GWEN IFILL: In calling for a constitutional amendment to outlaw gay marriage, President Bush added new fuel to what has become a roiling cultural debate.
PRESIDENT GEORGE W. BUSH: After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity. On a matter of such importance, the voice of the people must be heard. Activist courts have left the people with one recourse: If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America.
GWEN IFILL: Some of the judges the president referred to sit on the Massachusetts Supreme Court, which ruled earlier this month that it is unconstitutional to bar gay couples from marrying. The local authorities are in San Francisco, where city officials have performed more than 3,000 same-sex weddings in the last two weeks, and in one New Mexico county, where 66 couples were wed last week in ceremonies, later ruled invalid by the state attorney general. At least 38 states and the federal government have approved laws or amendments banning gay marriage, but the president said a constitutional amendment is needed to codify a uniform federal approach that also reflects public opinion.
PRESIDENT GEORGE W. BUSH: The union of a man and woman is the most enduring human institution, honoring, honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society.
GWEN IFILL: Gay rights advocates in both parties decried the proposed amendment. At a Washington news conference, the human rights campaign called it discrimination.
CHERYL JACQUES: President Bush's endorsement of a constitutional amendment that would discriminate against millions of Americans is shameful, un-American, and divisive. This is a desperate act of a desperate president, and shame on him. The sole intent of this is to deny basic legal rights and protections to rights to gay and lesbian Americans like you see standing here, and their families. That is discrimination, and it certainly does not belong in our Constitution.
GWEN IFILL: To amend the Constitution, two-thirds of both the House and Senate must approve the new law, and three-quarters of the states must ratify it. It is a complicated and often lengthy process. The last constitutional amendment, a measure governing congressional pay, was ratified in 1992, more than 200 years after it was first proposed. In 1971, the voting age was lowered from 21 to 18 by constitutional amendment, but in 1982, the equal rights amendment failed to win ratification, even after ten years on state ballots.
GWEN IFILL: Now for more on the implications of a possible federal amendment, I'm joined by two constitutional scholars: Laurence Tribe of Harvard University Law School and Doug Kmiec of Pepperdine University School of Law.
Professor Kmiec, what exactly is the advantage to pursuing this by way of constitutional amendment instead of letting it work its way through the courts?
DOUG KMIEC: Well, I think the president put it well. This is a subject upon which clarity is needed and not confusion. One of the things we have right now, Gwen, is total confusion. We do have local officials issuing licenses contrary to state law here in California. We have the Massachusetts Supreme Court using a method of constitutional interpretation that hasn't been seen before to rule gay marriage is required under that Constitution. And it seems to me that the president is saying that all of this is just going to compound and produce a flood of litigation that is going to create uncertainty over the most important cultural institution in our land and he wants to put it to rest.
GWEN IFILL: Professor Tribe, what about this argument for consistency?
LAWRENCE TRIBE: It seems to me that that argument is just a make-way. There's no threat to any existing marriage. My wife and I have been married 40 years this June, and I don't feel threatened. The question really is whether we should for the first time in American history since, of course, the obscene episode of slavery, build into the Constitution a denial of civil rights and equal rights for a group of people in the population.
There's no question that there will be litigation no matter what happens. There will be litigation over the meaning of any amendment that is proposed by the president. But the question of whether there should be a uniform, federal rule denying individual states the right to provide broader rights than other states might wish to provide, it seems to me can't be resolved by resorting frankly to slogans about chaos and litigation. The question is, should we use the Constitution to deny equal rights? I think the answer is clear. We ought not to.
GWEN IFILL: Professor Kmiec, do you take that interpretation?
DOUG KMIEC: Well, I don't. I respectfully disagree with my friend professor tribe. I think he's taken a definite position that he favors gay marriage and he's therefore sees it as an expansion of right. Others of us would see it as a disregard of created reality, of in fact the fact that states have preferred marriage, have given it a position of prominence because it does some very important things. It supplies new members to our community and it supplies a household that is the most important educator for our community. In this sense it's not a denial of right; it is an affirmation of what is important.
GWEN IFILL: Professor Kmiec, a good conservatives like yourself have often said that more should be left up to states not less. How do you justify your support for federal -- what liberals like Professor Tribe would call federal intrusion into state's rights?
DOUG KMIEC: Well that's a great question. I must say, Gwen, my initial reaction was to say Massachusetts should solve its own problem. In fact I wrote an essay to that effect. But the difficulty that the president alluded to is that we now have people in New Mexico. We have this mayor in San Francisco and he's issuing thousands of licenses. These people are basically being misled because ultimately the law of the state of California is going to be affirmed that marriage is between one man and one woman. But in the meantime claims are going to be made for benefits. People are going to be relying upon these improperly issued licenses for purposes of inheritance and tax laws and in other places. That just does bring frankly -- whether Professor Tribe thinks it's a slogan or not -- chaos to something that needs to be remain clear and unambiguous.
GWEN IFILL: Let me turn that question on its head for Professor Tribe. Liberals like you would usually go to the federal courts or to the supreme court even as an avenue of last resort in order to protect certain rights. Why shouldn't someone who happens to believe differently about the underlying issue than you do, do the same thing?
LAWRENCE TRIBE: I have no doubt at all, Gwen, that people of honestly differing views should be able to pursue their interests through every avenue. But there is a basic asymmetry here. People like me resort to the federal government, resort to the federal courts when individuals or groups who are marginalized or disadvantaged or essentially treated as outsiders are made second class citizens or are denied their rights. Some invasion occurs, which perhaps we can't always rely on the states to prevent.
But in this case, the idea that perhaps truth in advertising requires for the first time building a social instance institution into the Constitution and denying others the right to share in it seems to me, even though I very much like and respect Doug Kmiec, seems to me to be quite fantastic. He said himself that the states in which the state has said that marriage must be between a man and a woman are quite promptly saying certain licenses are not properly issued. There will be litigation in those states on whether it violates equal rights to take that position.
We have a system in place to decide whether this is really a denial of equality and the very point Doug Kmiec makes that marriage is a terribly important thing really underscores my point. Its value and its importance makes it all the more tragic and ultimately mean-spirited to say that a loving couple providing a home and providing a family committed exclusively to one another over time must be denied participation in that institution and we must build that denial into our Constitution for bookkeeping reasons, to avoid a little bit of confusion.
I think clarity is not the real reason for this amendment. The real reason is to incorporate a certain view of the way people should live right into the Constitution of the United States. It's never been used for that purpose.
GWEN IFILL: Professor Kmiec the president's remarks were widely interpreted today to, as leaving the door open to civil unions, that is, without the "m" word involved just not marriage involved but allowing civil protections, benefits. What is your sense of that? Is that the way you read the president's comments or non-comments on that today?
DOUG KMIEC: I think as you said it's a non-comment. He left the door open. There's a vibrant debate in your town over whether the amendment that is currently being talked about -- the Musgrave amendment -- allows or disallows civil unions.
GWEN IFILL: What's your take on that?
DOUG KMIEC: My take is that the fairest reading is that it affirms marriage and it disallows civil unions, but Representative Musgrave says she's leaving that second question to the states. Whoever is right on that question, it needs to be clear because one of the things that happens to constitutional amendments is if they are not clear, like the equal rights amendment some years ago there was a debate about its meaning, that really impeded its progress through the states. I don't think this is a mean-spirited measure, Gwen.
I think what's going to happen is that this is actually a vindication of the democratic process which is really what Article V, the amendment process, is about. It doesn't take it from the states. It gives it to the proper body in the states, namely the state legislatures, to decide how to either affirm marriage with a civil union possibility or without it and I think that ultimately will be a very healthy discussion because it will allow us to do two things. Say that we don't wish to be mean spirited or exclusionary but at the same time we don't wish to for sake all principled approval of marriage and the significance in which a man and a woman brings to the meaning of marriage.
GWEN IFILL: Professor Tribe, as Doug Kmiec was just saying, obviously language is everything. The president isn't the one who gets the final say on this. Is your understanding of the Musgrave amendment or whatever the final wording of this constitutional amendment is that ... is it not okay for you to ... with you that this would speak to marriage but not to civil unions? For instance if the door is let open and states are still allowed to have civil unions but just not marriage, wouldn't would that be acceptable?
LAWRENCE TRIBE: I don't think so, Gwen, because the very importance of marriage that Professor Kmiec talks about means that to relegate same-sex couples to a deliberately lesser status by any other name would, whatever its motives might be, represent separate but equal. As the highest court in Massachusetts I think rightly said, the history of our country has taught us that separate but equal is an illusion.
It seems to me that the very difficulty that people are having about the wording of the Musgrave amendment is a symptom -- a symptom of the fact that trying to stitch a social institution and a ceiling on human rights into the constitution is itself going to spawn litigation, is itself going to lead to confusion. And whatever amendment is ultimately enacted there's an awful lot of stuff that's going to happen in the states before it becomes law. And there is no magic wand through which one can eliminate the hurly-burly of democracy which is what we see in process here. I don't think it threatens anyone.
GWEN IFILL: Professor Tribe, Professor Kmiec, thank you both very much.