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What’s next in the legal battle over same-sex marriage? – Part 2

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  • GWEN IFILL:

    We return now to the Supreme Court's decision not to take up same-sex marriage with Marcia Coyle of "The National Law Journal."

    Big day today at the court, Marcia.

  • MARCIA COYLE, The National Law Journal:

    Very interesting, Gwen.

  • GWEN IFILL:

    Was it a surprise to you?

  • MARCIA COYLE:

    Yes, it was.

    I mean, conventional wisdom from court scholars, litigators, was that the court was ready, it was going to take one of the cases that it had pending.

  • GWEN IFILL:

    So, we don't really know why they didn't.

  • MARCIA COYLE:

    We don't.

    When the court issues a decision not to hear a case, as it did today, it generally doesn't comment unless there's a dissent from that decision. so we don't know what went on in the minds of the justices, and we're also told with these kinds of decisions not to read too much into them. But that didn't stop speculation today.

  • GWEN IFILL:

    Does it settle things or does it unsettle things?

  • MARCIA COYLE:

    There's speculation about why the judges did what they did.

  • GWEN IFILL:

    Yes.

  • MARCIA COYLE:

    And I think there are two schools of thought here.

    First of all, the three appellate courts that have ruled thus far have struck down bans that states enacted. Justice Ginsburg suggested earlier this summer that the court may want to wait until there's a ruling upholding a state ban. That creates what we call a split among the circuits. And it gives the justices the benefits of full reasoning on both decisions.

    We're waiting right now for rulings out of the Sixth Circuit, which may very well provide that conflict. And then the second school of thought is maybe a little more strategic inside the court and it goes back to the 2013 ruling when a 5-4 court struck down the definition of marriage in the federal Defense of Marriage Act.

    The four dissenters were the court's most conservative members. It may be that when they went into conference on the new petitions on same-sex marriage, that those four didn't see a fifth vote to go their way to uphold states' rights.

  • GWEN IFILL:

    Wouldn't it just have taken one of them in order to bring this — to take this…

  • GWEN IFILL:

    … these cases?

  • MARCIA COYLE:

    Yes, but — but they have to look down the road.

    If they grant review, what's the point if they can't get that fifth vote for a majority and might instead take a case that could result in a broad national ruling that they don't want?

  • GWEN IFILL:

    Let's walk through some of these states and the immediate impact.

    In the Fourth Circuit, we're talking about Virginia, Indiana and Wisconsin, we already saw some marriages begin today.

  • MARCIA COYLE:

    Now, the Fourth Circuit, actually, you're right, it is Virginia, but the Fourth Circuit also covers North Carolina, West Virginia and Maryland.

    Maryland already has legal same-sex marriages. Almost immediately after the decision not to hear the case, the Fourth Circuit, the federal appellate court, lifted — issued its mandate, its decision that marriages could go forward. We also saw motions made in — for the North Carolina and West Virginia cases to allow same-sex marriages to go forward.

    We will see the same thing happening…

  • GWEN IFILL:

    In the 10th Circuit.

  • MARCIA COYLE:

    … in the 10th Circuit, which had only two states before it at the time, Utah and Oklahoma, the other states that are within the 10th Circuit, as well as the states that are within the Seventh Circuit that ruled in Indiana and Wisconsin.

    Those lower federal appellate courts are bound by the decisions of their federal appellate courts. So we can probably same-sex marriages going forward in those states as well. That's how we get from the five states that the courts dealt with today, the Supreme Court, to the 11 states that are likely to allow same-sex marriages going forward.

  • GWEN IFILL:

    And added to that 19 more states who haven't been challenged.

  • MARCIA COYLE:

    That's right.

  • GWEN IFILL:

    And so we're talking about a majority of the states and the District of Columbia.

  • MARCIA COYLE:

    We are, 30 states and the District of Columbia.

  • GWEN IFILL:

    So, I know it — you try resist reading too much of the tea leaves here, but I do wonder if you see signs based on your understanding of the way the court operates between what we saw last year with the Defense of Marriage Act and their stepping away, at least for now, from these cases that the court is, I don't know, paying attention to popular opinion?

  • MARCIA COYLE:

    Well, it may well be that it sees the trend in the lower federal courts that these bans are falling and doesn't see any urgency right now to step in, allow more states to deal with the — more federal courts and states to deal with the issue.

    There are cases still coming up that we will probably see at the Supreme Court. And at that point, we will have to see what the court does. It may be ready, it may not be ready to step in again.

  • GWEN IFILL:

    Always potential for surprise.

  • MARCIA COYLE:

    About.s

  • GWEN IFILL:

    Marcia Coyle, thank you very much.

  • MARCIA COYLE:

    My pleasure, Gwen.

  • GWEN IFILL:

    So, we turn now to two guests who have been fighting hard on both sides of the issue, Evan Wolfson, president of the gay rights group Freedom to Marry, and Austin Nimocks, senior counsel for the conservative group Alliance Defending Freedom.

    Welcome to you both.

    Evan Wolfson, is this a watershed moment in a good way for you?

    EVAN WOLFSON, Freedom to Marry: It is unquestionably a watershed moment for the country.

    Already, couples are getting married in five more states, actually six, with Colorado following the lead. As Marcia just said, we now have brought the freedom to marry effectively to 30 states, covering 60 percent of the American people. That's almost two-thirds of the American people soon, and living in a state where gay people can share in the freedom to marry.

    And it's also an unmistakable signal from the Supreme Court to the lower courts and to the other courts and states, saying that there is no reason for denying the freedom to marry any longer and they should move forward.

    But, at the same time, though a glass 60 percent full is better than the alternative, there are 20 states where people are still discriminated against, still being harmed. And it's time for the country to come together in national resolution in favor of the freedom to marry.

  • GWEN IFILL:

    Well, let's get back on that — that patchwork question.

    But, first, I want to ask Austin Nimocks about something we heard the governor of Utah say today, which is, hey, I still believe what I believe, but it's not worth the money to defend this anymore.

  • AUSTIN NIMOCKS, Alliance Defending Freedom:

    Well, he had a ruling go directly against him.

    And, as Evan just mentioned, there are still 20 states out there. There's litigation across the country. We have four federal circuits that have not yet chimed in on this particular question, the Sixth, the Fifth, the Eighth and the 11th.

    And so we're a long way from having any form of national resolution on this question. And Americans are going to continue to debate this regardless of what the Supreme Court does or doesn't do. And if we are going to step forward as a nation, I think it's important that this question be answered by Americans and not be imposed by judicial fiat.

    That's really the most unfortunate thing about today's decision, is that we have judges making decisions on questions that Americans are perfectly capable of answering.

  • GWEN IFILL:

    Would you have felt the same way if a court had ruled the other way and had decided to take these cases and ended up on your side?

  • AUSTIN NIMOCKS:

    Oh, absolutely, because the court would be taking and reviewing cases where federal courts had imposed their will against the will of the people.

    And the people are mature enough and understand enough to debate the questions about marriage and make decisions. Do we want laws that affirm mothers and fathers? Do we not care about mothers and fathers? These are some of the things Americans are talking about, and they need the freedom to continue to do that.

  • EVAN WOLFSON:

    Well, the fact of the matter is…

  • GWEN IFILL:

    Go ahead.

  • EVAN WOLFSON:

    Yes.

    The American people have indeed been talking about who gay couples are and why marriage matters and the love and commitment in these families, and have come out in favor to have the freedom to marry; 59 percent of the American people support freedom to marry.

    We did a poll last week in Utah, the reddest of red states, and showed a plurality, 49 percent, favoring the freedom to marry. The courts are following where the people are, but, in fact, what we have in this country is a Constitution that says that not everything should be put up to a vote, and it matters to couples who are being denied day to day.

    They don't have time to wait for some unanimous vote of everybody to treat them the same under the one Constitution that protects all of us.

  • GWEN IFILL:

    Austin Nimocks, one of the things Marcia said is that there are other shoes yet to drop. Is that what you're counting on?

  • AUSTIN NIMOCKS:

    So, yes, there's lot that is left to happen as far as that is concerned.

    Like I mentioned, you have the four circuits in the 20 states who are continuing to debate this issue and litigate it in the courts. And we are looking — there are federal courts that have ruled in favor of marriage. The Eighth Circuit has ruled in favor of marriage. A Louisiana federal judge ruled in favor of marriage.

    We have seen courts in Tennessee and Mississippi rule in favor of marriage. This is not over with by any stretch of the means.

  • GWEN IFILL:

    But do you have any sense that…

  • GWEN IFILL:

    One second. I will be right back with you, Evan.

  • EVAN WOLFSON:

    Sure.

  • GWEN IFILL:

    But does it feel at all like to you there's a sense of inevitability that is kicking in here?

  • AUSTIN NIMOCKS:

    Well, the only thing that is inevitable is that the Supreme Court can't settle this issue, any more than it settled the question of abortion in this country.

    If the Supreme Court ultimately wants to drop a shoe and say we're going to impose same-sex marriage in all 50 states, the American people can choose to accept it or not, in the same way that they have chosen to reject the row Roe against Wade decision.

    So, this decision is going to continue to be debated and dealt with by Americans, who are living marriage every day. We don't need courts to impose its will against the people or take it away from the people. If the people want to change marriage laws, let them change marriage laws, like they have done legitimately in other states. We don't need federal judges doing it for us.

  • GWEN IFILL:

    Well, Evan Wolfson, this is an interesting point, which you're the one who brought up the question of it being a patchwork still in place. Is that an acceptable way to move forward?

  • EVAN WOLFSON:

    Absolutely not.

    People who live in the United States live under one Constitution. We're all are individuals. We all have those same freedoms and rights and protections. And we all have the same aspirations to love and commitment and building a life together. And marriages shouldn't sputter in and out like cell phone service depending on which state people happen to be in.

    We're one country with one Constitution. And the reason we have courts is that, sometimes, when there is discrimination, sometimes when the politicians get it wrong, we have courts and a Constitution to guarantee those freedoms.

    But you know something? This is a happy moment, where what the courts are doing is catching up to where the country is.

  • GWEN IFILL:

    But let me…

  • EVAN WOLFSON:

    Mr. Nimocks talked about a handful of judges who went the other way. There are more than 40 state and federal courts that have looked at this question, now including the U.S. Supreme Court, and have said there is no good reason to continue this discrimination.

  • GWEN IFILL:

    Let me ask about the U.S. Supreme Court. And let's take a step back from this.

    Does a ruling or a non-ruling like today affect the Roberts legacy, the legacy of the Roberts court in your mind, Austin Nimocks?

  • AUSTIN NIMOCKS:

    Well, I think that that's a good question. That may be a bit premature at this point, because, as Marcia said, this is far from over with.

  • AUSTIN NIMOCKS:

    The Supreme Court stepping away from this first wave of cases doesn't mean it is going to step away from the second wave of cases or the third wave of cases.

    So, it's a little early to see what the court's legacy is on this. What we're hopeful for is that the court's legacy on this question will be one of restoring it to — restoring the question to the American people.

    If they want to vote on same-sex marriage, let them vote on same-sex marriage the way they have done in several states. If they want to maintain marriage as one man, one woman, let them do that. And different states differing is the most American thing we can have in this country.

    States differ on all kinds of important legal questions all the time. That's what makes America great.

  • GWEN IFILL:

    Evan Wolfson, on the Roberts legacy piece.

  • EVAN WOLFSON:

    Yes.

    Well, first of all, what makes America great is that we have a Constitution that protects liberty and justice for all and treats all of us equally and guarantees that equality, not — doesn't put it up to a vote, your freedom of religion, my freedom of speech getting put up to a vote.

    We have basic freedoms. And that's why we have a Constitution. But, fortunately, we also have hearts and minds that when people listen to the real stories of real families and look at their love and look at the joy that's spilling out now in Utah and Oklahoma, in the other states that we have won today, and they see families helped and no one hurt, the American people, like the courts, have affirmed the freedom to marry.

  • GWEN IFILL:

    OK.

  • EVAN WOLFSON:

    And I think it will be in the Roberts court's interest also to put its stamp on this movement in our country, in the same way that the Supreme Court, having ducked interracial marriage at first, embraced the freedom to marry in the Loving decision two generations ago.

    I think that's where we're headed. And whether it's through the multiple lower courts that are ruling in our favor…

  • GWEN IFILL:

    All right.

  • EVAN WOLFSON:

    … or through that Supreme Court, we're going to be working until we have brought the freedom to marry home nationwide.

  • GWEN IFILL:

    Evan Wolfson of Right to Marry and Austin Nimocks of the Center for Marriage and Family and Alliance Defending Freedom, thank you very much.

  • AUSTIN NIMOCKS:

    Thank you.

  • EVAN WOLFSON:

    Thank you.

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