Get Used to It: Ep. 37, "Roemer v. Evans"

uh [Applause] [Music] hi i'm sheila cuell and this is get used to it today we're going to talk about something that happened in recent history we were fortunate enough to live in a time when the united states supreme court seems to have said that we were human beings entitled to equal rights we're not exactly sure what the rest of that opinion was about but in romer versus evans i think we saw enormous reason to celebrate and i have three guests here today to talk to us about that decision about what it was really about about the colorado amendment to and more importantly i think the potential impact if any of the roamer decision on the rest of our lives uh the military issue the marriage issue our personal issues what did it do to the hardwick decision and i'm very pleased to have three incredibly brilliant people with me today of course what else on this show first the supervising attorney of the lambda legal defense and education fund of the western regional office john davidson john welcome thank you sheila it's nice to be here thank you it's good to have you sky johnson who is the director of public policy and communications at the los angeles gay and lesbian community services center welcome sky thank you great to be here and mary newcombe one of my favorites mary welcome back so glad you're here who's now a partner in the law firm of hedges and caldwell and was the founding attorney supervising attorney at lambda legal defense and education fund here in l.a so welcome all three john let's start with you i don't know whether people really know much beyond the headlines what was romer all about well romero versus evans uh involved a challenge to colorado's amendment to what amendment to two would have done had it gone into effect is to say that lesbians and gay men and bisexuals in colorado could not obtain protection against discrimination period it would have repealed existing anti-discrimination laws in the cities of boulder denver and aspen and repealed a number of state policies that protect lesbians and gay men and discriminate against discrimination and the only way that lesbians and gay men and bisexuals in colorado would have been able to secure protection against being discriminated against based on our status based on our relationships and or based on conduct is what the the initiative said would have been to reamend the california the colorado constitution we couldn't have gone to our senate state senators or or assembly people there we couldn't have gone to local government officials and asked them to do something couldn't even gone to local police department and said please do something about hate crimes and do something to protect us um against various forms of harm other people would have still been protected under hate crime statutes or anti-discrimination statutes the amendment just said very specifically anybody can be protected against discrimination by cities and counties in the state or anybody just not gays and lesbians correct and and one of the things that was particularly ironic about it didn't even say that you couldn't uh have a law that prohibited discrimination based on sexual orientation and so some people had thought one of the effects of of the amendment to would have been had gone into effect that somebody who was heterosexual who was fired from their job for being heterosexual could have brought a lawsuit about that but somebody who was gay or lesbian who was fired for that reason wouldn't have been able to and so it was always somewhat funny when they talked about use this rhetoric of special rights what it really did was put impose a special disability on lesbians and gay men to say we couldn't get protections that everybody else could have in fact we couldn't even have the protections that heterosexuals would be allowed to have in colorado well they characterize it as special rights because of this sort of disinformation program that i think the right has been promulgating all around the country that if you are protected against discrimination particularly there's something special about that because people who wear glasses or people who are left-handed etc are not protected by these laws which seems to me to be quite disingenuous because people in those categories don't need as much protection since they're not being discriminated against one of the wonderful things and i think there are many wonderful things in justice kennedy's majority opinion in the u.s supreme court was that i think he's really put an end to this deceptive rhetoric about special rights he in fact says that there's really nothing very special about the right not to be discriminated against it may be a right that some people are fortunate enough not to need because they never experienced such discrimination but the laws that we have in the unfortunately we only have them in nine states in the united states still but in those nine states they prohibit discrimination based on sexual orientation now everybody whether they realize it or not has a sexual orientation so everyone is equally protected against that discrimination there are no people who who get something special that other people don't get we're all equally protected against such discrimination now some people may not need that protection as much because they're a part of the majority and the dominant part of the society but everyone ends up being equalized by these rights and that's what's really i think troublesome about this rhetoric that there's something special about about being able to stay in your job and not being fired simply because of who you are but also this idea that you're getting something that other people don't have which is simply untrue well and it also kind of brought us in line it seems to me for uh in with some finality with kind of traditional civil rights notions the opinion is really a beautifully written opinion i think it starts out with a citation to the descent in plessy versus ferguson that was a horrible decision one of the real black marks on on the supreme court where they had said that separate but equal was okay and justice kennedy starts with a site to the dissent in that opinion that said no really the constitution does not allow you to treat different classes of people differently under the equal protection clause without there being an adequate justification for it and then the opinion ends with a site to a series of cases called the civil rights cases and so it really brackets the struggle for lesbian and gay rights as squarely a civil rights issue now the way that the court has decided over a long period of time to give some kind of content to the requirement in the 14th amendment of equal protection of the laws is they've they've created a kind of a different tiered system so that the more serious they think the discrimination the more important a reason a state has to have to do it because this after all the constitution really only bars discrimination by states i mean it's not about private behavior so much right and i think it's important people understand that this is a decision about the limitations on government action not necessarily limitations on private action i mean it was an important decision in saying that governments can pass laws that prohibit discrimination based on sexual orientation by private businesses but at the same time it didn't say that they had to do that now our political work still remains to to bring that about in the remaining 41 states but but what it did say and i think what people need to understand about the equal protection clause and the court's role in that we we have a system of government that's that's a constitutional uh democracy where that has checks and balances built into it one of the roles the court plays is to look at legislation passed by congress or by state governments to see if maybe there was something illegitimate going on to see if they overstepped their bounds and what the court has figured out is that there are some sorts of situations where they should be more suspicious that what the legislatures or the people did even people in initiative did was something that they they really shouldn't have been allowed to do under our bill of rights but they weren't very suspicious in in looking in romer about this i mean i think this is something that our community has said you know isn't it just like race i mean aren't we shouldn't it be an absolute standard that you don't discriminate well they really this u.s supreme court has never decided yet the issue of what level of scrutiny is appropriate for deciding discrimination based on sexual orientation and whether it should be treated exactly like race or not what they decided in this case was that even at the lowest level of scrutiny that would apply it's been called the rational basis test amendment two didn't meet that and and i think it's important to get there they had to decide several very important things one is they ended up deciding that the same way of analyzing discrimination claims that applies to any differential treatment of groups of people by the government applies to lesbians and gay men now i know that may seem like a very simple and not so important thing but i'll tell you after having litigated lesbian gay rights cases for you know almost a decade now we constantly face um kind of a a gay exception when we go to the courts and courts really not being willing to treat our claims with the same level of seriousness and with the engaging in the same way as they would other claims well it's kind of an historic thing though john i mean when ruth bader ginsburg who coincidentally is now on the court first started litigating the gender discrimination cases and she did all of the early gender discrimination cases they were hoping to even get gender into the 14th amendment because before that the justices had said no now wait a minute our theory about equal protection is you cannot as a state treat similarly situated things differently right and they solved it by saying men and women were not similar please go home and so they weren't it wasn't even a problem for the 14th amendment and could have said and indeed i think in the past have said at a lower level that's the same thing about us we are not similarly situated there's such good reason to discriminate against us i mean did you read the entire decision and see any reference to hardwick no one of the things that was strange wasn't it one thing that's very interesting is the majority decision does not refer to the hardwood case which is this georgia sodomy decision 10 years ago where the u.s supreme court said it was okay under the constitution the u.s constitution for a state to criminalize sodomy now one of the things that's interesting is that case has been used against us every lesbian gay rights case um up to now and it was clearly used in justice scalia's dissent at some great length in this decision but what i think is important is that that the court really put to an end i hope the argument that that just simply because there could be laws criminalizing some sexual behavior that doesn't mean that we're not entitled to equality first of all most of the sodomy laws in the united states still exist criminalize certain sexual acts regardless of the sex or sexual orientation of the people engaging in those acts they criminalize oral or anal sex and and don't limit themselves to acts that lesbians or gay men might engage in um and so there's i think a misunderstanding that scalia continues to try to play on one of the things that's important is prior cases have tried to define lesbians and gay men by our conduct and particularly by a specific small amount of our conduct so only sexual conduct and only certain sexual conduct that we may or may not engage in that some heterosexuals engage in too this decision said no this was discrimination on the basis of status and that was a major leap forward for us and that said that as a result of that hard work which was a decision about conduct was really far less relevant to deciding equal protection cases and that will be very important in our drive forward for equality but the thing that the decision went on to do it was to say the same rules apply in a judging us you need to have you need to look at why are we treating lesbians and gay men differently from heterosexuals and um in doing that the court said that no group of people shall be strangers to the constitution we we it's kind of it's our constitution too i mean i think a lot of lesbians think of men who who read the decision or read that part of the decision felt very emotional about that i mean that was a really affirming thing in the same way we frequently you know if our families will still say you're still part of our family it really touches us in a way and that's kind of what the court was saying but they then went on further to say that in order for the court for for government to treat us differently it needs to at least have a legitimate reason for doing so um and the kind of coup de gracia the the crowd and glory was they said that animus against or animosity against lesbians and gay men was not a legitimate reason to treat us differently now that's i think one of the most important parts of the decision um what we'll see out in in decisions yet to come is lower courts and then ultimately the supreme court again telling us more what they mean by that but what we have argued for years is that that moral opposition to homosexuality is not a legitimate justification for denying us equal citizenship and equal rights um and this opinion i think paves the way for for establishing that as the law of the land well i think that's what people have referred to as the beauty of the constitution i mean i love it when it works and it takes a while to work and of course there's a lot of public opinion and there's a lot of work that goes on before it thurgood marshall started litigating cases about discrimination in colleges in the late 20s and brown versus board of education was in 1954 right i think people forget that it started you know 30 years ago mary you had a case an initiative case i think wasn't it in riverside it was a local initiative right um in fact this was one of the first instances where we saw an initiative come out which was targeted to prevent in this case people with hiv or also lesbians and gay men from having political rights or having access to discrimination protection and that was the case we managed to convince the courts to invalidate the the initiative um several years ago i think 1991 the first initiative that we're aware of that reached a decision in the courts where the the local court of appeal agreed with us and said that this would violate the equal protection rights of lesbians and gay men and people with hiv that was a particularly evil and reprehensible initiative that prevented the city of riverside would have prevented the city of riverside from or any person who had access to funds in riverside from taking any position that would encourage or promote homosexuality it was a very very broad initiative but what was important about that was that it was one step in the right wings movement towards a host of these initiatives around the country and what we saw was soon after the riverside experience we saw initiatives cropping up all over the country and in particularly in oregon the colorado initiative massachusetts florida maine and i think one of the things that's so important about this decision is that it finally gives us some direction as to how to to enable courts to unilaterally or uniformly say this is not a permissible course of action on the part of those who don't want lesbians and gay men to have political rights and i can't tell you enough it's not just the battle the battle has not just been in the courts the battle has also been in the in the organizing in the field um many people are familiar with the battle in oregon because there's been quite a lot of publicity and and some movies about that where it really shows how it changes the tenor of a society when you hold a particular group of people up for public appropriation and just um appropriate and to focus on them with the um the hostility of you know directed at them through these initiatives you realize how important it is that we reject those and that our constitutional system be affirmed to reject those those kinds of initiatives well how did the court respond to that initiative in riverside i mean riverside how high did it go in the court and what what did the court do well we won in the trial court we won a ruling that the initiative violated the equal protection rights of lesbians and gay men and then on appeal in what you know we would have thought would have been a conservative court it was a san bernardino court of appeal the court of appeal very clearly came out and said this is simply unacceptable what you're doing is to target a particular class of people with um hatred in a way that is contrary to that our our constitution in this case the california constitution simply does not permit and one of the most beautiful lines from that opinion and i think one that echoes in the decision by justice kennedy is the court's remark all that it lacks is a sack of stones for throwing and it really does i think illuminate that what reaches to the people who don't necessarily understand our movement understand what we're trying to express the the gains we're trying to make the hatred that is so clear and evident in these initiatives comes through to the courts and in my view i think they're just horrified by it i think one of the things that we were very encouraged during the oral arguments of romer the first question justice kennedy had off the bench is there's nothing else like this in our constitutional literature here because there's never been a case like this before and that's absolutely right there hasn't been this kind of let's get them and this is how we're going to do it well there's some false analogies being made though that i want i'd love your opinion on i actually when dan lundgren the attorney general of california filed an amicus brief on behalf of all the people of california on the side of the state of colorado in the romer case the losing side um i called him one of the things you can do as a state assembly member is you can call the attorney general and he takes her now and he was in his car and he took you know they patched it through he said no no i have to be on the side of colorado because we've got two problems here in california that i think are related one of them is prop 187 and the other is smokers and you know that's the same kind of deal what do you think about that argument well i'm sorry i don't buy it um i you know i'd be hard-pressed to articulate the analogy he's trying to make i mean if he's trying to say that as the state should have the right to tell smokers they can't that we can we can limit smoking in public places i'm not sure exactly what his analogy is but typically what someone in his position and i'm basing this in part on my limited knowledge of him but um he has i think taken the same position that justice scalia would have taken that the conduct that he has stereotypically defined as john talked about the conduct that that much of conservative america has stereotypically uh identified gay people as being the gay class of gay people is being defined by that conduct that he's saying that therefore you can't limit conduct if you if i don't support um that position that's simply not right we've made time and time again made it very clear that sexual orientation and the process of developing a sexual identity is a very distinct process from what particular sexual conduct a person engages in and as john very clearly explained these statutes that they're relying on target all sorts of uh conduct by i mean or very specific acts by anybody not just lesbians and gay men and so what he's done implicitly is collapse that distinction and it's i think an apology that is not an apology i mean it's complete um bunk justice scalia's response to being on the losing side i mean it was a 6-3 decision and he sounded pissy worse than pissy we have always known where justice scalia stood on this issue i mean this is not a surprise he's been very clear that he believes that the constitution should not protect threats to the common consensus morality um what he believes is the common consistence morality um and he's made that clear in some previous cases that social morality should determine the limits of governmental action but what i think the this decision clearly says that the equal protection clause should be analyzed differently and that's the common consensus of morality which may be maybe the popular mode is simply not going to determine how the limits that we set on the government how they treat individuals because if you are going to say that the common morality can dictate how we treat individual groups or particular groups of people you would be saying that the democratic process we can always determine by majority majority rule and by that analysis we could vote any time of the day to reinstitute slavery if that was a politically popular thing we wouldn't be able to protect people from that and clearly the equal protection clause was intended to reject that kind of majoritarian rule the other lovely thing i think about justice kennedy's opinion as sort of counterpoint to justice scalia's dissenting opinion is that scalia raised and re reiterated every argument that's ever been made against us in a descent and it seems as though it's like saying thank you now there won't be anything more that can be said because we've just said no to all of them and that six of us i shared john's perception that the the discussion of hardwick um and rejection of the bowers versus hardwood decision is determining that that gays and lesbians aren't entitled to equal protection of the laws is absolutely the critical step for us in this case this rather than as you i think we've spoken before the bran this is our brown versus board of education in a different perspective we did not seek out the the case we did not bring it to the court and say look at this inequitable situation this shouldn't last we have been assaulted we were up against the wall and to tell you the truth if we had lost this decision i really don't know where we would have gone to to salvage any kind of con constitutional protection and i think that the the the lawyers who saw powers versus hard work being used to gut the constitutional protection for lesbians and gay men time and time again were horrified at the thought that this this particular decision was potentially going to ruin us for years to come and for that reason alone this is this is just an extraordinary decision that really does establish us as a give us a bedrock from which to work well it's interesting that in a time when we feel most beleaguered because the more out we are the more people who don't like us will have something to react against it's almost as though it does us a favor the issues are in the press in the pulpit on the floor of the legislature we're you know we're definitely the minority in the middle of the griddle at the moment and and the topic of discussion um maybe it's just me i've only done four thousand radio shows you know on our issues and and romer was the impetus for a lot of that although there have been a lot of other issues you know with this great title you have skye director of public policy and communications i guess the question i i have for you is do you see out there in the real world beyond the courtroom in a way and beyond the you know the floor of the legislatures some impact in public thinking yet i realize it's very quick but uh from this decision and and is it important really oh i share both john and mary since it is tremendously important in more ways than we've expressed so far in this conversation and certainly i'd switch your phrase around a little bit from the middle of the griddle to middle of the spotlight and i think that's a great place for us to be light is our friend and our adversary's opponent they want to perpetuate myths and stereotypes about who we are what we do where we live etc the more that we're out there showing the rest of the world who we are where we are what we do uh the more we win even if we lose in the short term on some of these battles and we have lost them we lost the military battle in the short term we can come back to that later uh but uh and for the purposes of our longer term goals i think we made enormous strides uh with the military debate because we had uh greta kamameyer on national television a movie about greta kama meyer on national television we had tracy thorne admirable americans patriotic and this changes the language of our opponents you have strom thurman acknowledging that lesbians are great sailors who would have thought any of us would have lived long enough to see that so uh i say bring on the spotlight and it's just not you doing 4000 interviews we get calls at our agency all the time from press who want to they want to see gay and lesbian couples they want to see gay and lesbian service members they want to see you name it on any given day and you're right i think it's a little too early to assess uh how romer is changing public perception but it's really a benchmark i mean we've been we've been making enormous strides for the last 25 years but they've been largely incremental and sort of imperceptible on a day-to-day basis but romer coming down at a specific time in a specific day is sort of like boom yes indeed this is a validation of a lot of the progress that we've been making all of us in our various ways over the last 25 years so i think it has an enormous significance well we're going to take a break and then when we come back we're going to talk about marriage the military maybe the president who knows we'll be right back pick up your telephone right now and call the number on your screen find out how you can enrich your family values by learning about your gay children we had no idea what the gay community was like learn how these parents deal with their fears about attending parents flag meeting one of my biggest fears was that i would see someone that i knew call the telephone number on your screen right now and see how these parents have taken themselves to acceptance and beyond because that parent does not know the positives yet about the gay community hi welcome back to get used to it i'm sheila kuhl and today we're talking about the moral impact that the law can have and the the roamer decision uh its impact on a lot of other issues for our community and sky i wanted to continue with what we were talking about i know you've been involved in the freedom to marry coalition and certainly since we've had all these anti-gay marriage legislative acts proposed around the country and now one winding its way through congress or perhaps by the time this show is shown having gotten through we don't know at this moment do you see that this uh this case has an impact on the way people are thinking about that or do you see it as kind of a different thing in people's minds from a sort of a discussion of civil rights it's a little again it's a little early to tell what impact if any roamer specifically will have on the marriage cases it is sort of a different thing no matter which way any of these legislative issues go whether at the federal level or at the state level we've known from the outset that that all these issues are going to end up in the court with a specific set of of legal issues having it and certainly john or mary can speak to it more effectively than i could in terms of full faith and credit and a variety of other things but in terms of the political impact and i do think there's carry over in this issue because as john and mary both pointed out the language in this case it wasn't just the outcome but it was the language that was used in the case really does sort of lay down the law that people need to think and talk about issues involving gay men and lesbians in different terms in terms specifically of equal protection and uh and equal rights and equal justice uh and the bowers decision the infamous bowers decision justice kennedy's majority opinion was dripping with contempt for our community you used the word facetious to describe our claims in that case and we have seen that completely eradicated or at least relegated to the minority opinion for the first time in our history and so i think all people in public life are going to look at all of our issues and they've been doing they've been coming to this different position all along anyway but i think again this is a this is a benchmark that means that that that we are analyzed evaluated and discussed in different terms and that will definitely have a carryover in marriage and all the other issues that we're dealing with i think but there's an interesting progression here don't you think um there's a moment in time when public opinion starts to shift but it doesn't shift on everything i mean people were probably willing to say i guess a person of color ought to be able to keep their job and not be discriminated against years before we had that movie guess who's coming to dinner which was really about marriage and so there has always been it seems to me it could be a historical on my part but always been a kind of a disconnect between how we treated people in the public arena maybe we would start to feel better about that and the private arena in which we always felt more utsy about moving too quickly into that and it seems like public opinion doesn't just flow from a court case but to some extent even precedes it oh absolutely like roe v wade or even brown versus board of education and that's i think brown versus board of education is a great example i mean i don't think anybody in the south was prepared to desegregate schools and that in in 1954 so and that's an instance in which clearly public opinion was ahead or behind of the court i think it's clearly an interactive process and and i do think it's important to look at brown versus board of education 1954 it wasn't until 1967 uh 13 years later that the court decided loving versus virginia which said that laws that wouldn't permit interracial marriage also violated the constitution it took a while for people to do that but i think it's also important to understand we are making progress in the court of public opinion recent polls that newsweek had showed that 85 percent of the american public now believes that it is wrong to fire someone simply because they're gay or lesbian that's incredible progress that we've made in a very short space of years on that issue but even on the marriage issue just it wasn't long ago it was two-thirds of the public was against us the latest poll said it was down to 58 percent um had problems and what one needs to understand is that when loving versus virginia was decided by the courts there were more people opposed to interracial marriage than there are currently people opposed to marriage by lesbians or gay men of our partners and so we are making very rapid progress i think um and and i do think that this decision does at least get people to start thinking about well why shouldn't um somebody able be able to marry the person that they're in love with and that they're sharing their life with simply because they're the same sex as that person why do we have that limitation is there a legitimate reason for making that distinction and what the court set forth was a framework for thinking about those issues that's a more calm and and and less um hysterical way of of thinking about um what sort of distinctions are permissible for the government to make well it's a notion of harm isn't it i mean in a funny way i guess maybe because i'm an anti-smoking person i think the distinction between those things that dan lundgren was talking about relates to some extent to harm you know smoking doesn't only hurt the person who's smoking it hurts the person now we have evidence to show you know sitting next to them or living with them or whatever so maybe we could limit that in a public place we limit all all kinds of things that go on in in public places but people are hard pressed to come up now with notions of exactly what is the harm of having gay and lesbian people in society saying that they're gay and lesbian now the answer is a moral harm now scalia was completely vitriolic i mean worse than vitriolic in his descent so can people still make a distinction between this public sphere where it's okay to work and something about the private sphere where if you recognize that this deepest most personal relationship is okay something is undermined i mean let's let's talk honestly and not just like what we think we ought to say is something undermined by recognizing our relationships or what potentially is undermined well i have to say i i've always had a hard time seeing the other argument um so i'm not particularly eloquent on what the harm is i don't see the harm but one of the things that i think is so important is the sea change we've seen between bowers versus hardwick and this decision bowers versus hardwick is premised almost entirely and it is a case brought into the due process clause which is more about what are the social standards and the traditional concerns of the bill of rights um but it is a case where it was assumed and i think sky referenced this earlier that that um gays and lesbians were to be hated and that they there was absolutely nothing that um not just gays and lesbians but the you know this the conduct they engaged in it was just disgusting and there was nothing they shouldn't be recognized for any rights and it was laughable and facetious at best well what we've seen is that that viewpoint is now in the descent and what is even more i think striking is scalia seems to speak from this conviction that he shares he is carrying the moral scepter for for this whole congregation group of people out there that he distinguishes from the elite from which the court is derived it's a really i've never seen anything like it in a decision where he chastises the court for its elite viewpoints that are decidedly urban he makes some reference to the the fact that these these are the kinds of views you get in cities um whereas he presumes to speak for the rest of american society and i think he is fundamentally misunderstanding what's happening and not recognizing what's happened over the last 10 years first of all more than any time in our history the media is is driving the boat it's not it's not the court as much as it was once was i don't think brown v word of education is as much as it was leading the nation i think the media is in some ways leading the nation and we have in very many ways been able to present ourselves and have people understand and see into our lives through the media in a way that has changed public opinion and scalia i don't think is i think is entirely wrong about what the unilateral position is of the american public but but it's interesting that from what sky said you know kind of about the light being our friend um the media the reason why the media has been helpful i don't think is is you know the other side blames that as kind of the liberal biases and again the elite in the media but i think it much more has to do with people really seeing who we are you know when we've seen again and again that when we come out and when people learn about us they kind of their their the myths and the fears that they have start to dissipate um and and you know i do agree that that's one of the wonderful things about this decision the trouble something i think when it comes to talking about marriage for a lot of people marriage is a funny thing it it it in some ways feels incredibly private um and it clearly for many people has religious overtones to it and a lot of people confuse this debate with one about whether there should be religious marriage ceremonies um that where the religion should be imposed required to marry people that's not at all what's currently on the table what's on the table is whether or not lesbians and gay men should be able to achieve the same legal status and assume the same legal rights and responsibilities as heterosexuals who can get married and and so again once you start to explain things i think people start to look at it in a somewhat different issue that issue is very much a public issue it's not about private stuff but people have trouble and because it's tied up with all of the mythology about marriage and all the fantasies about marriage you know it's so hard to get people to think beyond the wedding one of the problems i think that you know generally we have with respect to marriage generally is too many people heterosexuals principally don't think about anything other than the wedding they plan for the wedding in the wedding and they don't really understand what the reality of marriage is about from a legal status or even from a practical point of view but it's also the use i i feel a little more suspicious i guess about this because it's also the use of a kind of scarcity mentality the arguments against our getting married are is that it's going to undermine heterosexual marriage now what that means is if you can do it it won't be as important or as wonderful because that will mean it's not just limited to me as though it's a country club you know for whites only or for men only or well like marriage was for white zones i mean slaves weren't allowed to marry and it's a way you can point to a group and say you're not human you can't get married and my demonstration that you're not human is because you can't get married so it's kind of this you know this circular proof that we will somehow dissipate that's a past system yeah but i think that uh i mean i think that they they have no english i mean i think that argument shows the bankruptcy of their point of view once they get past leviticus and you have to do that if you're talking about civil law uh they don't have any arguments to make it's been this way for five thousand years i know that's not true but even if it were true so what uh the fact of the matter is a lot of things happened for a long time and we figured out they were wrong and we changed them and i think this is an example of of just that sort of case people like scalia are beyond redemption and that's pretty clear based on his dissent and other lots of other indications but the fascinating thing that we found in the year and a half or so we've been working on this uh and it goes back to something that you said earlier that when people actually stop and think about this i mean mainstream non-gay lesbian americans uh and and uh and this is all brand new i mean people really haven't been haven't had this in the public arena for for more than three or four months and in most cases i mean it's really just emerged this this calendar year uh but when you sit with an individual and yeah and and you can sort of see the the light come on somebody's face well what what would be the problem with that and and many people conclude well there isn't energy joe and jack are in their house down there they're you know got a mortgage they're mowing the lawn and they're married so so what i mean of all the problems there are in the world uh that if you perceive that to be a problem at all it's got to come way down the list for an overwhelming number of americans that's why i'm optimistic in the longer term about this well i i'm sort of a glass half full kind of person too i feel as though the movement is moving along just as other movements have we've made some gains we you know we have some setbacks and one of those is the military but i just want to go back before we go to the middle i mean just think about that statistic that john cited before 58 opposed to same-gender marriage well think about that this was a this is a notion that would have been completely unthinkable laughable in fact gary bauer and others are trying to say it's still laughable but it's not laughable at 58 say yeah but i'm against but 42 say well no i'm not or you know i don't care i mean that's is a tremendously i mean that's a greater percentage of the vote than a lot of democratic candidates because i think two years ago it was more than two-thirds oh yeah it's like 75 we've seen that just as in a lot of other areas we've seen that come down and the other encouraging thing is in all these polls that the folks who are more likely to be with us or the younger folks and the older folks whose attitudes reformed pre-stonewall or pre-depression are are are are the ones who are the most hostile to our i actually think there's a third dynamic that scalia doesn't recognize yes the the cities have attracted many gay people because they are able to lead open lives more easily but the reality is is that there are a lot of people still in the so-called central urban areas and the other fact is a lot of us came from those areas and we have family there and family are dealing with the fact that their their loved ones are coming out and they're having to rethink all of these issues even if they live in you know i don't want to say the name of my town it's inevitably going to offend someone but um you know small small towns rural areas everywhere we there's i think a much broader perception and also the national media again is national now it is not limited to the big cities well and also in the small towns you see you know pride festivals a sort of brave little band of people with you know rainbow rings around their necks having a a 30 person kind of pride day and and and those are really courageous people but but doing it and saying in this town in your neighborhood we're here teenagers in salt lake city there you go yes pretty major and the straight teenagers who who bonded with them and said i don't think this is as big a deal as everybody says it is you know let's walk out of school and protest which is but that's of course what frightens scalia and his ilk because they are convinced that if they don't do something fast they're going to lose the war and they see it as a culture war and he says so very clearly and um you know in some respects i don't see it as a it is a cultural change it's not a war it's about evil an evolution and this decision is an essential building block in that well mary you had you also had a couple of military cases early on too couple was there just one there were several there were several more than a couple is that a distinguishable area i mean we've heard about deference you know to the government on military issues and we've heard about um this sort of special notion of unit cohesion and in romer they said you just need a rational reason to distinguish between gay and straight people wait no no they said at a minimum you need that they didn't decide the issue of what level of scrutiny applies well i certainly don't want to impact yes and you don't want to concede that i know that the nine are watching this show now that we're on in washington so i certainly think it should be if you're watching but let's say at a minimum do you see a difference in them in the military cases and the way they might approach them or maybe you want to talk about dusty's or other cases and what's happened well there's no question that they're going to be significantly helped by the decision because and the decision um has confirmed that the for instance the bowers versus hardwick case does not undermine the right to equal protection and as we've been saying at a minimum the government has to show a legitimate reason for its actions and consistently if you look at the evidence that we've been presenting in court in these cases it undermines number one the the rationality of the of the um the regulation because frankly they treat different people differently for different reasons for the same reasons that make no sense the same conduct doesn't simply warrant the same punishment but then also um it's very clearly saying and this is the this is why this case just means so much to those of us who have been litigating constitutional cases very clearly says you can't act out of animus towards um a dis favored group we've been saying that for years and this case shuts the door on those who would say bowers versus hardwick says we can make the conduct criminal you're defined by your conduct therefore we can do anything we want to you and it doesn't matter because we hate you now interestingly 10-year i guess about 12 years ago justice kennedy when he was on the court of appeal wrote a decision in a military case upholding the regulation on the basis that a single affidavit that said well it's rational because there are many people in the military who hate gay people that was his reason for upholding the regulation would he do that today i don't know i think that would be a very interesting question well i hope not it's true well what do you think about this this notion of deference to the government and unit cohesion as a reason because they i'm sure the military would say there's it's a rational reason is unit cohesion the same as hatred well i think we're going to find that out within the next couple of years there are several important cases wending their way up to the u.s supreme court dealing with challenges to the don't ask don't tell policy the the courts have said that that the military is entitled to somewhat more deference than in their decisions than other aspects of the government but they've also very clearly said that the military is not exempt from the constitution and that people who enter the military do not give up all of their constitutional rights particularly with respect to the issues of equal protection and i think it's important to recognize that don't ask don't tell perhaps most clearly as a policy shows that the government is treating one group of people very differently than another heterosexuals in the military are allowed to say what their sexual orientation is lesbians and gay men are not allowed to say what their sexual orientation is or how certain things will happen that unless they ultimately disavow that statement and what it means they will be kicked out of the military and the military i think will have to come up with a legitimate reason and what is yet to be understood for sure is whether when the court said animus is not an a legitimate reason for treating people differently whether they will apply that exact same standard in the military and what they really mean by that unit cohesion is the is the term is the kind of rallying um uh cry that that uh sam nunn and and others um used to to defend this policy but when you really start to ask people what does that mean and i think that's kind of what our job a lot increasingly is is kind of hearing phrases that are used against us and really asking people to it to look at that a little more clearly and to think about it and to explain it and when you do that with unit cohesion you see that all it really means is a concern that some heterosexuals don't like us don't want to be with us are afraid of us don't understand us it's but but all those things sound a lot like animus well but you know in the military as with police this notion of whether you're going to get back up this notion of whether you're uh you can trust your partner they elevate it to a standard above just i don't like so and so and i don't want to sit next to him or i don't want to you know be in the same room with him and one of the things that's interesting about the way the court weighs whether something is rational or not really is their own gut reaction to stuff remember in rosker versus goldberg the case about registering women for the draft the lower court said can't find a reason can't find a rational reason not to register women for the draft because they could be drafted there's lots of slots that they can fill even though they were statutorily barred from combat couldn't think the department of defense all all their testimony went the other way right and it said we can use them we want them we want them in the volunteer army it got to our chief justice however who wrote the opinion at the supreme court and suddenly there was a rational reason because everyone in the military had to be ready for combat at every moment in case we had a nuclear war and everyone had to go into combat and since women couldn't go into combat they couldn't be drafted and they didn't need to be registered to be drafted please go home amazingly though they used existing inequality to defend inequality it's one of the you know ironic things about that you know i think we won't know for sure what the answer is going to be in the military until the court decides those cases but i think that this decision gives us great hope and a lot of promise that it will come out the right way well what case do you think is going to i mean there are a number of military cases kind of swirling through the system i think there's a national guard case here in california what other cases are on their way the thomason case from virginia the the able case which is a lambda and aclu case involving five different service members from new york um the phillips case which is uh from uh uh ninth circuit it's out here um and there's a watson case there's a rick there's i think they're eight or nine i was talking to the service members legal defense network just yesterday and i think there are nine federal cases challenging the don't ask don't tell policy under the new policy explicitly that are working their way up do you think we're likely to see a split in the circuits which would we've already used the court to actually not on don't ask don't tell not yet but we're we're very likely to see the kind of circumstances where the court finally reaches down and says we're going to decide this once and for all it's not far away what i'm very happy about is that the colorado case got there first yes yeah it's really important what gets there first well in the court of public opinion sky what's the buzz out there on the military stuff i mean it doesn't seem nobody's calling me and saying now how do you really feel about you know lesbian sailors i think it's last year's hot topic or two years ago hot topic so we don't get a lot of calls and people do recognize it in the courts and i think most folks on both sides anticipate that the courts will ultimately resolve it that it's not going to be a congressional issue again certainly not anything that this administration is going to bring up in any way again so they're busy defending this defending this and then doing their best so it's in the in the house um budget bill they tried to resurrect their own pockets right certainly that at least some people in the bob dornan party have won't give up on right i think newt's in there too no i know well i mean he talks around it but it's basically going and that's not expected to go anywhere so i don't well one of my colleagues george house tried to put an amendment to the budget on in our house mr house in our house really that would have forbidden any expenditure for anything that would have somehow uh portrayed gay and lesbian life in any kind of a positive way and i'm happy to say it was defeated narrowly but it was just the same kind of action that i think the rumor case would um absolutely invalidate i had a chance to spend some time working on the military issue explicitly in 1993 when the all the stuff was going on in the congress and we had ongoing conversations with people in the pentagon of course and interestingly there the generals the admirals i think almost all of them recognize that sooner or later this policy was going to go several of them even acknowledged in private conversation that it was just a matter of time and there was a real sense that the tide is running the wrong way on this issue wrong way from their point of view right away from our point of view and they were just trying to hold it back for a little while so it wasn't under their watch that this uh this this terrible thing happened well i guess i uh we we only really have about 30 seconds remaining in the show i don't know how the time goes by so fast there are probably three or four thousand other issues we could talk about but it feels to me sky like what what you said about the tide turning is really true and whether the media is deeply enmeshed in this whether the court still has the kind of moral suasion that i think we've always thought it has for hundreds of years where oh they said it and it's not only the law there's something beyond it just being the law it's right you know it's an announcement of what is right and americans kind of aspiring to to being on the side of fairness and justice and stuff and i think it makes most people feel good when they come out with something like this so thank you all three very very much for being here with us thank you very much for sticking with us through this i hope this was as much fun for you as it was for me and remember no matter when anyone says to you that anything's wrong with this community you say we're here we're queer get used to it see you next time [Applause] [Music] [Applause] [Music] you