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Is It Too Soon For A Gay Marriage Court Battle?


Last week, the Supreme Court decided to take up two cases that focus on same-sex marriage, but some gay rights advocates worry that now may not be the best time. Rulings to uphold California's Proposition 8 and the federal Defense of Marriage Act would be a major setback. Even if they're struck down, the rulings could well leave same-sex marriage bans in effect in 30 states. Supporters of gay marriage, given these cases and given this court: is now the right time?

800-989-8255. Email us: talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. Jonathan Capehart is an opinion writer for The Washington Post. He posted a piece called "Supreme Caution on Court and Gay Marriage" to the PostPartisan blog, and he joins us now from a studio at the newspaper. Nice to have you back on the program.

JONATHAN CAPEHART: Thanks very much, Neal.

CONAN: And you advocate - somewhat reluctantly - a punt. What do you mean by that?

CAPEHART: Well, a punt meaning that there's a way for the Supreme Court to allow marriage equality in the states where it's already legal - nine states plus the District of Columbia - that leave aside the cosmic issue of whether there's a constitutional right to marry for a later date.

CONAN: So in other words, Proposition 8 applies only to the state of California and not to the other 49 states. And the Defense of Marriage Act, well, that covers the issue of equal treatment under federal law for gay spouses, but...


CONAN: ...that goes no further than that.

CAPEHART: Right. And so what would end up happening - I mean the punt is hardly ideal, but what it would do is that it would be the first step of what would be a two-step solution that makes the second step of full marriage equality even more inevitable. Because what ends up happening is, you'll have gay couples legally married in California or New York who would be able to then avail themselves of the more than 1,100 federal rights and responsibilities because then the federal government would recognize a same-sex spouse for the first time.

And so if - let's say if I were to get married to my partner, we could then file joint tax returns which a gay couple in, say, Oklahoma would not be able to do. It would be separate and unequal.

CONAN: Yet, some people say - who observe the Supreme Court, say, look, this is the first time the court has ever taken up the issue of same-sex marriage. They're not likely to take off a big chunk, everything, in one bite.

CAPEHART: Correct. And that's why I'm thinking more and more that this punt, as I call it or this two-step, might be something that that we see when the court hands down its decision in June. Remember, they're not going to hear arguments in these cases, until about March. And it will be then when we see the amicus briefs from both sides and then when we get to hear the actual - the arguments that are made in the Supreme Court will we get an end on top of that the questions that the justices ask the lawyers on both sides. That's when we will get a clearer view as to where the court might go in terms of ruling in these two very important cases.

CONAN: And make no mistake, you write in your piece and you've said many times you prefer a sweeping decision that made gay marriage legal in every state. Nevertheless, you would be willing to live with the punt - a punt that, well, some people will point out would leave gay people, in at least 30 states, unable to live equally.

CAPEHART: Right. But as I say, it's that this punt would set up a two-step process with the first step making the second step almost inevitable because, you know, this is a nation of laws, and equal protection under the law is there in the Constitution. It is a guarantee. And so it would be incumbent upon gay couples who are not living in one of those states where marriage equality is legal to bring the challenge and force the court to finally answer the question. You know, I'm an optimist at heart, but I'm also a realist. And I think this punt is probably a whole lot more realistic than seeing a sweeping, beautiful ruling giving a constitutional right to marry to gay and lesbian couples - to see that come in June. You know, if that were to happen, great. But like I said, I'm a realist.

CONAN: OK. Yeah, then we've obviously not heard those arguments or seen those briefs yet, so this is all speculative. There's the other option. They could strike down the 9th Circuit Court's decision on Proposition 8, and they could uphold the Defense of Marriage Act.

CAPEHART: Right. They absolutely could do that. And I'm glad you bring that up because I think we sometimes forget that, you know, there are two sides to every argument, two sides to every possibility. I think, though, that because the country has gone - is so far ahead of where the court might be in terms of public opinion, the country is light-years ahead of where it was in even 2001. In 2001, most of the country was against marriage equality. Today, just a slight plurality is in favor of it. You know, we are light-years ahead of where we were, and we have a long way to go.

But I think, you know, with these cases, I think people just can't - they can't fathom a Supreme Court coming down on the wrong side of history, especially when there are so many cases, so many couples out there, real stories of how this discriminatory law - and I'm speaking of the so-called Defense of Marriage Act - is impacting real lives.

CONAN: There is also the possibility that if the court, for example, punts, as you suggest, it will then let that stand for, you know, five, 10, 15 years before it decides to revisit the issue again.

CAPEHART: But again, that goes back to something I said just a moment ago where it would then be incumbent upon couples in those states that are unduly affected by such a punt to bring - to sue, to work their way and win their way through the court system to get to the Supreme Court to force the court to finally, once and for all, answer the cosmic question: Is there a constitutional right to marry?

CONAN: There is also the other issue you mentioned in your piece, the division and controversy that's continued after Roe v. Wade on abortion. That was the Supreme Court making a universal ruling. You cannot bar abortion in any of 50 United States. But at the same time, that didn't settle the argument. A lot of people say those issues should have been settled by state legislators state by state, then you would've had real politicians taking real stands. People would've been much more settled one way or the other.

CAPEHART: Right, because by the time that question got to the court, if there is more state action, the court would basically just ride the wave of what was happening in the states. And that's one of the concerns among many LGBT activists that because you have 33 states, 30 states with state constitution - state constitutional bans, three states who have done it by statute, most of the country is not there yet on marriage equality. But on the other hand, the fact that four states in November took pro-marriage equality stances - three states: Washington, Maine...

CONAN: Maryland

CAPEHART: ...and Maryland, yes, thank you.

CONAN: Your state.

CAPEHART: And Maryland all approved at the ballot box marriage equality. In the state of Minnesota, an attempt to write discrimination into that state's constitution was beaten back at the ballot box by the voters. Those are all signs that the country is moving in the right direction, but that's four states. If, as Evan Wolfson writes in The New York Times today on their opinion page online, if the community, if gay rights activists can get other states such as New Jersey to pass marriage equality and get them signed into law by their governors, that that would be more of a signal to the Supreme Court that whatever they decide to do, they will be on the right side of history. And as we know, those justices, particularly Chief Justice Roberts, is very mindful of the role of the court in its place in history.

CONAN: Our guest is Jonathan Capeheart, an opinion writer for The Washington Post. Given this court, given these cases, is this the right time? We want to hear from gay marriage advocates. 800-989-8255. Email: talk@npr.org. And we'll start with RJ(ph). RJ on the line with us from St. Louis.

RJ: Yes. Thanks so much for having me. I - as excited as I am that these are finally going to be heard by the courts, it seems to me it might be better to wait another couple of years. It seems likely we might get another Obama Supreme Court nominee that would tip the balance of the court for the first time to the progressive side and that a more sweeping stance than the punt would be better because then we're just going through protracted battles in 30 states over the course of who knows, the next 10 years, unless an additional Supreme Court ruling comes down even later. And who knows how long that could take? It's just that - go ahead.

CONAN: And you speak to the idea that Justice Kennedy is the swing vote. Many people believe - again, we have no idea about this. We have not heard the argument. We have not seen the briefs. We have not heard the questions. But that, for example, the Proposition 8 decision in California was very carefully written, quoting Justice Kennedy.

RJ: Yeah. And the nice thing is how well that is prepared for its viewing before the Supreme Court, that case in general. But I do think the punt is a real concern. And, you know, I live in Missouri, but I'm a California native. And while I would of course love Prop 8 to be overturned in the state of my birth, at the same time, I live in Missouri. I don't want to have to fight another series of battles two or three years down the road if I were to choose to get married. It's a...

CONAN: Let me ask you another question. If you're familiar with Missouri politics, do you think if the court rules a Roe v. Wade-type decision in favor of gay marriage, there will be people in Missouri who will be extremely upset and try to find a way around that?

RJ: Oh, absolutely. I think the swing in this state from a bellwether state to a growing and more conservative state, particularly in the last two elections is certainly cause for concern. I went to school in Springfield, Missouri, which is, you know, the buckle of the Bible Belt and that state was incredibly anti-gay. I live back in St. Louis now, and the difference even from the second and third largest cities in the state is extreme. And it's a state of division. It's a state, you know, we were talking earlier on NPR today, you were talking about the racial divide here. And there is some lingering 1950's negative Americana, I think, in the state, and I definitely feel like some people would try and put a stop to that. I mean, our constitutional amendment was already passed...

CONAN: Right.

CAPEHART: ...that prohibited, you know, in the event that we're going in the direction that we're going. So, you know, it takes a lot to overturn constitutional amendments and, you know, they can be swept out obviously by Supreme Court fiat. But it can get a little politically bloody, let's say.

CONAN: RJ, thanks very much for the call. Appreciate it.

RJ: Thank you.

CONAN: We're talking about the Supreme Court and same-sex marriage. Is this the right time to bring these cases up, gay marriage advocates? You're listening to TALK OF THE NATION from NPR News.

And Gary's(ph) next calling from Cincinnati.

GARY: Hello. Yes. Thank you.

CONAN: Go ahead.

GARY: I'm completely on the other side from guest and some of your callers. I believe this is the perfect time to put forward the gay rights marriage and the same-sex unions and rights because of the very states which have already passed those laws. And the basis of the Constitution says you can't have any law put forward which either favors or bolsters a religious position over any other religion.

CONAN: I have to say I don't believe either the cases before the court this time make the religious argument or make the case that this is on any religious basis or on the First Amendment.

GARY: But this is the basis of these laws are based on the forwarding of right wing religious organizations putting forward the laws through lobbying.

CONAN: I hear you're reasoning that this is based in biblical theory, but it's not based in biblical legal theory, Jonathan Capehart, I don't believe.

CAPEHART: Right. No. When it comes to Proposition 8 - Proposition 8, it is a challenge to that state - state's constitutional ban on same-sex marriage. When it comes to the case out of New York, that is a direct challenge to the so-called Defense of Marriage Act and it's not based on religion at all. It's based on the fact that Edith Windsor had to pay a total of $600,000 in estate taxes - that's federal and state taxes - when her partner-wife of 40 years died.

And because the - because Windsor - Mrs. Windsor is not viewed as a spouse by the federal government, she's not allowed, you know, survivor benefits and to take advantage of any of the other things that a heterosexual widow or widower would be able to avail themselves of. So we're not talking religion here. We're talking about cold, hard law and the ability for people to have equal protection under the law when good things happen and when - in the case of Windsor, when bad things happen.

CONAN: Let's go next to Blake(ph), another caller from Saint Louis. Go ahead, Blake.

BLAKE: Hi. Thanks for taking my call.

CONAN: Go ahead.

BLAKE: So here's my thing, and I'm going to try and make it as brief as possible, but try to follow me. I kind of all think it's the right time right now. And for full disclosure, I am a gay 23-year-old college student. I don't think it's the right time right now simply because, for instance, take South Carolina or North Carolina, whichever one it was. They had a ballot measure a little while back, where about 54 percent of the population was against legalizing gay marriage.

But when they were asked (technical difficulty) and also realized that that ban would've also applied to civil unions and domestic partnerships, when they were asked, would they support those, 72 percent - a full 72 percent said that they would. So where I'm coming from is that I think that - I mean, say, for instance, a person can go to a church (unintelligible)...

CONAN: And we're going to have to appeal to your commitment to brevity, Blake. We're running out of time here.

BLAKE: Here we go: A person can have a 12-hour ceremony at a church, right? But until they go to the courthouse and sign those documents, it doesn't mean anything. So if the goal is protection under the law, then we should go for whatever applies with that.

CONAN: Ah, I see. The hang-up is over the word marriage. And Jonathan Capehart, he's right. We do hear that a lot.

CAPEHART: Right. And unfortunately for Blake, you know, that horse has already left the barn. What we have now, and I completely understand where you're coming from. But what we have now is a president - sitting president of the United States who has said that he personally believes that same-sex couple should be married. Within the Democratic Party, there are at least two presumed candidates for president: the governor of Maryland, Martin O'Malley, the governor of New York, Andrew Cuomo, who have personally gotten themselves involved in the passage of their own state's marriage equality laws.

We are now at a situation where domestic partnerships and civil unions, as much as they've given protection and some stability to same-sex couples, that they are now seen as outdated, and that marriage equality is the way to go. So while I understand, Blake, what you're saying and where you're coming from, actually, that country has moved beyond that.

CONAN: Blake, thanks very much for the call. And, Jonathan Capehart, thank you again for your time.

CAPEHART: Thank you so much, Neal.

CONAN: Jonathan Capehart, an opinion writer for The Washington Post. Tomorrow, Political Junkie Ken Rudin returns for another round of trivia and, of course, the Political Junkie segment. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.

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