Get Used to It: Ep. 126, "Same Sex Marriage Ban Amendment Failure"

(keyboard cluttering) (upbeat instrumental music) - Hi, welcome to "Get Used To It". I'm Sheila Kuehl, your hostess for this fabulous hour of talk. Today, we're gonna talk about a constitutional amendment that is not going to be a constitutional amendment, and why. Most of us read in the paper that President Bush was expending a great deal of energy trying to get the Congress to vote for an amendment to limit the rights of gay and lesbian people to marry. At least that's what he said the amendment was about. And most of us read in the paper that for some reason, we didn't quite understand, it failed, even though it didn't really come up for a vote. So I thought it might be good for us to hear a little bit about the amendment, what happened, what it's about, what happens in Congress, what it might mean to the law, and other interesting stuff. So, I have three wonderful guests today. Jenny Pizer, who is senior counsel at Lambda Legal here in Los Angeles. Welcome Jenny. - Thank you. - John Heilman, who is a professor of law at Whittier Law School, and coincidentally the mayor of West Hollywood, where we happen to shoot this show. Welcome John. - Thanks, Sheila. - And Charles Stewart, who is field deputy to Congress member, Diane Watson, who works here in the district office in Los Angeles. Welcome back, Charles. - Thank you. - So Jenny, let's start with you. Just sort of the basic stuff, this amendment to the United States constitution, first of all, what did it say and what would it have done? - Okay, well, this proposed amendment, and there have been different versions in the past, but this particular one had two parts, and I'll describe both of them. Most of the attention has been on the first sentence, which said, "Marriage in the United States shall consist only of the union of a man and a woman." And that's where most of the attention has been. But there was a second sentence. Some people call it the sleeper sentence, that had much a broader potential effect. And in brief what that said was that neither the federal constitution nor any state constitution could be construed. And construction is done by courts. - Right. - So this would be denying courts an opportunity to interpret the federal or state constitution to require that marriage or the legal incidence of marriage be conferred on any union, other than a man or a woman. Multiple parts to that sentence. Basically what that is about is saying, marriage or any of the legal protections or rights or benefits that usually come with marriage could not be ordered to be provided as a matter of equality to same-sex couples. - So immediately it does away with Massachusetts's ability to say, "Under our constitution, you can't deny same sex couples the right to marry." But in addition, it denies all the other states that have domestic partner legislation. - Well, it creates a very serious risk of that. Technically what it says is that a state constitution can't be, or the federal constitution, all of these, the state and federal constitution include equality guarantees. - Right. - So it means that lesbian and gay people could not go to court and say, "The state is treating me unequally, because I'm required to pay different taxes and I can't have health coverage, and I'm treated differently in all these state programs. I'm denied equality in all these different ways." And have a court say, "Yes, in fact, that's true. That's not equal protection, and you're entitled to equal protection." For example, there's been litigation in quite a few states that says that government workers are entitled to equal health benefits. And if they're not married and they're in a domestic partnership, they should still get equal health benefits as a matter of equality under the state constitution. That kind of litigation would be impossible. But it's not just that, it's also the way this kind of language is construed. We've had litigation here in California, where language about marriage was used by these religious conservative groups to attack the domestic partner law. - Right. - It happened in other states as well, and has been used to deny health benefits, for example. Also to deny domestic violence, restraining orders, and lots of different things that are incidents of marriage. So, the scope of it is potentially very broad. And of course, it's partly what we think of today. But this is very confusing language, much of it is really unprecedented. So, part of the threat is when you have vague, confusing language, how it might be used or interpreted by courts and also by governments, as a reason to not provide legal protections or to repeal things that exist. - And so what happened to this proposed amendment? We don't wanna scare everybody out there because it's not going to be circulated to the states, but... - Well, some very important arguments were made in the Senate and in the public arena, some of which we'll, others we'll be talking about. But let me identify a couple of the arguments that were laid out, and that people need to have a good grasp of. First of all, it was pointed out that the hypocrisy in this measure that in the name of quote, family values and a conservative party, the federal government should engage in this massive power grab and strip states of the ability to protect families. The family law area is the primary area of state authority historically. The founders thought of the states, the phrase has been used, the laboratories of experimentation. I mean, because it was understood that states really vary, culturally were diverse in this society, and that different parts of the country have different family law. So states have primary authority. Well, this measure and the name of family values would strip states of the ability to protect families, whether it's through marriage or through having their constitutions protect using something else. - So you see this not only as a threat, the way people have been talking about it to our community and our individual lifestyles but really kind of a much broader area, where you're saying, "We don't care what your state constitution says. It cannot be invoked to protect equality." And there's been so many examples in other communities where state constitutions were used earlier than the federal constitution was interpreted, kind of the place where we are right now, for women, for instance, and women's rights, because the state constitution in California was interpreted to provide strict scrutiny to those laws that might present women with unequal situations, where the federal constitution hadn't been interpreted that way yet. So this is a major threat to states' rights, as I guess they're called. - That's right. I mean, that's sort of a part of one of the pieces of profound hypocrisy here, is in the name of conservative values to deny states rights. Another part of it that's really, it's a threat and it's quite offensive when you think about American values, is the idea of court stripping, denying courts the ability to hear cases about the constitution. I mean, the only reason this country exists as a country is that the protections in the constitution came with a bill of rights that said, the majority will decide things, but there must be protection for minority rights. And that's the right of individuals, but it's also the right, that is individuals to be protected against a big powerful federal government, but also of minority groups. That was the key agreement that allowed our country to be born. Well, you can't strip the courts and unbalance our system of government and expect to retain the vitality that we've had. I mean, the ability of the constitution to do its job is thwarted if the court can't enforce it against a majority vote. So, it's partly the way it upsets the balance of power. But as you said, it upsets the way the history usually evolves when it comes to expanding protections for individuals and minorities. I think of our movement as being at the front end of the arc. We have to make our way up the front end of the arc in state courts and in local advocacy, the role of cities like West Hollywood and other cities, to percolate ideas and move things forward. It has to happen before we get more to the crest of the arc, where the federal government then sometimes can take the role of dragging the rest of the country forward. - Right. - But we haven't really gotten there yet. And if the courthouse doors are slammed, and the constitution is amended in that fashion, then it really, it tosses us off the path. - John, the founding fathers as they're called, and I guess they were, made it kinda hard to change the constitution. But it has been changed a number of times. Is there anything particularly different about this attempt to change the constitution? - I think there is. As you said, there is a real difficult process to amend the constitution. It's set forth an article five of the constitution, and it requires a two thirds vote in both Congress, in both houses of Congress. There's another method through the state's calling for a constitutional convention, but that's never been done in this country. And after it goes through both houses of Congress, it then has to be ratified by the legislatures of three quarters of the states. So the founding fathers really did want to make this process extremely difficult. And that's because the constitution is our document that governs society. It's what created, as Jenny was saying, this country. And it shouldn't be changed willy-nilly because of the political fad of the month or because of a group of legislatures getting together and deciding they wanna do something different. In terms of the changes, the amendments that have been adopted and approved over the years, most of them have to do with either expanding rights or they have to do with technical, governmental structural issues like the succession to the presidency or pay for Congress. But most of the rights that we think about contained in the constitution are ones that are granted by various amendments. The first 10 amendments, of course, being the bill of rights. And as Jenny said, that was kind of a compromise to get the constitution approved, that we would have these protections, the right to bail, the right to jury trial, the freedom of religion, the freedom of speech. So those protections were adopted very early on, I think in 1791. The other amendments had to do with prohibiting slavery, guaranteeing equal protection, granting 18-year olds the right to vote, granting women the right to vote. The only time the constitution has really been amended in a way that was, I think you could describe it as restricting rights was prohibition. - Right. - And that was a complete disaster in this country, and it was eventually repealed. So the idea that Congress or the administration is gonna try to amend the constitution, not to expand our concepts of liberty, not to expand our notions of equality, but to restrict them in some way, and also to attack state courts' ability to interpret their own constitution. That's really pretty unprecedented. - Have your students talked about this at all? - It's amazing that we do talk about it in class. And what's amazing for me is I remember my experience in law school where gay rights issues were just not talked about. And it wasn't that long ago, although I'm aging. (Sheila chuckling) - Hey, I was your professor so we know. - I know. - How long ago it was. (Sheila chuckles) - Now, the students, even the conservative ones, don't buy into all of this anti-gay agenda, all of the attacks on the gay community. And they think that this constitutional amendment is silly, except the really hardcore ones who even think it's silly, but go along with it for political purposes. And that's clear what this was all about. This is a political attack on our community to try to drum up support among their core Christian Right conservative followers. - So, you're saying that it was really not a serious attempt that looked for success, but... I mean, look, they've tried to make it look pretty serious. But from the outside it looked like they were never gonna get it anyway. So it was more like a show. - It was absolutely a show. They knew they didn't have the votes going in. And it was a show. They were trying to throw some red meat, if you will, towards their hungry conservative followers. And they were trying to drum up support among them. I think what is dangerous about that though is even though this constitutional amendment failed, and they knew it was gonna fail going in, it gives impetus to those who hate us. And we know that there are people out there who really hate the gay community. They want us to go away, they want us to shut up, they want us to disappear. And you see that they have been in some areas emboldened by this whole anti-marriage rhetoric to not only go against marriage, but to go against domestic partnership rights, to go against protecting gay and lesbian couples from spousal or relationship violence. They've used this to attack other benefits that we might be seeking. So it isn't just about marriage. It really is an attack on our community. - So when you, I mean, we have worked together in a program that kind of teaches a varied amount of classes about issues related to the gay community. You see a kind of a relationship there that's, it goes beyond just, oh, let's have a constitutional amendment, but let's see if we can't undermine all of those areas of the law. And even if we can't do it this way, it starts that dialogue again. - Right, I think there are some people who recognize that the gay marriage debate, that they've lost it. Ultimately, we're going to get gay marriage. It's just a question of when. But the real true believers, the sort of quote, family values people who use family values as a means to attack us, those people really do hate us, and they really do want us to go away. And so, no matter what they say publicly, they really are trying to undermine each and every right that we have. They don't want us to be protected from discrimination. They don't want us to be protected from hate crimes. They don't want our relationships recognized or values. They don't want us to have kids. They don't want us to be able to adopt kids. They don't even want us to raise our own kids. So it isn't just about marriage, that the enemy really is against us on everything. And they use the marriage issue as a wedge to try to gain support from people in the public who might otherwise be okay with us. They're a little threatened by the issue of marriage. - Well, Charles, you're kind of in the middle of all of it, although you're here in LA, and weren't, I don't think in DC during the vote. But I think a lot of people including myself, don't actually understand kinda how these things work in Congress. We kinda read in the paper that the president went to talk to Congress, but how does this amendment, how does it get to the floor to be discussed in the Senate or in the house? - Well, it's interesting because indeed the president did go on national television, and he used the bully pulpit of the presidency in order to promote this idea, despite the fact that naturally, the president has little to no role in the adoption of an amendment of this kind or a modification of the US constitution. Essentially, he simply threw the weight of his office in support of it. The bill was introduced to Senate joint resolution number one. Meaning that when this session of Congress opened in 2005, it was the very first bill that was put forward. - Wow. - And the reason for that is that it was a way of, as John put it, throwing red meat to a constituency that has made moving a conservative social agenda its number one priority. And frankly feels that the administration of the White House, the two parties of the, the two houses of Congress, and the Supreme Court, although in conservative hands, have not delivered on what it feels is its due for having supported that conservative movement to control the social agenda of legislation in this country. Therefore, the bill was put forward as the very first bill. But no effort was actually made to promote it until June. It was simply left to languish, though introduced until June, right as we're beginning to go into the national elections coming up in November. - Right. - And that was a strategic move. And the reason for that is basically that the bill would, it requires a two thirds vote of the Senate, and a two thirds vote in the house in order to move the bill to the state legislatures, where then three quarters of them must approve it before it actually amends our constitution. That's a very, very tall order. And it began in the Senate because the Christian were in the Alliance Through Marriage, the Christian Coalition, went to the White House, and they came to Congress, and they demanded delivery on issues that they were not making headway with in other areas. But it's a very tough effort to achieve. In fact, they tried to do the same thing in 2004, they introduced the same amendment. And in 2004, it failed. It failed on a vote of 48-50 in the Senate. Now, that's interesting because in order for the bill to actually pass the Senate, it needs 67 votes, 67 votes out of 100. In order for it even to come up for a real vote, it needs, and that is to not be stopped by a filibuster, because the Democrats feeling that this was the legislation of discrimination, have said, "We're gonna filibuster this bill. We don't even think this bill, a bill to amend rights away from American citizens should even come up for a vote. We're gonna filibuster it." That what happened was the... A vote of 60 votes is required in order to vote cloture, that is to suspend the filibuster in order to allow it to come up for a vote. They couldn't even get that vote. - So there's a vote by the member, it was started in the Senate. - Correct. - It hasn't been in the house or has it? - It's being introduced in the house as we speak, but it's already dead in the Senate fortunately. - So Senate joint resolution is introduced, but not brought up for any kind of debate or discussion until June. - Right. - By choice. - Yes. - And that's a choice of leadership in the Senate as to when that bill comes to the floor for discussion. - Yes, Senate majority leader, Bill Frist essentially promised the Christian Coalition that he would bring it forward just as we're heading into the November elections. - And it's up to him to schedule when things are debated in the Senate. - Yes. - So it comes to the Senate, and there is a threatened filibuster, or people start talking and say, "I'm not gonna stop talking." How I don't think, I think people have heard the word filibuster. And they also heard that there was some kind of deal not to filibuster everything especially judges I think. - Right. - But I don't know that people really understand what that means. - Well, fill... - Is it like Jimmy Stewart talking all night till he loses his voice. (Sheila chuckles) - Once upon a time, it was, when Mr. Smith went to Washington. But now the very threat of a filibuster is sufficient to hold a piece of legislation, because there's so many bills that have to move through the legislature, including the budget, that the very threat of a legislative filibuster is enough to move a bill to the side in order to allow other business to go forward. So, in a case like that, you have to be able to demonstrate that you've got enough votes, you've got those 60 votes, in order to bring the bill to a vote on the floor of the Senate. There is no filibuster in the house. It only exists in the US Senate, and therefore the vote of cloture, which is a vote to stop the filibuster requiring 60 votes only exists in the US Senate as well. - And so the actual vote that was taken in the Senate, about which we read in the paper, was not really a vote on the amendment, but a vote to stop the filibuster. - Exactly. - Which would have required 60. - Which would've required 60 votes. - And they got 49. - They got 49, 1 more (indistinct). - Than two years. - (indistinct) getting in 2004, despite the fact that the bill was much (indistinct), it had the president's vocal support. It had the momentum of the Christian Right Coalition. And most importantly, there were five additional Republican senators in the Senate, in this session than when it was voted on last time in 2004. - But they only picked up one vote. - But they only picked up one vote. I think that that's a real testament to the fact that people understand increasingly how serious it is to amend the US constitution, to take away rights from members of our citizenry. - And so, but you said the bill is now being introduced in the house. - Yes, having failed to even get to the point of a vote in the Senate, let alone the 67 votes it would've needed to actually move forward, for the same political reasons the vote is now being, the bill is now being introduced in the house. It again has no chance whatsoever, of passage. It can't get the two thirds votes, which would require 290 votes in the house. There's no chance of it procuring that number of votes in order to pass even the house. But even if it did pass the house, it's already dead in the Senate. - Right. - And in order for it to go forth to the states for a vote, it has to pass both houses. - So is this a litmus test for the November election for members of the house? - That got (indistinct). - I mean, not Diane, or, and frankly most of our friends from California. But some people who, this being forced to a vote in the house, they're hoping to either get somebody 'cause they voted for us or... - Exactly. - Get them to change their vote. - The wedge issue. - It's a wedge issue. - Yeah. - It's particularly useful in swing states, that is safe states where it's possible to elect either a Democrat or Republican. But it's also useful to galvanize the base. The Christian Right wants to make sure that it's social agenda, and not merely the economic agenda of the conservatives, but their social agenda is front and center. Because it was on those terms that they agreed to support President Bush and the Republicans in Congress. - Right. Right. - And so what they want is for this essentially to be an albatross around the necks of both Republicans and Democrats who are up for election in November. Because they were able to go forth and to say, even though it's a distortion, that the person I'm running against, whether it's a Democrat or a moderate Republican is someone who doesn't believe that marriage should be between a man and a woman. And that's what they're using it for. They can't win in the house. They don't have enough votes even in their own party, but they can use it in elections, particularly in the swing states. - So what's happening in California 'cause there's... Now we know that it was brought up in Congress and it didn't pass. Okay, so no amendment to the constitution this year. But so it's left with the states. But there's still a great attempt, is there not, to try to get the states to do this kind of work. What's happening in California? - Well, there are two tracks going on in California, that is in terms of the movement for marriage equality. There's litigation that is pending in the state courts under the state constitution where we had a tremendous success in the trial level court last year. And on July 10th in the court of California Court of Appeal in the San Francisco Bay Area, there will be oral arguments in that litigation. And that's moving forward in a very positive way to win equality in marriage in California. And of course people know that the California legislature supports marriage equality. Although our governor, Schwartzenegger has felt not that he, he hasn't changed. - Let's use the word veto. - Well, he vetoed. He has vetoed the bill and he's vetoed it for reasons that we think are legally incorrect, about the scope of the anti-marriage voter and active self screening. - Right, it was statute. - We think it, yeah, we think politically, he didn't have the spine to sign the bill. So the marriage litigation is going forward. And at the same time, our foes on the conservative right continue to press proposals to amend the California state constitution. They seem to be on some strange kind of a treadmill right now of introducing, again and again to the attorney general, proposals with a range of different tweaks in language. There's quite a few of them that they have given to the attorney general. In past months, they circulated a couple different versions and they did not get enough signatures to have any of those measures be on either the June primary ballot that we just had, or the fall ballot. And so we won't, we are unlikely to see any of those before 2008, but in terms of the general election then. But people need to really be taking seriously the determination of these folks. Because for exactly the same reasons that Charles was just describing, this issue can be, and is used by conservatives and the Republican Party in particular to get voters out at particular times. And so, we absolutely anticipate that when it is deemed politically useful by conservatives in California, to have that measure on the ballot, there will be money pumped into the groups who were circulating these petitions. And so we are very sure that we're going to see that kind of measure in 2008. And it is part of the national landscape, where efforts to pass statutes and to amend state constitutions has been going on for a number of years. Now, the national checker board at this point has about 26 state laws in place. And there's one in California that restricts marriage. And some of them are much broader than just marriage. And we have at this point, 19 state constitutional amendments that have been passed, some of which are extraordinarily broad. These numbers fluctuate a bit because in a number of states, for example, Alabama, had a quite emphatic law against marriage equality that was in a statute. But that belt apparently wasn't strong enough. They decided they needed the suspenders of a state constitutional amendment that just passed. And so, we are at a point where quite a large number of states have these bans. That does not mean however that our work to win equality in family law including marriage, but these other protections, that it's doing anything other than continuing strongly. We are waiting for decisions from the Washington Supreme Court, the New Jersey Supreme Court, and the high court in New York state, all of which have heard argument in marriage equality cases. And there are other cases going on as well. And in all of those cases, we think the likelihood is quite good to have good decisions. And really that's how it should be at this stage of our movement, to have this work in states where we have had strong work for years, both in legislatures and in courts, to prepare the ground for that litigation. - Well, let's talk about that because it... Not only are the four of us sort of in the positions that we're in now, but we're all sort of activists too. I don't mean sort of, we've all been activists. We are part of a movement. Why do you think this, this looks pretty good this year, in terms of what we've been talking about. How do you think it is that this, that we've come this far, sort of dangerous as it still is? I mean, what do you see having contributed to our ability to, I don't know, push this back? - I think it's because of our visibility. I mean, over the last 20 years, we have become much more visible as a community. We've been all over the TV, good or bad, people know that we exist. And I think that's what frustrates the right wing so much is that we are visible. And once we become visible, it's harder to demonize us. It's harder to hate us. Once you see these couples who've been together for 20 years, you see these people who have raised children. Some of them are raising children that have been thrown away by heterosexual couples. When you see that kind of visibility, it's hard to generate the same kind of hatred that the right wing has been able to generate in the past. I think that's the large, the main reason why we have come as far as we have. I don't think we're successful yet, but we certainly have made far greater strides than I ever anticipated. - I also think that this is a civil rights issue, and that there are a number of groups as well as individuals in this country who understand that, who get that. There's gonna be variance in support from one community to another community, from one state to another state. But the reality is that as we increasingly come out to our families, as people come to know us, people turn within their own churches and see us in their choirs. They've come to understand and respect the fact that we are individuals entitled to live our lives, just struggling to live with human dignity and with the same options of love and respect and sustenance for our relationships as everyone else. And that means that although there's varying degrees of support in different minority communities, for instance, nonetheless people say, "But we've learned, we've been down the path of being discriminated against. We aren't about to turn around and subject other groups to that kind of discrimination." - There also seems to be a little misdirection fatigue that's starting up in society too. I was really interested to see John Stewart on "The Daily Show", who is normally quite incisive, but light in his sort of light touch, really take to task our old friend, Mr. Bennett, and practically nail him to the wall about this gay marriage issue. And he was quite angry in a way that you don't see very much. And there's been lots of cartoons. Here's like the war in Iraq, they show things, bombs going off. And it's kind of like the only helmet that President Bush has is, "Let's stop gay marriage." So do you think this it gets sort of... I know about the visibility and the coming out. I think that the support from other communities recognizing this as civil rights, have been basic, our own organizing. But do you see this getting sort of broader out and people that don't even care about this, but like, why are we talking about this again? - Well, I think there's a couple pieces of it because I think you're right, and I think a lot of people are starting to see through because they've been manipulated on the issue. As Charles said, we did see this same movie a couple of years ago just before an election. - Right. - And people can be distracted or confused once and sometimes twice, but the American people do start to catch on. So I think it's partly that. It's partly that the religious fundamentalist agenda doesn't only target us. And I think there have been a lot of people in particular, women and single women, and unmarried women, who have seen themselves made the focus of religious objections to them being, you know, having a sex life without being actually married, access to contraception if one is not married. Sort of religious objections that are being imposed, that restrict a range of people in ways where people are picking their heads up and feeling an impact in the same way or a similar way to what we feel. So there are alliances that are being created because actually the agenda that's that is being attempted to be imposed is extremely narrow for lots of people. I also think something very important is happening with marriages taking place in Massachusetts. People don't often look to Canada as much as they might, but couples are getting married in Canada. People are getting married in Spain for heaven's sake. (Sheila chuckles) It's a Catholic country. And so in that sense we are not in isolation. I mean, I think many Americans don't spend as much time looking closely at what's going on in Europe and other countries, but there's been a steady stream of coverage. And you know what? Things are fine. - The sky has not fallen. - The sky has not fallen. - Right. - Right. - And I think of it that it's, I think it's part of why the alliances are getting stronger. It gets said that, you know, equality, there's not a limited supply of equality. If one person has equality, that doesn't mean another person can't have equality. And so I do think some of the alliances, and in particular groups that are committed to civil rights work and have been for a long time are now stepping forward in part, because the way marriage has been used politically has been very harmful to some minority communities. I mean, there are particular wedges that have been created with marriage being put to conservative pastors, African American pastors, pastors within Asian American communities, as a wedge. And it ends up skewing how a congregation or a community participates in politics. Well, a lot of community leaders have seen that going on and realized that they would be sacrificing perhaps half the choir, and also losing an ability to have political cohesion if this sort of sneaky nefarious effort isn't stopped. And the only way to really stop it is to call the question, and for communities to step up and say, "We repudiate that, we're not about that. And we might have preferred not to talk about this issue, but actually we do have to talk about it." And so the alliances that are emerging are really important. - And the hypocrisy is showing too. I think that on the one hand, you can't demonize a community for alleged promiscuity at the same time that you deny then the institutions that help support monogamy. If those have (indistinct) marriage in this country historically, then why aren't they good for everybody? And if they aren't working, then why protect them? Why reserve them? I think that the hypocrisy is becoming apparent to the American people that you can't talk out of both sides of your mouth. These people don't behave the way that that we do, because they're not like us at the same time, they don't deserve the same rights that we do, that help us behave in the ways that we think ought to happen. - Well, there's a matter of sort of this distraction. I'm sorry, John... - No, I was... Go ahead, it's your show, Sheila. - Yeah, I know, but you're the guest, so you go ahead. - No, I think this distraction, as Jenny was saying, I think it really is people are catching onto it. And it also is doing another thing, and that is that there are a lot of mainline sort of conservative Republicans who are business-oriented Republicans, who want a balanced budget, who want to see the government support business. And they're turned off by a lot of this because they know it's very divisive. It isn't really good for business to be discriminating against people. They probably have gay and lesbian employees in top positions, they don't like any of this. And you're seeing in some areas where they're beginning to pull back from, their support for the Republican Party. Or they're beginning to try to shift the emphasis and the war within the Republican Party over the social conservatives and the more business conservatives. That is beginning to, I think, those (indistinct) are beginning to have an impact. But I think Jenny is right. The public is beginning to catch on that, we've got this terrible war going on, we have millions of Americans without health insurance, we have the Congress disinvesting in education and cutting back on student support. We have all those problems going on. And the number one topic that they're gonna put on their agenda is gay and lesbian marriage. Where by the way, we have lost in most of the states. So why is there this tremendous need to address this on the federal level. - Right. - When the states seem to be turning us down when we're asking for same sex marriage? I just think it shows misplaced priorities and the public has really caught onto that. - And as you said, it's getting to be counterproductive for the party. When the analysis about how it is that the right wing Republican ideas have become so forceful and adopted, there was a book that was about the state of Kansas, you'll probably remember. And it was really a book about how the people in Kansas were brought to vote against their own self-interest by this kind of stuff. But it was interesting to read the other day, that in Kansas a number of prominent Republican politicians have decided they're going to change their party affiliation, including one who's running for lieutenant governor. Partly because, and it isn't because they sense any trend going, where they're gonna do so much better as Democrats. It's just like, there's no party they recognize anymore that they belong to on that side. - I think it's important also to acknowledge that this is happening not in just isolated areas, but in a number of places. John Sununu, Republican from Maine, Olympia Snowe, Republican from, I mean, she's from Maine. - New Hampshire. - Sununu is from New Hampshire. - Right. - And they also have stood up forth and said, we're gonna vote against cloture. We did vote against cloture. We'd vote against this bill if it came forward. And they represent, they are Republicans who represent Republican constituencies, who've said, "It's not merely a matter of the fact that it's state rights. It's not merely a matter of not discriminating, of legislative discrimination to our constitution. It's just wrong. It's just wrong to do this, and to treat people this way. And we don't wanna go that direction, it's not American." - It's an interesting thing because I think the reason we will win eventually, and as John said, the question is when, and I hope it's sooner. (Jenny chuckling) But is that when you get people talking about these issues, people catch on. People just need to sort of do a double check of the idea, what they're used to seeing, but why does it need to be that way? And why does it matter to you? And would you really, is it really better for anyone to have gay people enter heterosexual marriages? I mean, I do think that "Brokeback Mountain" was pretty good on that point. That it really doesn't do anybody any favors to have people enter heterosexual marriages if that's not what is going to be right for them. But that you don't help any heterosexual families. You don't support any heterosexual, or protect any heterosexual marriages by denying other people legal protection. And actually lots of heterosexual couples and their families need protection and support. And they're not getting that by not having healthcare, or by having local government strapped for funds, and a range of other things the federal government has done that leave people actually really needing help. It does start to sink into people who are working two and three jobs, that actually their gay neighbors next door not being able to marry has not helped them one bit in terms of their own household. But it is a matter of people needing to sort of be prompted to think it through because change can be hard. And we've actually made incredible progress in a relatively short period of time, if you think about the span of civil rights movements. So there are changes that are hard for people to adjust to. - Sure. - But I think what you're saying about, it's not just happening in Kansas, it's happening in a lot of other places that people are realizing there are a lot of issues they care about a lot. And I think some of the polling around the vote on the proposed marriage amendment showed that. That we don't yet have majority support for marriage equality, but people who respond to pollsters and say they don't support marriage equality, don't support amending the constitution. And they rank it very, very low on their order of priorities. - Well, I think there's something that happens in people to change them. And I only have my own experience growing up in the '50s where racism was simply taken for granted, but you didn't think about it. And I think what I've heard from a lot of people about marriage is, it doesn't even compute to them, that it would be able to be used as a word. Not that they're prejudiced, they don't feel prejudice. It's just that marriage is, you know, a man marries a woman, that's marriage. What are you talking about? And I think what you say is, to some extent this forces them to explore their own concept about it. Like, well, what's so wrong if, and you come up with nothing. And you say, I never thought about it before, but now that I think about it, I don't wanna be part of the prejudice part. I wanna be something else. - My grandmother used to say, and I had come out to her before she died, but she used to spend a lot of time watching televangelism. And she said to me once, "Why are they spending so much time talking about who's going to burn in hell fire? I want them to tell me how to get to heaven. (Sheila chuckles) I'm not concerned about what other people do. That's not their role, that's God's job. Talk to us about what we need to do to treat each other better, to be better Christians, so that we can get to heaven." It was interesting. This is someone who lived her life entirely within the Christian context, and who just thought that it was a wrong focus, it was a wrong emphasis on the part of Christians who believed that this was what was important, that this was what was guiding their lives. She felt it was a distraction. - Well, I think there was just a big speech to the Episcopalians about this. - Indeed. - It's like, why? This is not good for you to be wasting all your time on this, there may be some other things you may wanna talk about. - But I don't think we can ignore the fact that there are a lot of people out there of faith who believe it is their role to set forth really clear black and white rules of what is right and what is wrong. And I think this whole movement for a constitutional amendment tries to appeal to people based on their religious beliefs that this is wrong for two men to get married or two women to get married, that it is somehow against God's way. And I think that we have made a lot of progress in addressing some of those religious concerns, but there's always gonna be a group of people who have their beliefs, and there's no way that you're gonna change their beliefs. But I think you're right. Most Americans do look at issues and maybe they don't think about them early on, but eventually they start to think about it. And then they realize, "Well, wait a minute, that doesn't make sense from a policy standpoint. Why is this hurting anyone?" As Jenny was saying, we haven't prohibited any heterosexual couple from getting married that wants to get married. So when they talk about defensive marriage, why is that even a concept that makes sense? Whose marriages are we attacking? No one's. What we're trying to do is expand marriage to include some of the loving couples within our own community, many of whom have children, and many of them need the support that comes along with marriage. - And I would add to that. I mean, just as there's not a limited supply of equality, there's not a limited supply of marriage licenses. If my partner and I get married, it is really not gonna mean that there's a heterosexual couple who just can't get a license for folks and has to cancel their wedding because we got the license instead. (Sheila chuckles) But it's always critical that we study history. And I think there's a, there's a historical transition that happened that sometimes gets overlooked in this discussion. For a long time, many, many people and many religious leaders took terribly seriously.... I mean, saw that marriage is not just in their view, a man and a woman, it was till death do us part. That it was a lifetime bond and divorce was not possible within the church or in the law, because the law reflected what the social values had been for a long time. And many people passionately believed, and perhaps with some foundation, that if divorce became permitted that there would be tremendous changes in society. And of course there's some real truth to that. And people have heated debates about whether that was good or bad or what to think about that. But when people say, and we hear it in the litigation a lot, marriage has always been this, from beyond human memory, it has been this particular thing. Let me tell you what it is. I'll tell you, but it has always been this. And that's just a fantasy. It they've just created it as a myth that meets their need. But divorce came into being not just because people insisted on a separation of church and state, because the conservative religious leaders fought it every bit of the way and every state. It wasn't just separating church and state. It was having the discussions about what the consequences are of having that policy, keeping people stuck for their entire lives in a relationship that was terribly broken, or that wasn't good for them, or children, or anybody. And that's an important part of what we're doing now. I think it's really very important that we don't just say separate church and state, and not have the part of the conversation about why equality under law and dignity for all families is a critical part of what the society is about. It's celebrating diversity, and it's celebrating and protecting the dignity of all families. So, we don't concede that the virtuous argument is the religious one, but for legal technical reasons that can't be followed in the law. Actually, that's a very conservative, narrow religious view that people are entirely entitled to have, and to live that way as people would like. And I'll defend it vigorously that that's people's right. But it isn't their right to impose it on other people. And for many, many people, it would be really the wrong way to live, and it's a bad policy choice for our society to strip legal protection or deny legal protection and civic dignity to thousands of wonderful families in the name of family values. It's wrong and hypocritical. - Not only that I was a family law practitioner, I was a divorce attorney. And the truth is these divorce laws are far more threatening, if you will, to marriage. They have divorce laws that were put in place, because people wanted the law to keep them together when one of them wanted to leave. And so it is the case that by putting no-fault divorce in the law , and so that you didn't have to go out and make up reasons that you could get a divorce, which everybody was doing before this. By putting that in the law, you did make it possible for people to end a marriage. And that is indeed a threat to a marriage and to the person in the marriage who doesn't want it to end. There is no threat to a marriage if two gay people get married. The only threat is we are better because it's total logical. We're better because we can get married. They're not human and therefore we don't let them to marry. And why do we know they're not human? Because we don't allow them to marry. I mean, it's very circular and we're not the first community this has been used on. So, it's not that, I mean, how do we make these arguments? You went to a gathering of mayors, if I'm not mistaken, from all over the country, right? - Right. - What's the attitude about what local governments are doing, or other states about this? - I think that the mayors that I visited with, many of them are from big cities, and many of them have a very active and vocal, gay and lesbian community. So they wanna stay out of this whole constitutional amendment. They believe that that's divisive and it doesn't promote diversity. But there are a number of more conservative mayors, and some of them will buy into the rhetoric. Not because they really believe it, but because they think, they think it's a way to sort of gain credence with the Christian Right, who they wanna carry support from for their next run for Congress or for higher office. The major cities, and the mayors of most of the cities across the country, they're used to dealing with the real priorities in their community. Making sure the roads are paved, making sure that the garbage gets collected, making sure we address the crisis in affordable housing, making sure that the emergency rooms stay open. They think that this kind of debate really has no place in Congress, and really no place in the public. - So do you see this coming back and coming back, or do you see this getting worse in any of the states? It sounds as though it's going nowhere in Congress for now. - Absolutely, I don't... I think that it becomes increasingly an embarrassment for the Republican Party, because it emphasizes and it reveals to everyone, the degree to which in fact conservatives are not a united party, they are not a united point of view. They in fact represent fundamentally different approaches to addressing issues. And from a fiscal standpoint, conservatives generally want government to be hands-off. But from a social conservative point of view, they want to use government, which otherwise they deprecate as an instrument. They want to use government to enforce a particular set of moral values on the rest of Americans. And I think that more and more of us see that, and people within their own party see it, and aren't willing to go along with it. The reality of the situation remains the number of Republicans increased in the current Congress, and yet they were unable to get even enough votes to bring this amendment to a vote on the floor of the Senate. - But, you know, one thing, let's not forget, there is a federal law, a federal statute that denies recognition for federal law purposes to married couples. So for example, couples who live in Massachusetts, who are legally married with all of the rights and duties of being married under state law are denied the treatment of being married with respect to the more than 1000 places in federal law, where being married means you get some special treatment. That discrimination hurts all of us, anyone who's in a relationship who should be treated equally by the federal government. And that exists today, and also that same federal statute purports. I mean, many of us think it's a legal slight of hand that's invalid, but purports to let states ignore valid marriages of same sex couples if they choose to, which is an exception to the standard rule. We know that there's, at least the polls say, there's roughly 80% support in the American public for an employment non-discrimination law, but Congress does not take that seriously. We don't yet have that kind of support for marriage equality. Which to me means we have an awful lot of work to do before we could expect Congress to start doing the right thing, to not just get rid of what we call, the so-called federal defensive marriage act statute, not just to get rid of that, but to start providing appropriate recognition and protections in federal law for the millions of gay and lesbian couples in this country. And I guess the reason I bring some of that up is that, we have a community of people who are being harmed by the law, in so many states, who suffer that loss financially and in other ways every day. And people feel a very understandable impatience. And so, I take the moment to actually give people a caution and an applause for having tenacity and determination as a movement, and also patience to not think that we're going to fix all of this with a silver bullet lawsuit in federal court, to demand equal protection as a matter of federal law. We have so much work we need to do to change hearts and minds before we call the question for the country as a whole. I'm a great believer in civil rights litigation, but also doing it strategically. And when I look at how little serious effort we see in Congress to pass employment protection that has such public support, because of this power of the determined minority of religious conservatives. They hold hostage to any goodwill to protect us through federal law. That tells me how much work we have to do. And then of course we have roughly mid forties of laws that have passed in states, or constitutional amendments in states that need to be undone. Some of which will be litigation, and some of which means people need to do political work in the states. - Well, I like litigation too, but they've managed to kind of take all three branches of government. And that makes it very difficult for us. I mean, you either get laws passed, or you get laws interpreted through the courts, or the executive branch pushes something, and we're looking perhaps for some changes, at least in the executive and the legislative. Well, I don't know how an hour goes by so fast, but it really does, and it's over. So I wanna thank you very much. Thank you, Jenny. Thank you, Charles. And thank you, John. And thank you all of you for being with us. So we wanted you not to worry because the constitutional amendment didn't pass in Congress, it didn't even get brought up for a vote. But I don't know whether we can stop the fight. I think we can't stop the fight. So I guess in a sense, I don't want you to "Get Used To It". (upbeat instrumental music)