DOYLE MCMANUS: A high-stakes debate at the Supreme Court over same-sex marriage. And the president tells lawmakers, don’t get squishy about gun control. I’m Doyle McManus in for Gwen Ifill, tonight, on “Washington Week.”
At issue, the definition of marriage.
JOHN ROBERTS [Supreme Court Chief Justice]: (From tape.) If you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that’s, it seems to me, what supporters of Proposition Eight are saying here.
MR. MCMANUS: The Supreme Court hears arguments in two separate cases, challenging who can marry and what it means to be married.
ELENA KAGAN [Supreme Court Justice]: (From tape.) You’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the state’s interest. But do you go further and say that it harms any state interest?
RUTH BADER GINSBURG [Supreme Court Justice]: (From tape.) State there are two kinds of marriages: the full marriage, and then this sort of skim-milk marriage.
MR. MCMANUS: Is it the right time for a broad ruling on gay marriage?
SAMUEL ALITO [Supreme Court Justice]: (From tape.) But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?
MR. MCMANUS: And why so many politicians are evolving on marriage equality. Plus, three months after the massacre in Newtown, President Obama presses Congress to take action on tougher gun laws.
PRESIDENT BARACK OBAMA: (From tape.) The entire country was shocked. And the entire country pledged we would do something about it and that this time it would be different. Shame on us if we’ve forgotten.
MR. MCMANUS: But is public support for gun control fading? Cover this week: Joan Biskupic of Reuters; Pete Williams of NBC News; Dan Balz of the Washington Post; and John Harwood of CNBC and the New York Times.
ANNOUNCER: Award winning reporting and analysis, covering history as it happens, live from our nation’s capital, this is “Washington Week with Gwen Ifill.”
ANNOUNCER: Once again, live from Washington, sitting in for Gwen Ifill this week, Doyle McManus of the Los Angeles Times.
MR. MCMANUS: Good evening. The issue of same-sex marriage was front and center this week in Washington as never before. Before the Supreme Court, two cases focused on the same social issue but raising very different legal issues. Supporters and opponents were hoping the court would clarify whether gay and lesbian couples have the right to marry. And if so, should they have the same benefits as opposite-sex couples? In one case, a challenge to the Defense of Marriage Act passed by Congress and signed into law by President Bill Clinton in 1996, defining marriage as between a man and a woman.
MS. KAGAN: (From tape.) Well, is what happened in 1996 – and I’m going to quote from the House report here – is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?
ANTHONY KENNEDY [Supreme Court Justice]: (From tape.) When it has 1,100 laws, which in our society means that the federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.
MR. MCMANUS: Joan, tell us how this case got to the court in the first place?
JOAN BISKUPIC: Well, it began with a New York couple, two lesbians. Edith Windsor is the survivor, and her spouse, Thea Spyer, had passed away. And because she was a woman, Ms. Windsor got socked with a pretty high estate tax bill that she wouldn’t have gotten socked with if her partner had been a man.
So she sued because the Defense of Marriage Act has a separate provision that says, because marriage is only confined to a man and a woman, she must pay these taxes. So it came up through lower courts, all of which had said in her case and in others that it was unconstitutional.
And here comes to the Supreme Court with the Obama administration no longer defending the law, but a group of bipartisan, mostly Republican dominated House members, coming in to defend it saying, no, this should still be on the books. So it began with this couple. In fact, Edith Windsor was there in court on Wednesday to hear the arguments.
MR. MCMANUS: Pete, Justice Anthony Kennedy, who’s usually kind of a swing vote, seemed most concerned that this was a case of the federal government moving into an area that’s really a state area.
PETE WILIAMS: Right. There were two arguments against the law. One is that it’s on discrimination. It’s treating same-sex couples and opposite-sex couples differently – the federal government is.
But, secondly, and I think the argument that seemed to intrigue him more is that the definition of marriage has never been something the federal government is engaged in. Questions about who gets to divorce, adoption, children, all these family law questions have traditionally been for the states to decide. And that bugged Justice Kennedy the most. If he is going to vote to strike down DOMA, and I think Joan and I agree that we think he will, I think that’s the reason he’ll use.
MR. MCMANUS: OK. Now, that was the first case. Now, the second case before the court was a challenge to California’s Proposition Eight, the state referendum in 2008 that prohibited same-sex marriage. Now, that law was overturned by lower courts and that prompted an appeal to the Supreme Court. But the justices seem conflicted about taking up the issue at all. Pete, what was going on?
MR. WILLIAMS: Well, I think they have two problems with it. One is that whether the Prop Eight proponents have the legal authority to bring this case, given that the state folded up and said, you know, we think it’s unconstitutional too and we don’t want to do anything about it. So there’s that question about whether they had the permission to come in the courthouse door.
But, secondly, I think there’s a more basic thing here. I think when the justices got looking at it, they said, you know, we’re just not ready to decide this case. They think to themselves either, as they listened to the argument, we don’t think we have five votes for anything here, and so maybe it’s just better to punt and let this issue come back to us later.
MR. MCMANUS: Let’s hear what the justices had to say.
MR. ALITO: (From tape.) Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in the Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition Eight apparently believe.
SONIA SOTOMAYOR [Supreme Court Justice]: (From tape.) If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?
MR. KENNEDY: (From tape.) The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor: there’s a wonderful destination or there’s a cliff.
MR. MCMANUS: Joan, could the hesitation the justices are expressing about taking this issue at all end up being central to what they decide?
MS. BISKUPIC: Yes. And this is really the most consequential part of what we heard this week, because the lawyers who were challenging Proposition Eight, Ted Olson and David Boies, were saying, now only should you strike down this ban in California, but you should also say nationwide that same-sex marriage should be constitutional.
So the resistances that you heard in those clips are exactly what’s going to probably prevent them first of all – and I think we really agree on this, Pete – first of all, saying nothing about same-sex marriage rights nationwide. I don’t think they’re going to say you either got the right or that you don’t have the right, which some of the advocated had feared that.
But then I think crucial is what will happen in California. Now, no matter what they do, it seems like you will still be able to say Proposition Eight goes down, because if they suddenly have such cold feet they dismiss the case, the lower court – one of the lower court rulings will stand rejecting Proposition Eight. So one way or another, I think California is going to have same-sex marriage, but nationwide, no way.
MR. WILLIAMS: And it’s also possible that the rulings in both these cases will have almost nothing to do with gay rights. If it’s about federalism and DOMA and if it’s about, you know, who gets to sue in the Prop Eight case, it’s not going to say much about gay rights at all. It’s possible. We don’t know for sure.
JOHN HARWOOD: Guys, I have a question for you about your read of the justices from being in the court. You know, after what happened on the health care law, everybody say, oh, boy, you can’t tell from the questions which way the court is going to go. But both of you all seem to have a fairly strong instinct as to where they’re going. What makes this case different and why do you think you can read the justices better than people have been able to do in the past?
MR. WILLIAMS: Well, I think a couple of reasons. First of all, we have to always caveat by saying, who knows what’s going to happen? I mean, you can say what you think they feel right at the end of oral argument, but that’s not the end of the day. They’re going to exchange notes and try to persuade each other. And who knows how it will come out.
But I think the main thing is it was – this was easy. We were all watching Justice Kennedy for two reasons. One is it did seem the other four went into their corners pretty quickly. And, secondly, he’s written the two most important gay rights rulings that the Supreme Court has ever put out. So you have to watch him. He’s key.
MS. BISKUPIC: The other thing is even before the justices took these cases back in December, when they announced that they were going to hear both, we already sort of suspected that it would be very predictable for them to do what lower courts had done in DOMA. As I said earlier, no lower court has said that the Section Three, denying benefits to same-sex couples that are allowed to heterosexual couples, is constitutional. So it would be very predictable for the court to do that one.
But yet, to say – this court, this conservative leaning court to say for the first time that there’s this national constitutional right to same-sex marriage. So it was in some way surprising that they took both of the cases together. And so that kind of threw people. And then, all the hooplas surrounding this kind of threw people.
But the truth is that this is a court that not just in terms of ideology is conservative, but in terms of where they’re going to start reaching out. So, John, to reinforce what Pete said, once we started hearing more of those kinds of signals from the court, I think it was easy this time to predict.
MR. WILLIAMS: Yeah.
DAN BALZ: But given – I mean, given the ambivalence that they’ve stated about the Prop Eight case, why did they take it to begin with?
MR. WILLIAMS: Now, here’s where we really guess because this is the part of the Supreme Court that’s invisible to us. Nine justices, it takes five votes to win, but it takes four votes to grant a case. It seemed pretty likely that the four conservatives wanted to take this to overturn the lower courts to let Prop Eight stay in effect. And they probably thought they had Justice Kennedy with them.
And I thought during the argument, it was basically Justice Kennedy saying to the other guys, I never wanted this thing in the first place. And I think he’s just not ready – nor is the court ready to say, Mississippi, you have to let same-sex couples get married. They’re worried about a backlash potentially. And they just don’t see it – they just can’t get the – find a way to get there.
MR. BALZ: If they strike down DOMA on a states’ rights argument, how does a future court then come back and declare that there’s a – that same-sex marriage –
MS. BISKUPIC: That there’s an equality issue?
MR. BALZ: – is constitutional nationally?
MS. BISKUPIC: Well, they can do that with another case. In fact, I imagine that the gay rights advocates who want same-sex marriage nationwide, you’re going to see another case come up. You’re going to – this is going to keep going on. Look at what’s happened with the public opinion. Look what’s happened politically. There certainly is a momentum building.
But if the court rules only on the states’ rights issue, it doesn’t preclude it from ever saying later that there is a constitutional equality guarantee to same-sex marriage. In fact, Justice Kennedy said at one point to the Solicitor General Donald Verrilli, don’t make us go there yet. You know, if we can decide this on states’ rights, we don’t need to go to equal protection.
MR. WILLIAMS: But no matter how the reasoning goes, if they strike down DOMA, it will still be a big deal. It will still be a very significant victory for gay rights.
MR. HARWOOD: But is the dynamic that you were describing as simple in human terms as somebody who’s slow to change, wanting to do it just by degrees, and they know where they’re ultimately going to end up; they just don’t want to do it too fast?
MS. BISKUPIC: Oh, they definitely don’t want to do it too fast. Think of these nine. In fact, in some ways, this court might be more conservative on this issue overall than it was in 1996 and 2003, because Samuel Alito has succeeded Sandra Day O’Connor. And he is more conservative than she is on a lot of social policy. So it’s a group that tends to move incrementally anyway. And, again, just think of what was being asked here, a major constitutional right.
MR. MCMANUS: Let me ask you a quick practical question.
MS. BISKUPIC: Sure.
MR. MCMANUS: If the court does what you say what it’s going to do and it strikes down the Defense of Marriage Act, which is the DOMA you keep talking about.
MR. WILLIAMS: Right. Thank you.
MR. MCMANUS: OK. Does that mean that a couple – a gay couple that gets married in New York City and then moves to Salt Lake City, where they don’t have gay marriage, is going to be operating under two different sets of laws at the same time?
MR. WILLIAMS: Two things about that. Number one, it’s well to remember that if the court does strike down DOMA, it only applies in the states that have already allowed same-sex marriage. Other states don’t have to grant it. But the answer to your question is nobody knows.
MS. BISKUPIC: Well, and to remind everybody, just nine states in the District of Columbia allow it. And it would really be a patchwork, Doyle, of benefits for people if the court goes the way we think it’s going to go.
MR. MCMANUS: OK. Thank you. There’s also been striking movement on same-sex marriage in the political arena, where a number of high-profile politicians coming out in support. The latest were four Democratic senators this week, three from the red states of North Carolina, West Virginia and Missouri. Those political wins were not lost on Chief Justice John Roberts.
MR. ROBERTS: (From tape.) You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?
ROBERTA KAPLAN [Attorney for Edith Windsor]: (From tape.) With respect to that category, that characterization of the term for the purposes of heightened scrutiny, I would, Your Honor. I don’t –
MR. ROBERTS: (From tape.) Really?
MS. KAPLAN: (From tape.) Yes.
MR. ROBERTS: (From tape.) As far as I can tell, political figures are falling over themselves to endorse your side of the case.
MR. MCMANUS: So, Dan, are these sudden conversions an example of politicians leading the pack or coming in behind?
MR. BALZ: I think we know the answer to that. I mean, when are politicians leading on an issue like this?
You know, the legal systems and the political systems are in very different places on this issue. And the shift in public opinion on this issue is as dramatic as anything we have seen on any major issue like this. A decade ago, a sizeable majority of Americans opposed legalizing same-sex marriage. Today, we’re at the point where half or perhaps more in terms of public opinion say these marriages should be legalized.
I mean, to give you a sense of how rapidly this has changed, it was less than a year ago that President Obama announced that he now favored same-sex marriages being legal. This week, Rush Limbaugh announced that this battle was lost. I mean, his quote was, “This issue was lost I don’t care what the Supreme Court does.” I mean, that sea change is amazing.
The other one to think about is that the Proposition Eight case came out of California. It was passed just four years ago, by 52 percent of the vote. If it had been on the ballot last November, it is very likely it would not have passed. It’s a very blue state. So public opinion is just moving as such a clip that the politicians are scrambling to catch up with it.
MS. BISKUPIC: It interests me though that – the southern states, because what we’ve seen in polls is that there’s still a division between the north and south on this issue and that people who live in the north are much more likely to support same-sex marriage than in the south. But several of the people who you’re referring to didn’t come out –
MR. BALZ (?): Wasn’t that what the civil war was about? (Laughter.)
MS. BISKUPIC: But several of the people who you have referred to are in southern states now.
MR. BALZ: Well, I mean, one of the things you’re seeing is that there is a difference between Democratic politicians and Republican politicians. The people who Doyle mentioned are all Democrats. Two of them just got through elections. During the election campaigns, they were not in favor of legalizing same-sex marriage. They don’t have to run again for six years. They can see where public opinion is going. I mean, no Democrat in the past, in a presidential campaign, has supported same-sex marriage until President Obama. It’s conceivable that any of the people who run for the Democratic nomination in 2016 will be opposed to legalizing so –
MR. MCMANUS: Well, what about on the Republican side?
MR. BALZ: Well, the Republican side is different. I mean, there are a few Republicans, as we know, who are in favor of it. Rob Portman, the senator from Ohio, just announced his change in position 10 days ago or so, primarily because of his son, who is gay. Dick Cheney, who has a gay daughter, similarly, has long been in favor of this. But they are in the minority in the Republican Party.
If you look at the trend lines, every group – it doesn’t matter what they are, age group, income group, party ID – all of the lines are moving up. But the Republicans are still wholly opposed to this. In the latest Pew poll, 49 percent nationally supported. Only 27 percent of Republicans support it.
MR. HARWOOD: Dan, I was talking to Barney Frank, the former Democratic congressman from Massachusetts, about this the other day. And he said, you know, what’s astonished me is the pace of this thing. He said, when I was a young man, I realized that I was attracted to men personally and attracted to government professionally. And I assumed that the former would interfere with the latter. Now, I think my attraction to men is more politically acceptable than my attraction to government. (Laughter.) What is the source of that rapid change? Is it about simply a generational difference? Is it more and more people knowing someone who’s gay? What –
MR. BALZ: John, I think it’s both. There’s no question that this is being led in terms of public opinion by younger voters. Eighteen to 29-year-old Americans, in our latest poll, 81 percent said they think this should be legal. Every – it just steps down with every other age group.
Now, every age group, as I said, is moving up in terms of its support. But as the silent generation passes away, they are still the most opposed. And the younger generation enters the blood stream, public opinion is just going to keep moving. But the other point you make, I think is right. I mean, there’s a – again, a recent Pew poll that asked among people who have changed their minds, why did you change? A third said, I know somebody who is gay or lesbian. And that has had a profound effect.
MR. MCMANUS: Thanks, Dan. Another hot button issue, gun legislation, in the wake of the Newtown tragedy. President Obama, at the White House, marking the 100-day anniversary of the shootings, urged Congress to make meaningful changes in gun laws.
PRESIDENT OBAMA: (From tape.) In my state of the union address, I called on Congress to give these proposals a vote. And in just a couple of weeks, they will. Earlier this month, the Senate advanced some of the most important reforms designed to reduce gun violence. All of them are consistent with the Second Amendment. None of them will infringe on the rights of responsible gun owners.
MR. MCMANUS: But while the Senate will take up the issue next week, it may be far from the sweeping change the president was hoping for. And public support for new gun laws appears to be softening as well. So, John, what’s changed since December?
MR. HARWOOD: Well, the first thing that’s changed is the passage of time. And what – we saw a spike in support for stricter gun laws after Newtown. We’d seen that after some episodes in the past. It fades. And this is – earlier we were talking about the astonishing change in attitudes towards same-sex marriage. This is a case where change has not come in a dramatic way to public opinion.
And you could see on the president’s face the – his frustration with the fact that he believes he’s losing this argument right now. You have – there are various political dynamics in this. You’ve got Democratic senators who are from more conservative states, who have reservations about some of the steps the president was advocating, including Harry Reid, the Democratic leader.
And you’ve had a very engaged argument not the NRA alone. They remain extremely powerful. Mike Bloomberg, the outgoing mayor of New York, has invested some of his billions in this – in this effort to try to join the argument, but it is very difficult to overcome resistance especially in southern areas, in rural areas, where gun ownership is so well entrenched culturally and the president – his hopes for an assault weapons ban looks like they’re going nowhere.
The question of background checks is something that remains on the table. It has a lot of appeal in the polls, but there’s some practical objections that the NRA makes and some lawmakers are listening to it. And, finally, you’ve got Republicans mounting a filibuster to try to keep this from ripening on the floor. And it’s unclear whether Democrats can beat it.
MR. WILLIAMS: So that’s the minimum you’d get? You get the assault – the high-capacity clips and maybe the gun trafficking?
MR. HARWOOD: It seems to me the gun trafficking is the de minimis outcome. That is something that prevents straw purchasers from buying guns, avoiding –
MR. WILLIAMS: Raises the – (inaudible).
MR. HARWOOD: Yes. And avoids the background checks in that way. But I don’t know about the high-capacity magazines. You know, there was disclosure this week from officials in Connecticut about the magazines that Adam Lanza used in Newtown, three bullets to a clip. And, you know, the Colorado, state of Colorado had just passed a ban on magazines more than – have more than 15 bullets in them. But many members of Congress are reluctant to go there and the NRA is very strongly opposed. So it’s an uphill fight.
MR. BALZ: What’s the view in the White House at this point? Are they highly nervous about this? Are they still confident that, in the end, they will be able to get something more than the minimum?
MR. HARWOOD: I think they’re chastened by what they’ve seen. But not all that surprised, honestly. Remember, this was not on the president’s agenda at all until Newtown. And there’s a reason for that.
We talked about Barney Frank a minute ago. Barney Frank, during the mid-1990s, said to his fellow Democratic lawmakers – this is after they passed the Brady bill and the assault weapons ban in the 1990s and they saw some backlash from that – they said, look. This is an issue that divides our party. It doesn’t advance us politically. We’ve got to pipe down on that.
MR. WILLIAMS: Yeah. And the president ran away from this in his first term.
MR. HARWOOD: Exactly. So I think they recognized that it was difficult. This was very much I think driven by the president, his reaction as a father. You saw that after Newtown, when he came out. And almost as if he was scalding himself for having run away in this first term, and said, we can’t forget these victims. He came out with that message again, but it’s a difficult slog politically. And I think, at some point, they’ll get very practical about it and see whether can you get a background check bill, and if not, can you get the magazines and the traffic.
MS. BISKUPIC: John, it’s been so interesting what the polls had showed, how the drop came so quickly from December. Was there anything that the administration could have done, very fast, at the time, gotten everybody mobilized and actually tried to pass something at a much faster timetable to take advantage of that moment?
MR. HARWOOD: I doubt it because of the resistance that was in place. And, remember, the Newtown shooting happened as the administration was preparing to face the fiscal cliff and all the budget issues that were locking up Democrats and Republicans and posing real risk to the economy. So you had that. You had the immigration issue, which is one where, in fact, attitudes have changed largely because of electoral results. And I think the administration has got to prioritize. And I don’t see another path, a surer path to victory for them.
MR. MCMANUS: John, thank you. That will have to wrap it up for tonight. Gwen will be back next week with a big announcement for all of our online fans. And, you can join her for her monthly chat next Thursday, at noon, Eastern Time. Go to the “Washington Week” website for details.
Thanks for joining us. I’m Doyle McManus. To all those who celebrate, have a very happy Easter. Good night.