Star college football player Michael Sam could become the first openly gay player in the NFL. That news comes as the Department of Justice vows to enforce federal rights for same-sex couples. Diane and her guests discuss how advances in gay rights are shaping law and sports.


  • Gregg Easterbrook Author, "The King of Sports: Football's Impact on America." He is a contributing editor of "The Atlantic Monthly" and "The Washington Monthly," and a columnist for
  • Evan Wolfson Founder and president of Freedom to Marry.
  • Bruce Fein President, National Commission on Intelligence and Foreign Wars; former associate deputy attorney general under President Ronald Reagan; author of "Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy."
  • Stuart Delery Assistant attorney general for the civil division, Department of Justice.


  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Star college football player Michael Sam could become the first openly gay player in the NFL. That news comes as the Department of Justice vows to enforce federal rights for same-sex couples. Joining me in the studio to talk about how advances in gay rights are shaping law and sports, sports writer Gregg Easterbrook -- he's author of the book, "The King of Sports" -- and constitutional lawyer Bruce Fein.

  • 10:07:29

    MS. DIANE REHMJoining us from NPR's New York studio, Evan Wolfson of Freedom to Marry. But first, joining us from his office in Washington is Stuart Delery. He's assistant attorney general for the Civil Division at the Department of Justice. Thanks, Stuart, for joining us.

  • 10:07:52

    MR. STUART DELERYThank you. It's good to be with you.

  • 10:07:53

    REHMStuart, tell us about the new policy memo. What does it say? And why did the attorney general issue it now?

  • 10:08:05

    DELERYWell, the attorney general's policy issued on Monday is a statement about equal recognition of marriages for the Department of Justice. And it provides that the department will recognize same-sex marriages to the full extent federal law permits, if valid where the marriage was celebrated and regardless of where the people currently live.

  • 10:08:32

    DELERYThis was the department's key step in implementing the Supreme Court's decision last June in United States vs. Windsor, which had held unconstitutional Section 3 of the Defense of Marriage Act. And it's part of a broader effort that the Department of Justice is leading in cooperation with agencies across the government to implement that decision by the Supreme Court.

  • 10:08:58

    REHMSo what does all that mean in practical terms?

  • 10:09:03

    DELERYWell, so for the Department of Justice, it means some very specific things for programs that we administer or for matters that we handle in court. So, for example, we administer a program that provides for benefits, death benefits, and educational benefits to surviving spouses of public safety officers, firefighters, or police officers who are killed in the line of duty. And so those benefits will be provided to same-sex spouses on the same terms as opposite-sex spouses.

  • 10:09:44

    DELERYAnother example is that the attorney general has directed that our lawyers recognize the privileges that spouses have, married couples have not to testify against each other in court and that those privileges will be recognized for same-sex couples as well. So those are some examples for the Department of Justice. It's part of, as I indicated, a broader effort to recognize marriages to the extent possible for benefits across the federal government.

  • 10:10:18

    REHMAnd what about spousal privilege?

  • 10:10:23

    DELERYWell, so, in general, people who are married to each other are not required by the courts to give testimony against each other in a civil case or even in a criminal case. And so the attorney general has directed that the Department of Justice lawyers recognize those privileges and take them into account as they conduct their cases.

  • 10:10:48

    REHMStuart Delery, what about the criticism that the DOJ has really gone too far?

  • 10:10:59

    DELERYWell, I think in this project, the department and the federal government generally are implementing the decision by the Supreme Court in Windsor. That case was an historic milestone for equal protection under the law for all Americans, as the president and the attorney general have said. And the president directed the department, immediately after the decision, to work with agencies in order to ensure that the decision is implemented swiftly and smoothly. The Supreme Court said that the federal government cannot create a group of second-class marriages for purposes of federal law.

  • 10:11:37

    DELERYAnd it, in fact, noted that there are many benefits of marriage that the Defense of Marriage Act was denying to same-sex couples. And so, through this process, the department is looking to the text purpose in history of the statutes and programs and the Windsor decision itself to really implement the letter and the spirit of the Supreme Court's decision.

  • 10:12:01

    REHMAnd you have the National Organization for Marriage, Brian Brown, the group's president, saying, "The changes being proposed here to a process as universally relevant as the criminal justice system serve as a potent reminder of why it's simply a lie to say that redefining marriage does not affect everyone in society."

  • 10:12:37

    DELERYWell, I do think, Diane, that, as the Supreme Court recognized in Windsor, the Defense of Marriage Act had real consequences for real people by denying a whole range of benefits to people in the course of many federal programs. Some of these programs are critical to people who need them for health insurance, for example.

  • 10:13:01

    DELERYAnd so, if you look at what the agencies have done over the last few months, the same-sex marriages are now recognized for all federal tax purposes, including filing joint returns. Spousal benefits are now available to military service members who are serving overseas. Health insurance is available for same-sex spouses of federal employees.

  • 10:13:24

    DELERYAnd citizens who are in same-sex marriages can now sponsor their spouses for immigration benefits. And the list goes on. All of these things are federal benefits, provided under federal law, and the agencies, like the Department of Justice, have concluded, following the Supreme Court, that the marriages that are lawful where they're performed should be recognized for these purposes.

  • 10:13:51

    REHMAnd what about the criticism that it doesn't go far enough because it only applies to individuals in "valid marriages" and not to domestic partnerships or civil unions?

  • 10:14:08

    DELERYWell, I think the president, for several years now, has given policy direction that agencies should provide benefits to same-sex couples to the greatest extent possible under the law. The statutes that we're talking about now are about statutes that tie a benefit or an obligation -- in many cases, they are obligations -- to marriage. And so that's what this implementation project is about.

  • 10:14:38

    REHMAnd finally, Stuart, there is that thought that the Obama Administration is simply picking and choosing those laws it doesn't like to somehow execute in a different way.

  • 10:14:58

    DELERYI think this context, Diane, is very different. As I indicated before, the Supreme Court has spoken very clearly and said that the restriction of federal benefits to opposite-sex couples was unconstitutional. And so this project has been a painstaking one but an important one of going through the federal programs to make sure that the Supreme Court's ruling is being implemented, and not just through policy statements in Washington.

  • 10:15:35

    DELERYWe also are trying to make sure that it's implemented in a real way so that when people walk into a federal office across the country, wherever they are, that the marriages will be recognized to the full extent of federal law.

  • 10:15:47

    REHMStuart Delery, he's acting assistant attorney general for the Civil Division at the Department of Justice. Thanks for joining us.

  • 10:16:00

    DELERYThank you very much.

  • 10:16:01

    REHMAnd turning to you, Bruce Fein, your thoughts on DOJ's memos and Stuart's comments?

  • 10:16:11

    MR. BRUCE FEINFirst, I think the objection to the decision not to enforce the Defense of Marriage Act was about the state of the law prior to the Supreme Court's decision. That is, the president -- or the Justice Department unilaterally decided, we really don't like this law, even though it's defensible. The Supreme Court ruled only 5-to-4 that it violated equal protection precept of the Fifth Amendment.

  • 10:16:36

    REHMBut it did rule.

  • 10:16:37

    FEINOh, it did. But I'm talking about before the ruling. When I was in the Department of Justice, the standard was any statute was required to be defended unless it was flagrantly unconstitutional, that you couldn't find anybody in the land who had a legal degree who would think it would survive Supreme Court scrutiny.

  • 10:16:56

    FEINYou can't say that about a statute that was invalidated by a 5-to-4 vote. And of course the precedent is quite worrisome. Because if the president can pick and choose which statutes he thinks at some time might be invalidated by the Court, he can really nullify a whole host of statutes that he doesn't like, civil rights laws, laws against regulation or otherwise say, well, I think Supreme Court may rule that Obamacare or the prior decision in Sibelius was wrongly decided, so I don't want to enforce Obamacare anymore since it may be overruled at some future time.

  • 10:17:28

    FEINThat creates really havoc in the even-handed enforcement of the laws. Now, in some cases -- in the DOMA case, you know, you can notify Congress, and Congress itself then can hire a lawyer to defend the statute. But that's very impractical on a regular day-to-day basis. With regard to the general observations made by the acting assistant attorney general, I think they're not complete.

  • 10:17:49

    FEINWhere I think he didn't address this issue that was not presented in the Windsor case, what happens if you have a marriage that's legally consummated in one state, you move to another state that doesn't recognize same-sex marriages? Now, the Defense of Marriage Act has a provision that says no state shall be required to recognize a same-sex marriage that's consummated in a sister jurisdiction. That's under the full faith and credit clause. And he was basically saying that that provision de facto is not going to have standing in the federal executive branch.

  • 10:18:23

    REHMBruce Fein, he's author of "Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy." Short break. Right back.

  • 10:20:00

    REHMAnd we're back talking here in the studio with Gregg Easterbrook. He is the author of "The King of Sports: Football's Impact on America." He's a contributing editor at The Atlantic magazine and the Washington Monthly. Bruce Fein is here as well. He's author of "Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy."

  • 10:20:32

    REHMAnd joining us from the NPR studio in New York, Evan Wolfson. He's founder and president of the organization Freedom to Marry. Evan Wolfson, you say gay marriage advocates now have momentum on their side. Do you think the Department of Justice memo is a reflection of that?

  • 10:21:03

    MR. EVAN WOLFSONI do think it's a reflection of the momentum, of the majority support now across the country in favor of the Freedom to Marry, but most of all, as Atty. Gen. (sic) Delery said, it's a reflection of the law. The Constitution's command of equality is very, very clear. And the Supreme Court brought additional constitutional clarity last year in its ruling that established that there is no good reason for treating one group of couples differently from another simply because they happen to be gay.

  • 10:21:33

    MR. EVAN WOLFSONAnd the court spoke with authority. It refuted every single argument that's been put forward to justify these kinds of discrimination. And what the president and the attorney general and Stuart Delery and his team and the agencies have been doing is showing great fidelity to the law and making clear that couples who are married should be treated as what they are, married, when it comes to federal programs.

  • 10:21:55

    REHMBut how do you react to the idea that this will not cover civil unions, that these couples have to have been married in a state that accepts gay marriage?

  • 10:22:15

    WOLFSONWell, no, that's not exactly right. What the assistant attorney general said correctly is that, when it comes to federal programs and purposes, you're married. And once you're married, you're married even if you're living in a state or traveling through a state or assigned for work to a state that discriminates. Marriage is...

  • 10:22:31

    REHMNo, I understand that. I understand that. But what about civil unions?

  • 10:22:37

    WOLFSONYeah, well, civil union is a separate other legal status that is no substitute for marriage. And what the Supreme Court case involved was marriage. And what the Justice Department correctly is addressing is marriage.

  • 10:22:49

    REHMAll right.

  • 10:22:49

    WOLFSONIt's a wholly -- it's a separate question whether we in our country ought to be pegging every single legal protection to marriage alone or whether we ought to respect other families, which personally I think we should. But that's just a separate question.

  • 10:23:02

    REHMOkay. And turning to you, Gregg Easterbrook, do you see a connection between the coming out of Michael Sam and what the Department of Justice has done? Are both an indication that the country is moving farther along the path to acceptance?

  • 10:23:29

    MR. GREGG EASTERBROOKWell, whether Michael Sam's decision to come out was influenced by the Justice Department, you'd have to ask him. But I do think the reason that these things are happening at roughly the same time and the reason we're so fascinated with a potential NFL player coming out is that we're fascinated by the NFL because it holds a mirror up to society. And the general acceptance of gayness is a social trend that's been happening.

  • 10:23:56

    MR. GREGG EASTERBROOKIn recent generations, we've seen general acceptance of several things that were once considered wrong or bad or shameful in some way. Now it's the turn of gay community to be generally accepted. It's in progress. And the NFL, representing what it represents, it's the number one sport in the number one nation. If the NFL accepts gayness, which I think it's going to, that's a big step forward.

  • 10:24:19

    REHMSo you don't think Michael Sam is going to have a problem being accepted into the NFL.

  • 10:24:28

    EASTERBROOKWell, first, he's got to make a team. He...

  • 10:24:30


  • 10:24:30

    EASTERBROOKBut let's assume he does.

  • 10:24:31


  • 10:24:32

    EASTERBROOKI think his chances are pretty good. There's going to be individuals, and there's going to be catcalls at games. But I think, in general, the league will accept him. And I'll tell you two reasons why. One is that Jonathan Vilma, the star linebacker of the New Orleans Saints, said, I don't want a gay guy looking at me in the shower -- standing next to me in the shower. There's always been gay guys standing next to him in the shower. They just weren't honest about it before.

  • 10:24:55

    EASTERBROOKThe Williams Institute at UCLA, if their estimate of gay percentage of the adult population is correct, there's about 50 NFL players right now who are gay. And there's also about 20 NFL cheerleaders who are gay, if those estimates are correct. And if this comes out, wouldn't you rather have a teammate who's honest with you about himself? I certainly would.

  • 10:25:16

    REHMBruce Fein, legally, can the NFL ask a player is he is gay?

  • 10:25:26

    FEINWell, I think, as Gregg and I were talking beforehand, there's a collective bargain agreement that the NFL -- with the players that says that the New York laws against discrimination shall apply. And they certainly protect against gender discrimination. So it would be highly probative of an illegal discriminatory intent if they raise the question without any connection with his ability to play on the football team.

  • 10:25:48

    REHMSo all of it comes down to just how good a player Michael Sam really is. Or could he -- suppose he is not drafted by any team within the NFL.

  • 10:26:05

    EASTERBROOKThat could happen. Doug Baldwin just scored a touchdown for the Seattle Seahawks in the Super Bowl. He wasn't drafted by anybody either. Drafting is an art, not a science. And it's amazing how often coaches are wrong in their draft choices.

  • 10:26:18

    REHMBut could he sue, Bruce...

  • 10:26:19

    FEINNo. Well, the collective bargain agreement doesn't apply to someone who's actually not on a team roster.

  • 10:26:25

    REHMSo that's...

  • 10:26:25

    FEINHe's probably out of luck is what I'd like to say. I'd like to make this one observation, Diane, about this issue of what is the status of a same-sex marriage legally consummated in one jurisdiction in a second jurisdiction that doesn't recognize it once the couple actually has moved, its established new residence there. And that still remains an open question. As I say, one provision of the Defense of Marriage Act stipulates that no state shall be required -- permitted but not required to recognize a same-sex marriage legally consummated in another state.

  • 10:26:59

    FEINNow, maybe you could argue that kind of discrimination is unconstitutional. But clearly, under the full faith and credit clause, the Congress has acted in this way. And it's premature to say that once you're legally consummated as a married couple in one state, you can go anywhere you want and move wherever you want, and you'll still be viewed as having a marriage legal status.

  • 10:27:18

    REHMBut the department...

  • 10:27:18

    FEINWell, actually that statute...

  • 10:27:19

    WOLFSONThat part of...

  • 10:27:19

    REHMGo ahead, Evan.

  • 10:27:21

    WOLFSONThank you. That part of the so-called Defense of Marriage Act is as riddled with discriminatory intent and purpose as the part that the Supreme Court struck down last year. To single out gay people's marriages and say that, of all the marriages in the country, these are the only ones that will sputter in and out like cellphone service depending on where people are parking that day is clearly unconstitutional.

  • 10:27:43

    WOLFSONAnd although the Supreme Court has yet to reach that direct question, it is clear that's where it's heading. And we've seen several federal courts over the last just few weeks come to the logical conclusion that discrimination against gay couples who are seeking and who are entering into marriage is wrong.

  • 10:28:00

    FEINI understand, but that's not a Supreme Court decision yet. You're anticipating the law. The requirement of the Department of Justice...

  • 10:28:05

    WOLFSONAs are these other judges.

  • 10:28:06

    REHMHold on. Let him finish.

  • 10:28:07

    FEINYeah. Yes. Then the judges are permitted to do that. The executive branch is not supposed to try to anticipate what courts may do in the future. Unless it's totally, you know, a frivolous defense, they're supposed to uphold what the existing federal statute provides even if it ultimately is unpersuasive. And the Supreme Court went out of its way in Windsor to say, we are not deciding whether same-sex marriages that are prohibited within a single state are unconstitutional.

  • 10:28:33

    REHMAll right.

  • 10:28:33

    FEINThat was clear statement that you shouldn't prejudge what our conclusion's going to be.

  • 10:28:37


  • 10:28:37

    WOLFSONRight. But what you're blurring here is the distinction between what states must do and what the federal government must do. What the attorney general has been working on and what the agencies and the president and the administration have done is to say that, we're not telling states what they have to do. But for federal programs and federal purposes, the federal government will treat people with respect no matter where they live. And that's an absolutely appropriate exercise of the federal government's law.

  • 10:29:01

    FEINBut I think that's in effect stating that the Defense of Marriage Act, in part in so far as it addresses the full faith and credit clause is unconstitutional, a conclusion that was not reached in Windsor.

  • 10:29:11


  • 10:29:12

    FEINBecause they're saying for federal purposes we will not permit a state to say you are not married even though you're a resident in that state that prohibits same-sex marriage if you are consummated as a married couple in a jurisdiction that recognizes it.

  • 10:29:24

    WOLFSONBut just one small point, that's not correct. What you're saying is not what's happening. Nobody is -- right now is telling the states what they must do. What the federal government is saying for the federal programs and federal purposes the state discrimination won't control, the constitution will control.

  • 10:29:40

    REHMEvan Wolfson, he's founder and president of the organization Free to Marry. Evan, do you think that society and the NFL coaches and football players are ready to embrace gay pro football players?

  • 10:30:02

    WOLFSONYes, I do. I think America is ready to turn the page on this long and difficult chapter of discrimination. I think the majority of Americans have come to understand that gay people are part of the family, that gay people are part of the team and that gay people are part of the spectators. And that gay people should be treated with the same rules, the same respect, the same responsibilities to play well or to participate well or to conduct themselves well, but they should be entitled to that shot in life without discrimination.

  • 10:30:30


  • 10:30:31

    WOLFSONI think we're seeing that across the country.

  • 10:30:33

    REHMBruce, putting aside the legal arguments for a moment, do you agree with Evans that society is ready to move past?

  • 10:30:44

    FEINWell, I think society moves at incremental phases. And I think at some point, maybe 20, 30 years, this whole debate we're having now will be moot, and we'll just accept that gay people are like anybody else and wonder why we ever had the debate. But cultures move slowly. The issue of race discrimination wasn't resolved in Brown against the Board in 1954. It took several decades afterwards. Now, it doesn't mean it'll be that long here, but I do agree ultimately the United States will have a culture that accepts gays as equal as the heterosexuals.

  • 10:31:11

    REHMDo you think these are equivalent?

  • 10:31:14

    FEINYou mean in terms of the...

  • 10:31:15

    REHMThe 1954 decision of Brown v. Board of Education and gay federal and state rights?

  • 10:31:25

    FEINI mean, the answer I suppose is yes and no. I don't think that the discrimination against gays is unjustified as it might be, ever was as vicious as racial discrimination that resulted in beatings and hangings, depravation of the franchise, beating up people who tried to organize to ask for the right to vote. Those kinds of discriminations, not -- people have been able to vote. You don't find, you know, lynching -- well, yes, you had Matthew Shepherd.

  • 10:31:51

    REHMYes, you do.

  • 10:31:52

    FEINBut on the scale of racial discrimination, I don't find it comparable.

  • 10:31:57

    WOLFSONWell, actually...

  • 10:31:57

    REHMBruce Fein and you're listening to "The Diane Rehm Show." Evan, you wanted to say something.

  • 10:32:07

    WOLFSONYeah, I just wanted to say, this is something that Prof. Fein and I mostly agree on. No discrimination is the same as the other, and you -- they don't -- we don't have to have a hierarchy of oppression to be able to say that when anybody is denied the ability to participate fully and equally in our society, in our country and under the law, that's discrimination. It doesn't mean it's the same, and we don't have to get into a ranking order and try to take away from somebody else's difficult experience to acknowledge that barriers like this are wrong.

  • 10:32:38

    FEINBut I do think, Diane, that it at least is relevant in deciding how to procedurally approach the issue. That is the Supreme Court has said when there's a log jam in the political process that makes you defenseless, you're never going to prevail in court -- I mean, in the legislative body, don't even have the right to vote, that the argument for judicial intervention is much greater than if you are able to organize and exercise and demonstrate political clout, which I think is clearly true in the indication of the gay rights movement.

  • 10:33:05

    FEINWe see the state legislature, as well as courts recognizing same-sex marriage. And that relates to the prudential issue as how we move forward in this quest.

  • 10:33:13

    REHMSo do you think it's going -- the whole issue is going back to the Supreme Court?

  • 10:33:20

    FEINWell, I think it'll ultimately get up to the Supreme Court because we do have lower courts holding the general state prohibitions on same-sex marriage unconstitutional, an issue that the Supreme Court decided to leave unresolved in the Windsor case. And I don't think the court will sit by and let those decisions remain unaddressed. And the Supreme Court may ultimately address it head on in a year or two.

  • 10:33:43

    REHMAnd, Gregg, to you, if Michael Sam is drafted, do you think the NFL is really going to open itself easily? Or are we going to see some rough spots along the way?

  • 10:34:00

    EASTERBROOKOh, there's sure to be rough patches, but think of what pro football is. Fundamentally it's a form of entertainment. Whether the Bears beat the Lions doesn't matter in the long run as long as the audience is entertained. So can a gay man hold his own -- an openly gay man hold his own in the National Football League? That's an interesting question. People are going to tune in to find out what the answer is. It's going to be good entertainment.

  • 10:34:23

    REHMTalk about how good, how talented Michael Sam is.

  • 10:34:30

    EASTERBROOKWell, when he first made this announcement roughly a week ago, I immediately did the obvious. I went to ESPN's website and looked under the rankings of the draft guru Mel Kiper. And he did not have him in the top 10 at his position. So he'll have to struggle to make a team, but I think his chances are pretty good.

  • 10:34:49

    REHMBut he is, what -- he's 6'2". He's 260 pounds. He's first team all-American named AP defense player of the year in the Southeast Conference. That makes him pretty good, doesn't it?

  • 10:35:06

    EASTERBROOKOh, I've watched a film of him. You would not want to get in his way during a football game. But we have this cultural concept that all gay men watch Julie Newmar movies and bake macaroons all day. There's some gay men who are very macho. And Michael Sam, he is a macho man. We'll just have to see if he can make it at the ultra-competitive level of the NFL.

  • 10:35:27

    REHMAnd, Evan, what do you see as the next step forward for the gay rights movement?

  • 10:35:36

    WOLFSONWell, we're going to continue making the case, the same strong case for the freedom to marry in the court of public opinion that our advocates are making in the courts of law. And what we're seeing is that this conversation is now happening all over the country. It's not just in New York or California. It's in the heartland.

  • 10:35:54

    WOLFSONIt's in Indiana where we're on the verge of now blocking an anti-gay constitutional amendment that, on its first vote a couple years ago, sailed through. And now we're likely to be able to block it because in Indiana people are talking about who gay people are, people like Michael Sam and their neighbors and why marriage matters to these families. And that conversation is moving.

  • 10:36:15

    WOLFSONFreedom to Marry, a couple weeks ago, put out a poll in which we took out all the marriage states, all the states where we've won and we only surveyed the states where there's still discrimination, where gay people are still denied. And we found that there's majority support, even in the non-marriage states for the freedom to marry. Even in the south the support is tied, 46-46 percent.

  • 10:36:37

    WOLFSONThe American people are having this conversation, and they're moving in the right direction. And we need to continue that conversation, even knowing that there are more than 40 cases now percolating across the country, one of which is likely to reach the Supreme Court, if not by next year, one possibility, then in the next few years.

  • 10:36:55

    REHMEvan Wolfson, he's founder and president of the organization Freedom to Marry. We're going to take a short break here. When we come back, time to open the phones. You are always part of the conversation. I look forward to hearing from you.

  • 10:39:58

    REHMWelcome back. Time to open the phones and first to, let's see, Knoxville, Tenn. Hi, Curtis, you're on the air.

  • 10:40:10

    CURTISHello, Diane. It's good to speak with you. I'm a first-time caller.

  • 10:40:14

    REHMThank you. Good to have you with us.

  • 10:40:14

    CURTISAnd I love your show. And I've got to thank you for bringing the dialogue up in America some. I'd also like to thank Mr. Wolfson for the excellent job he's done over the years in fighting for gay rights. With that, I'll get straight to the point. I met a wonderful person in 2009 and have been with him ever since. Unfortunately, he was here undocumented. So since 2009, we've sort of lived in fear of him getting caught, him getting deported.

  • 10:40:43

    CURTISAnd thanks to this groundbreaking legislation in the Obama Administration's leadership, we got married last year in the State of Maryland. I'm from Tennessee. We live in Tennessee, but we went to Maryland and got married. And we've just received his documentation from the Homeland Security Department, so we're very excited about that.

  • 10:41:04

    CURTISMy question to Mr. Wolfson is, for the state -- for our marriage, the government recognizes us as having been married in 2013 as opposed to 2009. So we're basically starting at the end of the line so to speak, meaning it'll take two years for him to get permanent residence status and another three for him to be eligible for citizenship. And do you see that changing so that the federal government will recognize these marriages? And we have proof of the marriage existing since 2009, albeit not legally, do you see evidence of the federal government moving to recognize these marriages retroactively?

  • 10:41:42

    REHMAll right. All right. Evan, do you want to comment?

  • 10:41:47

    WOLFSONWell, the normal rule in litigation and in legal change like this is that it isn't retroactive. Now, there are arguments that could be made about how unfair that is and how you would've been married, but for discrimination that should never have happened. And that's an argument that's still out there to be made.

  • 10:42:06

    WOLFSONWhether it's going to prevail or not, I don't know. I think that most likely what's going to happen is we're going to work as hard as we can, and we have to continue to work, to get rid of the discrimination definitively so that going forward at least all of us are treated with respect and our family members are treated with respect.

  • 10:42:23

    REHMAll right. To Sloan in Reston, Va. Welcome to the program.

  • 10:42:30

    SLOANThanks so much, Diane. I always enjoy your show. I appreciate it being on.

  • 10:42:33

    REHMThank you.

  • 10:42:34

    SLOANI just wanted to say, I've been married to my husband for a couple years now. We've been together 20 years. And I just wanted to say Evan Wolfson has done such a tremendous job moving the issue forward. I am hoping he can comment on -- I mean, it seems like the -- one of our greatest challenges is helping people understand that the values of religious liberty and equal rights are in harmony.

  • 10:43:03

    SLOANThey're on the same side of this issue. Our opponents try to serve hear into people and make them think that we are somehow not in favor of religious liberty, when in fact we are in favor of both religious liberty and equal rights. And where marriage as progressed it has not taken away anybody's religious liberty rights.

  • 10:43:24

    REHMAll right. Thanks for calling. Bruce, do you want to comment?

  • 10:43:28

    FEINWell, I think the same kind of argument was raised in the racial discrimination context when there claimed to be religious justification for racial discrimination that was not found acceptable. And I think the same will be true with regard to any other justification for discrimination. The Supreme Court's made quite clear you have secular laws with secular motivations.

  • 10:43:52

    FEINYou can't raise, you know, a religious objection because you don't wish to comply. That would really create a law into, you know, any religious person's self. And I think that's what will happen with regard to the gay rights issue. It has never been in secular law a permissible justification for violation by claiming that you have a religious motivation as opposed to another motivation.

  • 10:44:15

    REHMDo you...

  • 10:44:16


  • 10:44:16

    REHMGo ahead, Evan.

  • 10:44:18

    WOLFSONYeah, well, first of all, I want to say, this is another area where I do agree with Prof. Fein, and I think he said it exactly right, as did the caller. But, you know, when I was in law school, one of the first rules I learned was, if you don't have the facts on your side, argue the law. And if you don't have the law on your side, argue the facts. And if you don't have either on your side, pound the table.

  • 10:44:37

    WOLFSONAnd this argument, this claim of religious infringement is a pound-the-table distraction because, in fact, in all of the states where we have won the freedom to marry and where gay people can now share in marriage, there have been no lawsuits. There has been no attack. There has been no problem because religious freedom and personal freedom are cherished by Americans and are protected under the law, both. And there is no tension here so the problem will turn out not to be a problem.

  • 10:45:03

    REHMEvan, we have a question here from Robin in Lansing, Mich. who wants to know what about transsexuals. Are there any changes in attitudes showing up there?

  • 10:45:20

    WOLFSONWell, absolutely. Across the board, one of the really heartening developments over the last several years has been the progress Americans have made in understanding transgender people, the discrimination that transgender people face, and the way that the laws have to change. There have been important legal rulings coming out of, for example, the EOC and others saying that discrimination against people who have transitioned is not allowed, is illegal.

  • 10:45:45

    WOLFSONBut we still obviously have an enormous amount of work to do at both the state and federal level to protect people who are transgender against discrimination.

  • 10:45:53

    REHMAll right.

  • 10:45:53

    WOLFSONWith regard to marriage, let me just quickly say that...

  • 10:45:56


  • 10:45:56 eliminating the sex restriction on who can marry whom, that actually also helps protect people who are transgender. Because it says that what matters is the love and the commitment and the dignity of people who fall in love and make that commitment in life and deserve an equal commitment under the law.

  • 10:46:15

    REHMAll right. To Daniel in Ann Arbor, Mich.

  • 10:46:20

    DANIEL...Diane. First, I'd like to say that I think that government should get out of the business of marriage. That seems to be going back to the separation of church and state. Also it seems like marriage creates too many winners and losers, like some people may get a tax benefit from being married and other people like my sister, who for years did not get married and had two children out of wedlock. Because if she did get married, it would create -- it would affect her benefits that came from somewhere. So, you know, here's my niece and nephew that her parents are not legally married, so those two issues.

  • 10:47:08

    REHMAll right. Thanks for calling. Bruce Fein, what's your reaction? Should government get out of the business of dealing with the issue of marriage altogether?

  • 10:47:20

    FEINI suppose you could go back to just having common law marriages, which are more de facto than having any particular ceremony. I do think that marriage laws do provide a sense of stability and reliance and protection against changed circumstances. That isn't true if you don't have the ability to make that commitment which has legal consequences for it. And insofar as we want to encourage families and the ability of people to live close with legal protection, I think that the state's involvement in marriage makes sense. And it's certainly true in all western world that we know of. I don't know of any...

  • 10:47:58

    REHMThere are a lot of people who resent the idea that couples receive more tax breaks than single people.

  • 10:48:07

    FEINYeah, but that's just a matter of political clout. And if you all go to the tax code and find discriminations, that's one of the lesser ones amongst all the special preferences that Congress showers upon their favorite political contributors.

  • 10:48:19

    REHMAll right. To South Shore, Mass. Hi there, Andrew.

  • 10:48:25

    ANDREWHi, Diane. Thank you for taking my call.

  • 10:48:27


  • 10:48:29

    ANDREWI'd like to agree with the previous caller first off in saying that the government should get out of the institution of marriage altogether. But I'd like to bring it to Michael Sam for a moment. I think it's wonderful that the subject of gay rights has been brought to football just due to the pragmatic and practical nature of the way football deals with things.

  • 10:48:47

    ANDREWAnd I'd like to point out that I'd love it if Bill Belichick was the coach for Michael Sam because "Good Morning America" would not be able to press in one day after training camp. This is just a perfect example of how society is miles ahead of government on these issues.

  • 10:49:07

    REHMInteresting point, Gregg Easterbrook.

  • 10:49:10

    EASTERBROOKWell, Michael Sam could hope to be drafted by the Patriots. Certainly his career will go better if he goes into a strong well-run organization. But that would be true of any football player would hope to go to one of the well-run organizations. The caller's point on the symbolic nature of this society is oh so true. We said at the top of the show that the NFL is so popular in part because it holds up a mirror to changes in other aspects of society.

  • 10:49:36

    EASTERBROOKThink about the bullying issue in the NFL this fall. A 300-pound heavily muscled player quit the Miami Dolphins because his feelings were hurt over the way people treated him in the locker room. Ten years ago, he would've laughed off at that complaint, but society's view of bullying is changing to feeling that emotional harm is like physical harm. And, again, you see that mirrored in sports.

  • 10:50:00

    REHMGregg Easterbrook, he's author of "The Kind of Sports: Football's Impact on America." And you're listening to "The Diane Rehm Show." And now to David in Little Rock, Ark. Hi there.

  • 10:50:21

    DAVIDGood morning. How are you?

  • 10:50:22

    REHMI'm good, thanks.

  • 10:50:24

    DAVIDOkay. I'll preface my question with an explanation. My lady and I have been together for 45 years. We never chose to get married. We think that marriage is a holy institution, and we don't prescribe to any specific religion. So we figured it would not be a good thing to do. And so for 45 years we've lived as any couple would. We've raised children. We've, you know, made a home and all that sort of thing.

  • 10:50:54

    DAVIDWe didn't need a piece of paper to prove to anybody that we were committed to each other. And my problem has always been as with people who want the rights now that come with marriage that, you know, we didn't get the special privileges. Now why do married couples get these special privileges just because they choose to go through this ritual that we didn't go through?

  • 10:51:17

    REHMAll right. Bruce Fein.

  • 10:51:20

    FEINWell, it's not required by the constitution. It's how the laws evolved. And because more people are married, they have votes, and those in your situation do not have as many votes. If that changes, I'm sure the law may change as well.

  • 10:51:32

    REHMI wonder if fewer people are getting married.

  • 10:51:36

    FEINI don't know because I don't do official surveys. But I think the general impression is that many are just living together for years, 10 years, 15 years before they ultimately decide whether to get married or not. And one of the things that the current legal architecture permits is that choice to be made. Now, it is true, there are some lesser tax benefits you get, but overall it's not what you would call the kind of vicious and oppressive discrimination that makes someone feel oppressed. If they're staying with someone, they're not officially married. So their income tax is a little bit higher.

  • 10:52:08

    FEINBut I think it does challenge whether or not the legal institution of marriage really is essential to encouraging these kind of intimate relationships. And that you don't need legal protection that comes when you have alimony and other things if you fall apart from your partner in order to encourage these kinds of intimate relationship.

  • 10:52:28

    REHMBruce, do you...

  • 10:52:29

    WOLFSONBut I think -- I'm sorry.

  • 10:52:30

    REHMGo ahead, Evan.

  • 10:52:31

    WOLFSONYeah, I was just going to say that I think that the caller also, however, made another important point, which is that he and his partner made a decision about how they wanted to live their lives based on their views. And the law allowed them to make that decision. Whereas what gay people are experiencing in still far too many states, 33, is that they don't have the same freedom that the caller has to make the decision that works for them and their commitment.

  • 10:52:58

    FEINYes. I would agree with that observation. But I think the larger issue was if you don't have the state involved at all then everyone's treated the same whether you're gay or otherwise because no one has the official sanction of marriage, and that whatever symbolic weight that carries. And I think that was what the caller was suggesting might be the preferable way. And that would sort of moot the issue that you're involved in because then no one would have marriage. We'd all be treated equally in that context.

  • 10:53:21


  • 10:53:22

    WOLFSONYeah, right. No, I certainly understood that that's what the caller was saying, but the -- and I understand that, but the fact of the matter is, that's not going to happen. And the reality is we live in a landscape today where the vast majority of people have the freedom to marry. And some people have been unfairly denied it, and what our society is doing is saying, that's not fair.

  • 10:53:41

    WOLFSONWe can have a separate conversation about marriage and we can have the conversation that Diane broached the beginning of the hour, whether there also ought to be other family forms that are respected under law, which I do think is true. And those are important conversations, but they're not substitutes for this conversation, which is about ending the exclusion of gay people from what does exist which is the freedom to marry.

  • 10:54:01

    REHMAll right. Here's a question from Al. He's in Indianapolis. "If someone is gay" -- Gregg Easterbrook, I'm going to direct this to you -- "if someone is gay, shouldn't they shower and get dressed in a separate locker room?" How does that work?

  • 10:54:23

    EASTERBROOKYou know, I don't think that's going to be a problem -- maybe it will for some individuals. First of all, I can assure you that an NFL locker room is not an erotic atmosphere. It's many things, but it's not that. And female reporters and women team executives have been wandering through the locker rooms and past the shower room for a generation now without problems.

  • 10:54:41

    EASTERBROOKI can tell you, with the NCAA level, the big public universities that emphasize sports, you go into the trainer's room, and the female and the male athletes, both with spectacular physiques, are walking around in towels or short shorts. And there's no sexual tension there at all. And I think the same is going to turn out to be true in the NFL. Maybe in a hundred years men and women will shower together and this will be considered normal, but in the athletic context right now, your mind is focused on that when you're in the locker room.

  • 10:55:10


  • 10:55:11

    FEINWell, and just as the last person in America likely to be drafted by the NFL, let me also say I've been in a locker room, and I've taken showers. And I think whatever may be true for a hundred years from now, what is true -- I'm sure Gregg will agree -- is that gay people are already in the locker rooms and are already showering and are already parts of the team.

  • 10:55:28

    REHMIndeed. And final email from Kathy in Alabama. She says, "I support what DOJ is doing. What about the Jim Crow laws that existed for so long in this country? I don't believe we should've allowed them to exist. Neither do I believe laws that discriminate against gay couples should exist," Bruce Fein.

  • 10:55:59

    FEINWell, again, that tries to draw, I think, an exact analogy that doesn't quite fit between the history of racial discrimination, which included a wholesale, lynchings, deprivation, the right to vote, assaults on freedom of association and denial of any ability to participate in the political realm with discrimination, which is still unjustified with regard to those who are gay. And it may not make a difference legally, but factually I don't think it's correct to say they're identical paths.

  • 10:56:30

    REHMBruce Fein, he's the author of "Constitutional Peril: The Life and Struggle (sic) for our Constitution and Democracy." Evan Wolfson is founder and president of the organization Freedom to Marry. Gregg Easterbrook is author of "The King of Sports: Football's Impact on America." Thank you all.

  • 10:56:58

    WOLFSONThank you, Diane.

  • 10:56:59

    FEINThank you.

  • 10:56:59

    EASTERBROOKThank you.

  • 10:57:00

    REHMAnd thanks for listening. I'm Diane Rehm.

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