to get to the U.S. Supreme Court, that, in fact, the state constitutional amendments might be struck down?

SHANNON ROYCE: I think it is very possible that that will be the result. And in fact, in the spring in January or February, we fully expect the Nebraska state constitutional amendment to be struck down at the lower court level.

MARGARET WARNER: Federal or state court?

SHANNON ROYCE: State court — and to begin to work its way through the process. It is about the state constitution in that case. But there are other cases around the nation that have been filed challenging the federal Defense of Marriage Act in federal court.

MARGARET WARNER: Mr. Foreman, let me step back and ask you kind of a broader strategic question here. It did seem as if the voters in these states — and some of these states are not considered socially conservative states; some people who voted for John Kerry voted for these amendments — seem to be saying they don’t think marriage should be defined by the courts. There’s something special about marriage. Is the gay community rethinking in any way trying to push this through in the courts, or have you, in fact, triggered potentially a backlash here that may set you back?

MATT FOREMAN: Well, we’re getting together. Our national movement is getting together later this week in St. Louis to talk about all of these things and to talk about how we move forward. But we are on the offensive in many places across the country and we’re winning in other places across the country. We have a very strong chance of actually winning in the legislature full marriage equality in California. We have very promising litigation going on in New York, Connecticut, New Jersey, Washington State.

This is going to evolve like other issues have evolved. But is there a backlash? Sure there’s a backlash. There’s been a backlash against us for the last 35 years. Every little step we’ve taken forward has been met by this opposition. I mean, now it’s under the guise of marriage. It’s like, what… how are we threatening marriage, the sanctity of marriage?

So as time goes on, more and more people move to our side. The fact that 61 percent of the people in exit polls said that they supported some form of partner recognition for gay people is light years ahead of where we were four years ago.

MARGARET WARNER: All right, and Ms. Royce, let me ask you about a tactical or strategic question for your side. Should we expect to see similar amendments on the ballot in the 2006 election?

SHANNON ROYCE: Absolutely.

MARGARET WARNER: If so, how many?

SHANNON ROYCE: I would say a dozen to fifteen more will be moved in the next year to two years. You will also see the federal constitutional amendment, the Marriage Protection Amendment, moving in this next term of Congress.

MARGARET WARNER: Well, finally, let me ask you about the federal amendment, because President Bush, who promoted this idea to start with, has said… has made it pretty clear — at least it seems that way — that he thinks marriage should be preserved for just a man and a woman, but he would be in favor of civil unions. Would a federal constitutional amendment that specifically said that, could that be a possible compromise position here?

SHANNON ROYCE: I think any amendment that would say that specifically would be opposed by the pro-family representatives who I work for. The amendment as it’s currently drafted says marriage is between a man and a woman but leaves the civil union/domestic partnership benefits questions, if you will, to the state legislatures. And that’s where we believe those questions should be settled, in the state legislatures by elected officials of the people.

MARGARET WARNER: But, so why are you saying that an amendment that said that specifically, that said “but the matter of civil unions will be reserved for state legislatures…”

SHANNON ROYCE: The current amendment says that. It leaves it specifically to… it doesn’t use the term civil unions.

MARGARET WARNER: No, it doesn’t.

SHANNON ROYCE: It talks about benefits of marriage being left to state legislatures.

MARGARET WARNER: Mr. Foreman, could that be a compromise that the gay community could live with?

MATT FOREMAN: We can’t compromise about being full citizens under American law. If that compromise took effect, I can’t leave my Social Security benefits to my partner. I still will get screwed in federal estate taxes. I mean, all of the big-ticket items that take care of families in this country come from the federal government. So maybe if they want to put on the table, oh, a federal marriage amendment but we’ll create a federal civil union law that gives us equal civil rights and responsibilities, hey, we could talk about that.

MARGARET WARNER: Okay. And you would say that would be opposed.

SHANNON ROYCE: Oh, I would say that the American people don’t see civil unions and homosexual partnerships the way they see husband-wife relationships.

MARGARET WARNER: All right. We have to leave it there, but more to be discussed I’m sure. Thank you both.