Same-sex marriage supporters rejoice June 26 after the U.S Supreme Court hands down a ruling regarding same-sex marriage  outside the Supreme Court in Washington, D.C.

Same-sex marriage supporters rejoice June 26 after the U.S Supreme Court hands down a ruling regarding same-sex marriage outside the Supreme Court in Washington, D.C.

Friday’s landmark Supreme Court decision to legalize same-sex marriage has already been called one of the most significant rulings of our time. People around the world celebrated. Over the weekend, rainbow flags flooded social media sites and gay pride events in the U.S. and abroad; rainbow-colored lights illuminated the White House. But while the majority of Americans support same-sex marriage, many still believe it was not the Supreme Court’s role to decide its legality — instead, they argue, it should have been left to the states. We look at the decision, what it means for individuals and the country, and what battles lie ahead.

Guests

  • Norman Ornstein Resident scholar, American Enterprise Institute; co-author of "It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism."
  • Stuart Taylor Author and journalist; nonresident senior fellow, The Brookings Institution; co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It."
  • Nan Hunter Professor of law, Georgetown University Law Center; distinguished scholar at the Williams Institute at UCLA; contributor to The Nation magazine.
  • Jeffrey Rosen President and CEO, The National Constitution Center; professor, George Washington University Law School; legal affairs editor, The New Republic; author of "The Supreme Court: The Personalities and Rivalries that Defined America" and co-editor, "Constitution 3.0."

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. It's official. Gay and lesbian couples in all 50 states have a constitutional right to marry. The Supreme Court's historic ruling on Friday lead to celebrations in the U.S. and abroad, but not everyone sees it as a great civil rights victory and even among supporters, some worry that by the court deciding rather than the states, the ruling will prove to be culturally divisive.

  • 10:07:27

    MS. DIANE REHMHere in the studio to talk about the 5-4 decision and its impact, Norman Ornstein of the American Enterprise Institute, Nan Hunter of the Georgetown University Law Center, Stuart Taylor of the Brookings Institution and joining us from Colorado, Jeffrey Rosen of The National Constitution Center.

  • 10:07:50

    MS. DIANE REHMI hope you will, as well, join the discussion. Give us a call at 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook or Twitter. And it's good to have you all with us.

  • 10:08:09

    MR. NORMAN ORNSTEINGood to be with you, Diane.

  • 10:08:10

    MS. NAN HUNTERYes, thank you.

  • 10:08:11

    MR. STUART TAYLORGood morning, Diane.

  • 10:08:12

    REHMGood to see you all. Pardon me. Jeffrey Rosen, give us an overview of what the court said.

  • 10:08:22

    MR. JEFFREY ROSENJustice Kennedy's opinion for five members of the court said that the 14th Amendment requires a state to license a marriage between two people of the same sex and it is a soaring opinion, self-consciously written for history. Justice Kennedy reviews the history of marriage and talks about its increasingly expansive quality.

  • 10:08:43

    MR. JEFFREY ROSENIn something that must've come from Justice Ginsberg, he notes that in the '70s, old prohibitions on women being the property of their husbands were abandoned and he talks about this increasingly inclusive conception which is covered both by the liberty clause of the constitution and also by the equal protection clause. Both of these, he says, reinforce each other.

  • 10:09:04

    MR. JEFFREY ROSENHe denies the idea that this will lead to multiple marriages and says that the central meaning of marriage is between two people and ends with some truly soaring inspiring rhetoric about how marriage can confer dignity, can prevent people from being alone and can be the most profound moment of someone's life.

  • 10:09:22

    MR. JEFFREY ROSENThere are remarkable dissents by Chief Justice John Roberts and Justice Antonin Scalia, Clarence Thomas and Samuel Alito. What's so striking about all of them is their emphasis on democracy. Chief Justice Roberts writes the most fiery dissent of his career. He says that the court's five lawyers have second-guessed the democratic process. He says he doesn't begrudge the celebrations that will follow the decisions, but that it's based not in the constitution, but in policy.

  • 10:09:50

    MR. JEFFREY ROSENAnd although this vision is very consistent with the notion of bipartisan restraint that he embraced in upholding the Affordable Care Act, it is absolutely shared by the other dissenters who say that the court has just made up this right of marriage. What a remarkable, historic and interesting decision.

  • 10:10:07

    REHMNan Hunter, would you like to add to that?

  • 10:10:11

    HUNTERI think what Jeffrey says is absolutely correct. I think that if one tries to step back a bit and think about how we got to this place, I think the great achievement of the LGBT rights movement and those advocates has been to shift public thinking from the -- about gay marriage from the category of gay to the category of marriage.

  • 10:10:37

    HUNTERAnd if you think about same-sex couples marrying as being one type of marriage, covenant marriage, same-sex marriage, teenage marriage, I mean, you might agree or disagree or think any of those is good or bad social policy, but they're all variants of the same animal. And that's really where the difference between the majority and the Chief Justice, at least, lands.

  • 10:11:07

    HUNTERBecause the Chief Justice is -- he writes an opinion that I find very, very interesting. I mean, he advocates very strongly for having this issue decided by legislative majorities, but he hints that if he were a member of a legislature, he would strongly consider voting in favor of same-sex marriage. It doesn't say he would, but he said he would seriously consider it and he also hints that under an equal protection analysis, he would -- he quite possibly would be in favor of something like what we used to see as civil union solutions.

  • 10:11:48

    HUNTERThat is, for granting all the material benefits of marriage to same-sex couples. But when you get right down to it, the chief says, yes, I agree that marriage is a fundamental right. I even agree that unenumerated fundamental rights are appropriate for this court to protect, but we should be very careful about protecting them and in this case, we should not.

  • 10:12:17

    HUNTERSo in my view, although most people see the issue of same-sex marriage as leading to either a green light or a red light, I actually think that both Justice Kennedy and Chief Justice Roberts see it as a yellow light, but they disagree about, in that final moment before you decide whether to cross, whether this is an example of a time that one should cross or this is an example of a time to stand back.

  • 10:12:51

    REHMNorm Ornstein, how do you see it?

  • 10:12:54

    ORNSTEINWell, there a couple of things I would add to it. One is I certainly agree with Jeff that the opinion was eloquent and I found it slightly surprising in this sense. Justice Kennedy's opinion in Citizen's United I found to be almost incoherent. This was a very different kind of opinion and it was really built on both the notions of marriage and what marriage can confer and went against this idea that if there's same-sex marriage, traditional marriages would fall apart, but also built on basic human dignity.

  • 10:13:30

    ORNSTEINAnd I found so striking the four dissents. Roberts was really based on constitutional grounds and as Nan said, he made it fairly clear that he was not really hostile to same-sex marriage. There's little doubt in my mind that if the other three dissenters were in legislatures, they would vote no. And there's a hostility there. Scalia was contemptuous of the majority and of the Chief in a fashion that was itself quite striking.

  • 10:13:58

    ORNSTEINAnd also, I found a bit amusing because Scalia was basically saying, this is judicial activism and it's terrible and we shouldn't be doing this. And I thought, this terrible judicial activism now that I'm losing after Bush v. Gore, which may be the sine qua non of judicial activism and Citizen's United. It's a little strange. But also, let me just note that Justice Thomas talked about dignity in a different way.

  • 10:14:25

    ORNSTEINHe said dignity is innate and he went back to the Declaration of Independence and he talked about how there's dignity in people in internment camps. And I thought, yes, but, of course, what happened with the Declaration of Independence was people weren't saying, we have our innate dignity so we can suffer under the oppression of the British or leave them in the internment camps.

  • 10:14:46

    ORNSTEINThe whole idea was if you have an innate dignity and it is being oppressed by others, you do something to deal with it. So I found the dissents really interesting, but not terribly persuasive.

  • 10:14:58

    REHMStuart Taylor, you're a supporter of same-sex marriage, but you have some real concerns about the ruling.

  • 10:15:07

    TAYLORYes. Now, those are three hard acts to follow so I'll emphasize the concerns, but I should start by saying I rejoice for all the gay people who are celebrating. I think Chief Justice Roberts does, too. Further, I think the majority opinion is right on balance. I think the court did the right thing. But it comes with a cost and I have misgivings because of the costs.

  • 10:15:31

    TAYLORAnd the large cost is enlarging the space in American governance where five unelected judges can do whatever they want and shrinking the space for the democratic process, for legislatures, for voters. And Roberts goes on about that at length and I think effectively. And I think one point he makes is this trend, which is longstanding and this is just the latest extension of it, towards judicial supremacy in all walks of life could play out in ways that will disappoint liberals as well as conservatives.

  • 10:16:07

    TAYLORYou get a Republican puts a couple of people on the Supreme Court, let's say. You get a strong majority. It's not hard to imagine Republicans saying, well, we can play this game, too, and we have some things that we think are important liberties, that's the word that Kennedy keeps stressing, of the American people that we decided to protect.

  • 10:16:27

    TAYLORAnd I think that's troublesome and I think that's troublesome and I think it's not great for democracy. But bottom line, on balance, I celebrate it.

  • 10:16:35

    REHMSo people are comparing this decision, this very broad decision, to Roe v. Wade. Do you agree with that?

  • 10:16:50

    TAYLORWell, it has this in common with Roe versus Wade. It's a huge social change that's being implemented by the judiciary. I think it won't lead to as much division as Roe versus Wade did because frankly I think, you know, there are a lot of people who think abortion is murder and those people aren't going to give up their point of view easily.

  • 10:17:13

    TAYLORI think, you know, the objection to gay marriage is of a lesser order of magnitude, even for those who are sincerely and religiously hostile to it. But I think it could lead to some division and I think it's another step -- for example, I think assisted suicide's next. Maybe it should be. The Supreme Court, more or less, overruled today a unanimous decision in 1997, Washington versus Glucksberg, that there's no constitutional right to assisted suicide. That's on its way out, I predict.

  • 10:17:41

    REHMStuart Taylor, he is with the Brookings Institution and co-author of "Mismatch: How Affirmative Action Hurt Students It's Intended To Help." Short break, we'll be right back.

  • 10:20:02

    REHMAnd as we speak, the Supreme Court has just come down with a ruling allowing lethal injection for those who have been sentenced to death. And, Stuart, there's another decision regarding aid in dying. Spell that out for us.

  • 10:20:32

    TAYLORYes. It was discussed in the opinions in this case. And Kennedy mentioned it and said, "Well, in 1997, by, I think it was 9-0, in a case called Washington versus Glucksberg, we denied that there was a right to aid in dying. And we're not necessarily changing that." But Roberts and others in their dissent said, "Oh, yes you are." Because that decision depended on history and tradition heavily. That when we create -- when we recognize new rights under the Constitution, they have to be rooted in our history and tradition. And I think it's harder to make that case in the case of aid in dying.

  • 10:21:06

    TAYLORIt -- in the end, it'll come down to whether Justice Kennedy decides he wants there to be a right to aid in dying or not. So basically, you know, instead of being decided by the Democratic process, ultimately, this will be decided by Justice Kennedy.

  • 10:21:20

    REHMJeffrey Rosen.

  • 10:21:22

    ROSENMuch of that question, which Stuart helpfully flags, will turn on whether or not Chief Justice Roberts and the conservatives accept Justice Kennedy's premise in the Lawrence case that actions that harm yourself but don't harm others can't be banned by the Constitution. Justice Kennedy basically said that moral disapproval of a practice is not a good reason for banning it. In his remarkable dissent in the gay marriage case, Chief Justice Roberts quotes his boss, Henry Friendly -- a great, restrained judge -- for the proposition that the Constitution does not enact John Stuart Mill's harm principle.

  • 10:21:58

    ROSENThat may sound philosophical but a lot hangs on it. Because basically, unless you can ban practices because of moral disapproval, then Stuart is absolutely right, that autonomy trumps the right to assisted -- to limit assisted suicide. There's also the question of how narrowly or broadly the Court is going to interpret rights. Chief Justice Roberts said, "We said in the assisted-suicide case, you'd have to define these liberties precisely and carefully." But Justice Kennedy said, "No, we didn't talk about a right to interracial marriage or a right to prisoner marriage, in recognizing those rights. We talked, instead, about a right to marriage."

  • 10:22:33

    REHMHmm.

  • 10:22:33

    ROSENSo it may be that he will view marriage more abstractly than the right to assisted suicide and try to draw these distinctions. But I think Stuart is absolutely right that the thrust of the marriage equality decision, which exalts individual autonomy in the same way that Justice Kennedy did in affirming the heart of Roe v. Wade if carried to its logical conclusion, would certainly encompass a right of assisted suicide.

  • 10:22:55

    REHMAll right. Nan, I want to get back to you. Conservative Justice Antonin Scalia began his written dissent by saying, "I join the Chief Justice's opinion in full. I write separately to call attention to this Court's threat to American democracy." What does he mean there?

  • 10:23:24

    HUNTERWell, I think he is -- Justice Scalia takes actually a significantly different view. I mean, as my co-panelists have indicated, the conversation among the dissenters is basically as interesting as the conversation between the majority in the dissent. Justice Scalia has made quite clear, over the years, that he views the meaning of the 14th Amendment and other Constitutional provisions, as limited to how they would have applied at the time of their adoption.

  • 10:23:59

    HUNTERSo that, whereas, for example, Chief Justice Roberts says, you know, "On this liberty-, due process-, history-, tradition-focused right, I disagree with the majority. If we were to take an equal-protection approach, then, yes, I see there's an equal-protection issue here. And it may be that for material benefits, gay couples should qualify." Justice Scalia is having none of that. I mean, whether it's equal protection or due process, he is probably the Court's most vocal opponent of the concept of a living or evolving Constitution.

  • 10:24:39

    REHMHowever, what does this decision not address, Norm? What does it mean about, say, discrimination on the basis of sexual orientation? I have an email here from Jonathan in Little Rock, who says, "Does Friday's Supreme Court ruling mean Christian colleges will have to hire gay faculty or risk losing federal financial aid for students?"

  • 10:25:14

    ORNSTEINYou know, we have a -- actually to some degree, although it's been there before, it'll be there again -- a Pandora's box in many ways in a whole host of areas. And we'll see some aggressive litigation moving forward over how far rights go. Justice Alito, in his dissent, and some of the others and a lot of the commentary outside, was about how this is now a slippery slope that is going to destroy conservative churches who don't believe in same-sex marriage. It's going to take away their tax exemptions. And that moves down to other institutions that are connected to churches or where people have religious objections. So we're going to have more litigation over when you draw a line if somebody has a deep religious objection, how far that goes.

  • 10:25:58

    ORNSTEINI think the opinion tries to make it very clear that you're not going to go after churches. But the sense of victimhood now -- and in Justice Alito's dissent, it really was, we're creating a new class of victims.

  • 10:26:13

    REHMHmm.

  • 10:26:13

    ORNSTEINNever mind the rights and the dignity going to those who are going to have marriages who are from the same sex, the people who oppose it are going to be pariahs out there. And we are going to see an enormous amount of litigation. And I also ought to add, Diane, that we're also going to have some of what you could call passive resistance in states. We know, in Texas...

  • 10:26:34

    REHMWe've already seen that...

  • 10:26:36

    ORNSTEINYes.

  • 10:26:36

    REHM...in Texas and Alabama, there is some resistance. Nan.

  • 10:26:43

    HUNTERWell, I think it would be helpful to delineate some categories here. Because the impact of this decision really does depend on that. The first category -- and I think I'd like to correct some of the confusion that I heard, actually from morning news reports, even on NPR, where listeners might have concluded from some of the interviews that member of the clergy are going to have to, you know, draw a line in the sand and stand up and, you know, really risk a huge backlash if they -- or government enforcement, if they refuse to marry same-sex couples. That is simply not true.

  • 10:27:26

    ORNSTEINI can personally guarantee you that if any minister or priest or rabbi anywhere, or imam anywhere, wish -- in the United States, wishes to refuse to marry same-sex couples, the ACLU will be on the spot to defend their right to do that. That is really not a question. With another -- a second category, is employees of the state. And there you get into Alabama, Texas, North Carolina, where either statutes or attorney general opinions are starting to emerge saying, "If you're a clerk of the court and you have a religious objection, you can refuse to issue a marriage license." Well, that's a different category. This -- see, we're not talking about a clergy person. We're talking about somebody whose salary is paid by all of our tax dollars.

  • 10:28:18

    ORNSTEINAnd, in my view, if you have an objection to doing something as part of your job as a public employee, you may want to seek another job, just as if you had an objection to issuing marriage licenses for someone else. And let me just say, the third category -- and I think this is the most difficult category -- is the category of government funding. You know, will religious entities, you know, that receive government funding -- sometimes massive amounts -- will that government funding be at risk? Well, not anytime soon, I would say. But I think it's -- as the solicitor general acknowledged during oral argument, I think we're going to see those cases come up and the law will develop.

  • 10:29:13

    REHMJeffrey.

  • 10:29:15

    ROSENThose three categories are very helpful. And there's a fourth, and that involves individuals who want exemptions from antidiscrimination laws. So the wedding photographer who says that she is opposed to gay marriage on principle or the landlord who doesn't want to rent to validly married couples. Part of this is statutory interpretation -- what do the antidiscrimination laws require? But it really poses a clash between two notions of dignity that Justice Kennedy care a lot about. On the one hand, he cares about the dignity of gay couples, on the other, the dignity of corporations and their religious freedom and their ability not to have to offer the contraception mandate, for example.

  • 10:29:55

    ROSENSo here, Justice Kennedy's two impulses may clash. And we're just going to see -- this is going to be explosive for the next year as individuals and corporations seek exemptions from antidiscrimination laws against gays and lesbians on the grounds that their religious freedom is being infringed.

  • 10:30:11

    REHMStuart.

  • 10:30:11

    TAYLORAll that makes sense. And I'd add, one way this could play out -- I hope it will play out this way -- is whenever one of these situations come out, the decision makers -- whether it's a county council or a state legislature or congress, or of course justice sanity, who ultimately decides everything -- the decision makers should ask themselves, "Okay, if we grant this little -- if we grant this person's or this institution's religious exemption, how much is that going to harm the gay people, who are the beneficiary of this? If the wedding cake person -- if there's 20 wedding cake people in town and one of them won't make my wedding cake, I don't think that hurts me much. Now, if there's -- if there's nobody in the next three states who will make my wedding cake, that hurts me a lot.

  • 10:31:00

    REHMBut that's the question I want to pose. There are those, like yourself, who would argue that it would have been better to let the decision come from the states -- not to mention that probably would have taken at least 10 more years -- but how might that have changed public attitudes, if at all?

  • 10:31:29

    TAYLORWell a slight tweak in what I think. I would have voted with the majority in this case. So I wouldn't have waited 10 more years. Although I can see the case for doing it. But one thing the dissenters say that happens, if you do it democratically rather than through judicial dictate, is compromises are made. The legislature -- let's say Congress wants to have, you know, a new law banning employment discrimination against gay people, which we don't have now. And the religious objectors say, "Well what about the Evangelical Church? Should they have to hire, you know, they only hire Evangelicals for janitor jobs. Do they have to change that?

  • 10:32:05

    TAYLORAnd in a -- when the court decides these things, there's not really -- "No. Yeah, they do have to change that." Or it can be interpreted that way. If the legislature decides, then you might get a compromise in order to get the few votes to get it over the top. The people who want to protect gay rights, say, "Yeah, okay. We'll give a little of religious exemption over here.

  • 10:32:26

    REHMSo do you agree that compromise would have come from allowing the states to do their own thing?

  • 10:32:36

    ORNSTEINNot in all states. And I actually, you know, I generally yield to no one in my belief that Congress should get a lot of deference from the courts. And in a number of areas, including voting rights and campaign finance. And in the Voting Rights Act, it was a virtually unanimous decision in both Houses. The Court threw that aside and it troubled me. When it comes to individual rights, I look at it in a different way. And I really do see an analogy between racial discrimination, going back in Loving versus Virginia, and this. It is -- when you have a minority and you're talking about fundamental rights, it is very difficult to let the majority, through the democratic process, have that kind of leeway.

  • 10:33:19

    ORNSTEINThe courts have traditionally been a protector and advancer of the rights of individuals and minority groups.

  • 10:33:26

    REHMAnd advancer is a very interesting word, Norm.

  • 10:33:31

    ORNSTEINYeah. And of course, if you go back to Brown v. Board of Education, that really heralded what came later with the legislative process. And we're going to need to have a legislative process involved here. Justice Roberts said, "Well this shuts off the debate." We're going to get a movement for a Constitutional Amendment, and there will be a larger debate. Even if it's unrealistic, that debate will continue. And a lot of these nuances involving the balance of rights are going to have to be decided. And some of that will happen in the legislature.

  • 10:34:01

    REHMAnd you're listening to "The Diane Rehm Show." I want to open the phones, 800-433-8850. First, to Joshua in Pittsboro, N.C. You're on the air.

  • 10:34:21

    JOSHUAYeah. Hi. Thanks for having me on the show.

  • 10:34:22

    REHMSure.

  • 10:34:23

    JOSHUAI just wanted to comment, and it just got covered in the last few minutes, is that I think that the Supreme Court had to act in this area under the idea that justice delayed is justice denied. And it has been denied for a long time. And the state legislatures, too many of the state legislatures kept getting it wrong. A number of them, I think it's, what, 38 states have recognized the right of marriage for everyone. But too many of the states -- for instance, my own state of North Carolina -- got it wrong with amendment one. And when that happens, the Supreme Court does have to act.

  • 10:34:56

    REHMNan.

  • 10:34:58

    HUNTERWell, I think that -- I agree with the caller. And actually, just coincidentally, I also am a native of North Carolina. But -- so it's a state that I watch with a particular attention. And I think that one way to think about why the Court was justified in acting in this particular instance is to think of it as a tipping point -- a tipping point in two ways. Public opinion has been rapidly changing. And you may say, "Well, opinion polls are not a basis for legal conclusions and interpretations of the Constitution." And that's true. But it signals something to the Court in terms of how social meanings do evolve. And the other tipping point is institutional.

  • 10:35:46

    ORNSTEINThe Court doesn't just look at public-opinion polls. It is inevitably influenced -- as I think it was, for example, in Brown versus Board -- by the actions of the executive branch -- I think President Truman's integration of the Armed Forces was enormously important in that process -- and by the actions of Congress. And I think Congress' action in ending the Don't Ask, Don't Tell Regime was enormously important here. And so the Court is sensitive. And I think, in the area of human rights and liberties, it should be.

  • 10:36:20

    REHMStuart.

  • 10:36:21

    TAYLORAn analogy, a rough one, just occurred to me. I agree with all that's been said. But I think there are costs. And there are new questions. So, for example, there are millions of undocumented immigrants living in the United States -- many millions. And they came here, most of them, to work, to have a better life, to -- maybe to be with their loved ones. And, of course, we have immigration laws that say they can't come and that say that we should deport them. Now those are being argued, but why -- why is -- why wouldn't Justice Kennedy say that there's an absolute right for anybody who wants to come to the United States to come and stay?

  • 10:36:54

    REHMJeffrey.

  • 10:36:56

    ROSENThe idea that justice delayed is justice denied was central to Justice Kennedy's opinion. He notes that the Court, in 1986, upheld laws restricting same-sex intimacy. And he said, "Bowers," which was the name of the case, "upheld state actions that denied gays and lesbians the fundamental right." Though it was eventually repudiated, men and women suffered pain and humiliation in the interim. And the effects of these injuries, no doubt, lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect. It's so interesting because the Court here faced the analogy of Loving versus Virginia, Brown versus Board of Education was decided, but here it was decided justice delayed would be justice denied and (word?) had come.

  • 10:37:35

    REHMAll right. Short break. More of your calls when we come back. Stay with us.

  • 10:40:01

    REHMAnd during this hour, we've had three significant decisions from the Supreme Court. Lethal injection, upholding the use of midazolam, aid in dying. And what was that decision, Stuart, how -- what was the count there?

  • 10:40:28

    TAYLORWell, now, aid in dying, I don't think we had an aid in dying decision today.

  • 10:40:31

    REHMYou said assisted suicide.

  • 10:40:34

    TAYLORNo, I was looking way down the road at decisions that might come years.

  • 10:40:36

    REHMOh, forgive me. Oh, I see.

  • 10:40:39

    TAYLORA year or two or six.

  • 10:40:40

    REHMOkay.

  • 10:40:40

    TAYLORI apologize. There was, there were two very important decisions, in addition to the one you just mentioned.

  • 10:40:46

    REHMRedistricting.

  • 10:40:46

    TAYLORYeah. And Norm's the expert on that. But I'll just say quickly, it's a question whether to get away from the gerrymandering that we all know and love, by legislatures, the voters of the state can hand that over to a commission, which hopefully will do districts that aren’t so polarized.

  • 10:41:03

    REHMRight. Okay. And the third.

  • 10:41:07

    TAYLORNo, those are the two big ones, and then we had a granting of (unintelligible) in the affirmative action case that we talked about earlier. What's so interesting to me, Diane, I mean, these particular decisions are interesting, and the critical tough ones, with the exception of the Affordable Care Act, which was six to three, the others are five to four. Justice Kennedy is almost always that swing vote and some are on a liberal direction. Some are on a conservative direction.

  • 10:41:35

    TAYLORThe lethal injection one was a particularly heated debate and we had to wait for the redistricting decision because we had two dissents read from the bench. It's rare that you get two read from the bench. And then there was interplay on the second dissent read from the bench read by Justice Bryer. Apparently, Justice Scalia stepped in. And Justice Bryer said that this drug, which causes this burning sensation, and we know from the reports, could take hours and said that it's equivalent to burning at the stake.

  • 10:42:03

    TAYLORIt's a question of cruel and unusual punishment. So, you've got very passionate dissents there. The redistricting case, you know, we haven't been able to read anything yet. I just was able to get a quick glance at the opinion, was 5-4, a decision done by Justice Ginsberg. The oral arguments, I was at the oral argument, you wouldn't have predicted that they would have simply upheld the Arizona Commission. Because it was a deep discussion over what the clause in the Constitution that says that time, manner and place of elections will be decided by the legislature in each state.

  • 10:42:32

    TAYLORWhat does the legislature mean? Can it include a commission done by a referendum? Now they've upheld that on a 5-4 vote and there were strong dissents apparently on the other side. So, we've got a court that is showing some real divisions and some personal, almost assaults on the other justices.

  • 10:42:54

    REHMJeffrey.

  • 10:42:55

    ROSENThis Arizona decision is absolutely fascinating. Just reading the headnotes, this is a core debate about the meaning of democracy. Justice Ginsberg says that the election clause of the Constitution doubly empowers the people. It allows either legislatures or initiative processes to structure state elections. Arizona voters sought to restore the core principle of Republican government, that voters should choose their representatives, not the other way around. Norm is right that this is a fierce debate.

  • 10:43:21

    ROSENChief Justice Roberts responds by saying that the 17th Amendment, which allowed people rather than the Senate to choose their state legislatures to choose senators, resulted from an arduous, decade long campaign in which reformers across the country worked to garner approval from Congress and three quarters of the state. What chumps! Says Chief Justice Roberts. There's a real sense, once again, from the Chief, that the majority, with Justice Kennedy essentially among them, is here short circuiting the text of the Constitution.

  • 10:43:50

    ROSENInteresting to reconcile just Chief Justice Roberts' textualism in this Arizona case with his purposivism in the Affordable Care Act case.

  • 10:43:57

    REHMExactly.

  • 10:43:57

    ROSENWhere he seems more willing to look at the broader purposes of the act itself.

  • 10:44:02

    REHMAll right, let's go back to the phone in Sloan in Reston, Virginia. You're on the air.

  • 10:44:10

    SLOANThank you so much, Diane. I'm so moved by this decision. My husband and I have been together for more than 21 years, so I'm really grateful the court has found marriage as a fundamental right for everyone. So, this is a victory for both equal rights and religious liberty. The very important here, churches do not have to marry gay couples. The court makes very clear that churches and pastors will not have to perform any marriage that is not in keeping with their faith.

  • 10:44:36

    SLOANSome churches support equality and some do not, and that is their right. But here's the important point. Just like no church has to perform a Jewish marriage, or an interfaith marriage, likewise, no church has to marry a same sex couple if it doesn't wish to. So, religious liberty is fully protected for marriage equality opponents as well as supporters. We still have to pass a law to protect from other forms of discrimination. Jobs, housing, things like that. But this is a huge victory for America. And I'm just so grateful.

  • 10:45:06

    REHMAll right, sir, thanks for your call. And now to Christopher in Fort Worth, Texas. You're on the air.

  • 10:45:15

    CHRISTOPHERHi Diane. Thanks for having me on.

  • 10:45:17

    REHMSure.

  • 10:45:18

    CHRISTOPHERGreat discussion this morning. It's very interesting. I can't help but notice the similarity between the Supreme Court's ruling on gay marriage and the Civil Rights Act in the 1960s. Particularly talking about the abolition of slavery, which was, at the time, you know, 196, or 1865, excuse me, was a very controversial thing and kind of split the states, north and south. Or at least what we would call today conservatives and liberals. So, I guess my question for the guests is to what extent do you think or to any extent do you think that the social fallout, or the ramifications of this will be similar to sort of the Jim Crow laws, I guess, that we had and some of the discrimination that we see, even today between blacks and whites.

  • 10:46:08

    CHRISTOPHERAnd do you think there will be a similar fallout between conservatives and liberals in that manner? Thank you.

  • 10:46:17

    REHMStuart.

  • 10:46:18

    TAYLORWell, I think that on gay marriage, the battle is over and gay marriage has won, in terms of what's going to happen on a big scale. There will be religious objections, there will skirmishes over which one should be granted and which one shouldn't and sorted all that out very well. There will also be a lingering bitterness among the religious opponents of gay marriage who think they're getting left out. I don't know that, and that's, you know, unfortunate for them. I don't know that it's going to have a large impact on the country, except it may well increase the polarization, the political polarization, the ideological polarization of the population. Which is already pretty extreme.

  • 10:46:59

    REHMNan.

  • 10:47:00

    HUNTERI think that -- I agree with that. I think that we've seen an incredibly rapid shift in public opinion, but it's been uneven. Geographically uneven, and uneven by certain social groups. But I think, fundamentally, see the same demographic divide among evangelicals, among southerners, as we see across the nation, which is that younger persons tend to be far more open to same-sex marriage.

  • 10:47:28

    REHMWhat would happen in a Governor, say, of Texas or Alabama or Georgia, said, we're not going to comply. The Supreme Court is making the law rather than following it. Norm.

  • 10:47:47

    ORNSTEINThe Governor of Alabama is not like the Governor of Texas, at this point. The Chief Justice of the Alabama Supreme Court is a very different character. And there, I think you're going to see some resistance and the Governor of Texas is going to join with his Attorney General. But I think it's fairly futile in this case. This is not like the reconstruction era in the same fashion. But I think in a larger point, look at this week. We've had all the events down in Charleston. We had the Confederate flag coming down.

  • 10:48:18

    ORNSTEINBut what we have is, especially the South, which is such a distinct region and always has been, and now is a driving force of the Republican Party. But we have a group of people who see themselves moving steadily into the minority. In the minority, because we're moving towards a majority/minority population. And the group that has been the dominant force, white people in America, are starting to lose traction. And you've got people who believe that their traditional values are under assault.

  • 10:48:46

    ORNSTEINAnd they're in big trouble. And that includes the Confederate flag for many, as it does losing on this issue. It's gonna create some real divisions, and, of course, you mentioned earlier, Diane, before we went on the air, the black churches burned. We're gonna have, I think, some incidents, that are gonna be some pretty ugly incidents before we're done with this. That's what happens with significant social change, but it's a dangerous time, because of the partisan tribalism, as well.

  • 10:49:14

    REHMWe have another ruling from the Supreme Court overturning the Obama administration's landmark Air Quality Rule. The court ruled the EPA did not properly consider the costs of the regulation. It was a 5-4 ruling, where they said the EPA should have taken into account the cost to utilities and others in the power sector before even deciding whether to set limits for the toxic air pollutants it regulated in 2011. Jeffrey.

  • 10:50:01

    ROSENYes, this is part of a big debate, which is bubbling under the surface about how much the court should defer to administrative agencies. That question was at the heart of the Affordable Care Act case. This decision is written by Justice Scalia, who is not especially inclined to defer to agencies when he thinks that the text is clear. In the Affordable Care Act Case, Chief Justice Roberts pointedly refused to find that the text was ambiguous, precisely because he didn't want to defer to the Internal Revenue Service.

  • 10:50:30

    ROSENSo basically, there's a big battle here about whether this Supreme Court is going to defer to the Obama Administration's agency rulings, whether it's the EPA or the IRS. And in this case, Justice Kennedy, taking the position opposite to one he'd taken in an earlier EPA case is joining the conservatives, refusing to defer over a vigorous dissent from the liberals.

  • 10:50:52

    REHMAll right. To Bruce in Syracuse, New York. You're on the air.

  • 10:50:57

    BRUCEHi, thank you very much for taking my call.

  • 10:50:59

    REHMSure.

  • 10:51:01

    BRUCEI just had a couple of points that I wanted to make before I ask the panel for an opinion question. And this goes back to the issue of marriage equality. The first of these is that I wanted to state really strongly people keep talking about same-sex marriage or gay marriage, and the issue that the court decided was actually marriage equality. And I think to use a term like same-sex or gay marriage actually further politicizes this particular issue. Marriage equality is I believe a more neutral term.

  • 10:51:29

    BRUCEI also wanted to point out that while we frequently over the discussion, focuses on the idea that evangelicals or Christians might be harmed by this decision. The reality is that Evangelicals, Christians, Buddhists, Muslims and so forth all have gay and lesbian members within their groups. These are not non-overlapping categories.

  • 10:51:55

    REHMAll right.

  • 10:51:56

    BRUCESo, when an Evangelical group is actually discriminating against a gay or lesbian person who is Evangelical, they are in a position of ignoring their own co-religionist.

  • 10:52:07

    REHMAnd your question.

  • 10:52:08

    BRUCEAnd my question is, I'd like to know what the panel sees as -- you raised this a little bit earlier, we have a number of politicians, governors and Mike Huckabee, for example. Presidential candidates who maintain that they would ignore the Supreme Court decision. And how this relates to the balance of powers issue within the Constitution.

  • 10:52:27

    REHMAll right. Stuart.

  • 10:52:29

    TAYLORWell, I think if they took office, they wouldn't ignore the decision if they became President. I'm not sure exactly what they've been saying, but no President in a very long time has ever defied the Supreme Court. And by the way, the last time a Governor did so in 1957, President Eisenhower sent the National Guard down there.

  • 10:52:46

    REHMI thought it was interesting that Senator Lindsay Graham and some other lawmakers want a change in the official GOP position, which supports a Constitutional amendment to define marriage as between one man and one woman. He told Chuck Todd on Meet the Press if the Republican Party doesn't change that official position, it's going to hurt the GOP in 2016. Nan.

  • 10:53:24

    HUNTERThanks, Diane. The -- I think what he's calling for would lead to really an internal Republican bloodbath. The Republican Party, they can put this in their framework documents, it doesn't seem that many people pay much attention to those documents anymore. And maybe that would be a, you know, a gesture toward the social conservative right. But if they really make a point of it, if they really try to make it a litmus test inside the party, then, you know, it's going to be -- I mean, it won't terminate the Republican Party, but it will consume it in a very negative way.

  • 10:54:08

    REHMAnd you're listening to The Diane Rehm Show. Even Florida, former Governor Jeb Bush said that Republicans should abandon that 2012 position. Norm.

  • 10:54:23

    ORNSTEINYes, but Bobby Jindal said let's abolish the Supreme Court and Mike Huckabee said, we should move the Supreme Court to retention elections, as if judicial elections aren't an abomination enough. And with all of these five to four decisions, too, Diane, I think it underscores that this next Presidential election -- what may be a critical issue, what ought to be, perhaps, the critical issue, is the Supreme Court itself. Because we're likely to have some vacancies in the next Presidential term. There could be three, there could be more. We have several justices in their 70s and 80s.

  • 10:55:00

    ORNSTEINAnd the makeup of the Court itself, is at stake. You'll move from 5-4, potentially, to 6-3 or 7-2, one way or the other. And whoever is the President is going to have an enormous impact on these decisions. And look at how many of these critical decisions are 5-4. They're not all going in one direction right now. And look how heated they are. So, the ice, in a way, may be broken, one way or the other, with this Presidential contest ahead.

  • 10:55:28

    REHMNan Hunter, do you agree?

  • 10:55:29

    HUNTERI do agree. I mean, I think what we're looking at is quite possibly electing a President in 2016 who will have multiple opportunities to make appointments to the Supreme Court. And Norm is absolutely right. There are a lot of 5-4 decisions, and they cut in different directions. So, you know, we've been building over time, the Supreme Court nomination process has become more and more, not only politicized, but partisan. And there's a lot of loss in that process. But I think it's going to get more intense before it gets less intense.

  • 10:56:07

    REHMStuart.

  • 10:56:08

    TAYLORI agree. I think this will be a bigger issue than ever before. Maybe since the Dred Scott, in terms of the next President's gonna choose our lawmakers, which is the Supreme Court. And, of course, they're very closely balanced. And it's not hard to imagine what would happen if the conservatives gained a march, undoing some of this stuff. But liberals could change the country around quite a bit too, if they get a majority.

  • 10:56:31

    REHMJeffrey, last quick comment.

  • 10:56:33

    ROSENIt is interesting that the calls for curbing the court have come from Senator Cruz, Huckabee from the Republican candidates, even though many of the decisions are also favoring conservatives. In the progressive era, it was liberals who wanted to curb the courts, now it is conservatives.

  • 10:56:49

    REHMJeffrey Rosen of the National Constitution Center. Stuart Taylor of the Brookings Institution. Nan Hunter, Professor of Law at Georgetown University Law Center. And Norman Ornstein of the American Enterprise Institute. Nan, I apologize for calling you by the wrong last name.

  • 10:57:16

    TAYLORI love Nan Aaron.

  • 10:57:17

    REHMThank you all for being with us.

  • 10:57:19

    TAYLORThanks, Diane.

  • 10:57:19

    HUNTERThanks, Diane.

  • 10:57:20

    REHMAnd thanks for listening. I'm Diane Rehm.

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