Welcome to the Liberty Insider.
00:00:23.33\00:00:25.15
This is a program
bringing you news, analysis
00:00:25.18\00:00:27.89
and up-to-date information
on religious liberty events
00:00:27.92\00:00:30.87
in the United States
and around the world.
00:00:30.90\00:00:33.23
My name is Lincoln Steed,
editor of Liberty Magazine.
00:00:33.26\00:00:36.82
And my guest on the program
is Attorney Allen Reinach,
00:00:36.85\00:00:39.86
Executive Director of
the Church State Council.
00:00:39.89\00:00:42.24
Always glad to be with you.
00:00:42.27\00:00:43.48
And past guest and
we often work together
00:00:43.51\00:00:45.66
and I know some of
what you are going to say,
00:00:45.69\00:00:48.69
but our viewers
don't, so let's get into it.
00:00:48.72\00:00:50.73
And we are good
friends besides. Absolutely.
00:00:50.76\00:00:54.59
We might test it
today on this program.
00:00:54.62\00:00:58.21
No, but, you know, we
have slightly different takes
00:00:58.24\00:01:00.83
on a very important topic.
00:01:00.86\00:01:02.48
Sure.
00:01:02.51\00:01:03.54
Not really takes on
it but tactics, perhaps.
00:01:03.57\00:01:07.84
I think most people even those
00:01:07.87\00:01:09.42
who don't follow
religious liberty closely,
00:01:09.45\00:01:11.29
they don't listen
to the news too much.
00:01:11.32\00:01:13.38
Noticed fairly recently,
00:01:13.41\00:01:15.10
when the
Supreme Court brought in
00:01:15.13\00:01:17.16
at the same time
decisions on two--
00:01:17.19\00:01:19.99
I would say landmark cases
that relate to gay marriage.
00:01:20.02\00:01:24.28
That was the Defense of
Marriage Act repudiation.
00:01:24.31\00:01:27.57
Otherwise known as DOMA. DOMA.
00:01:27.60\00:01:29.63
And then one with a
really knock back a case,
00:01:29.66\00:01:32.61
but the
implications that are quite--
00:01:32.64\00:01:34.75
Involving
California's Proposition 8.
00:01:34.78\00:01:36.74
They denied
standing really to those
00:01:36.77\00:01:39.54
that have brought in
Proposition 8 in California,
00:01:39.57\00:01:41.69
which was a proposition design
00:01:41.72\00:01:44.79
to head off gay
marriage in California.
00:01:44.82\00:01:47.62
So you know, there
has been a lot of concern
00:01:47.65\00:01:50.80
about the future
of religious freedom
00:01:50.83\00:01:53.43
in light of these cases
00:01:53.46\00:01:54.95
and what impact it
will have on the churches.
00:01:54.98\00:01:58.07
And so I think it's well for us
00:01:58.10\00:02:00.02
to take some time
to talk about them.
00:02:00.05\00:02:03.22
But first I
thought it would be good
00:02:03.25\00:02:05.72
just to give some synopsis of
00:02:05.75\00:02:08.27
what the court
actually said and did, okay.
00:02:08.30\00:02:12.13
So the DOMA case
you have back in 1995,
00:02:12.16\00:02:16.27
Congress passes an act to define
the scope of federal benefits
00:02:16.30\00:02:22.10
and how the
federal government treats
00:02:22.13\00:02:25.52
marriage for all
kinds of purposes.
00:02:25.55\00:02:28.60
Everything from immigration,
to tax code, you name it.
00:02:28.63\00:02:32.60
This was under-- Under Clinton.
00:02:32.63\00:02:34.88
Clinton signs into law
the Defense of Marriage Act
00:02:34.91\00:02:38.23
that does something
that was very unremarkable.
00:02:38.26\00:02:41.48
It says marriage
is a man and woman,
00:02:41.51\00:02:43.58
which it has always
been throughout history,
00:02:43.61\00:02:46.38
throughout all civilizations,
00:02:46.41\00:02:48.31
it's not limited to
any particular religion.
00:02:48.34\00:02:51.66
Marriages are man and a woman.
00:02:51.69\00:02:53.76
The Supreme Court,
hears a case involving a woman
00:02:53.79\00:02:57.47
who was married in
Canada, resident in New York,
00:02:57.50\00:03:00.94
her spouse dies and she
subjected to a state taxation
00:03:00.97\00:03:07.31
as though she were not married,
00:03:07.34\00:03:09.06
because her marriage is not
recognized under federal law.
00:03:09.09\00:03:12.86
And she sues for,
you know, to be treated
00:03:12.89\00:03:16.87
to the state tax
benefit of marriage
00:03:16.90\00:03:20.02
and the court
rules in her favor,
00:03:20.05\00:03:22.10
but it's
interesting how it did so.
00:03:22.13\00:03:25.33
It essentially said two things.
00:03:25.36\00:03:27.89
Number one, that marriage is
00:03:27.92\00:03:30.49
first and foremost the
province of the states.
00:03:30.52\00:03:33.29
It's a function of state law
00:03:33.32\00:03:35.31
and the federal
government had no business
00:03:35.34\00:03:38.13
getting into it in a
first place which is false,
00:03:38.16\00:03:41.39
because all of
federal government was doing
00:03:41.42\00:03:43.82
was defining how
it's gonna regard marriage
00:03:43.85\00:03:47.22
for purposes of its own program.
00:03:47.25\00:03:49.32
Yeah, I mean, it's
true on most things
00:03:49.35\00:03:51.70
except interstate commerce
and other national issues,
00:03:51.73\00:03:56.52
the federal government really
has to leave to state providence
00:03:56.55\00:03:59.44
even after the Civil War
which change that dynamically.
00:03:59.47\00:04:02.18
But the second thing
that the court did was
00:04:02.21\00:04:04.54
it justified its
decision by criticizing
00:04:04.57\00:04:07.58
both Congress and the president
00:04:07.61\00:04:09.99
and accusing them
essentially of bigotry
00:04:10.02\00:04:13.69
and saying there
was no reason for them
00:04:13.72\00:04:16.97
to do this other than bigotry.
00:04:17.00\00:04:19.06
Well, that kind of insult
00:04:19.09\00:04:21.03
to your co-equal
branches of government,
00:04:21.06\00:04:23.72
this is really unprecedented
00:04:23.75\00:04:25.79
to say that, that
Congress was motivated purely
00:04:25.82\00:04:29.91
by bigotry towards gays.
00:04:29.94\00:04:34.54
Which, you know,
there were no facts
00:04:34.57\00:04:38.12
that were presented it was--
00:04:38.15\00:04:39.86
It was DOMA, but don't you
think what was clearly at play
00:04:39.89\00:04:44.25
was then under the
Bush administration
00:04:44.28\00:04:46.76
they attempted to
pass the marriage amendment
00:04:46.79\00:04:50.16
or they intended to pass
00:04:50.19\00:04:51.41
the marriage
amendment to the constitution
00:04:51.44\00:04:53.76
which would
lock the door forever
00:04:53.79\00:04:57.26
and enforce in
essence heterosexual marriage.
00:04:57.29\00:05:01.01
So it was, there
was a sentiment at play,
00:05:01.04\00:05:04.05
even if it wasn't
written into to DOMA
00:05:04.08\00:05:07.57
to formalize through government
really not just a civil,
00:05:07.60\00:05:13.81
but a religious
viewpoint on marriage
00:05:13.84\00:05:16.25
to head off a developing gay--
00:05:16.28\00:05:18.73
Well, where you and
I disagree is that--
00:05:18.76\00:05:23.40
Neither one of us
is pro-gay per se--
00:05:23.43\00:05:24.88
That the commitment to
marriage is a man and a woman
00:05:24.91\00:05:28.53
is primarily or exclusively
a religious sentiment.
00:05:28.56\00:05:31.73
Absolutely. It
shouldn't be under the state.
00:05:31.76\00:05:34.44
Well, no, I'm saying
it's not based on religion.
00:05:34.47\00:05:38.36
Marriage is a man and a woman
00:05:38.39\00:05:39.64
is a matter of historical fact
00:05:39.67\00:05:41.74
throughout every civilization
regardless of religion.
00:05:41.77\00:05:45.39
So it's not to say
that it's religious.
00:05:45.42\00:05:48.04
I wrote an editorial recently
00:05:48.07\00:05:49.59
where I pointed out
what we're getting into now,
00:05:49.62\00:05:52.00
but I have not yet
heard any discussion
00:05:52.03\00:05:55.43
about the cultural
and social implications
00:05:55.46\00:05:59.47
of this massive shift in how
our society is saying marriage.
00:05:59.50\00:06:03.12
It's unprecedented,
because as you say
00:06:03.15\00:06:07.87
every society even those
that were fairly indulgent
00:06:07.90\00:06:11.92
to at the moral arrangement,
and famously Greece and Rome
00:06:11.95\00:06:16.21
but they never
formally put the state
00:06:16.24\00:06:19.46
and the society
behind such abrasions,
00:06:19.49\00:06:21.98
they just endorsed it,
00:06:22.01\00:06:23.57
but now we are trying
to make it a social norm.
00:06:23.60\00:06:26.91
Well, and the implications are--
00:06:26.94\00:06:28.37
But that's not a religious
thing per se-- All right.
00:06:28.40\00:06:30.63
But I don't like
the idea which is abroad
00:06:30.66\00:06:34.07
and as you know
in other programs
00:06:34.10\00:06:35.68
We've spoken about
it from other angles.
00:06:35.71\00:06:37.23
The idea of
certain religious factions
00:06:37.26\00:06:40.12
that to uphold
their religious viewpoint
00:06:40.15\00:06:42.13
we will use the
state, in this case a law
00:06:42.16\00:06:46.08
that they intended on
the marriage amendment
00:06:46.11\00:06:50.57
to an essence formalize
00:06:50.60\00:06:52.88
our religious
viewpoint on marriage.
00:06:52.91\00:06:55.07
Well, see I disagree that laws
00:06:55.10\00:06:57.80
that address
marriage is a man and woman
00:06:57.83\00:07:01.16
are formalizing the
religious viewpoint.
00:07:01.19\00:07:03.42
Well, merrily speaking but
why they were doing it was?
00:07:03.45\00:07:06.37
Well, I
disagree, but that's the--
00:07:06.40\00:07:09.66
that is the way that
the courts have denigrated
00:07:09.69\00:07:13.97
for example Proposition 8.
00:07:14.00\00:07:16.38
California, California amended--
00:07:16.41\00:07:19.84
We amended our constitution
00:07:19.87\00:07:22.08
by 57 percent
to 41 percent vote.
00:07:22.11\00:07:26.21
By a large majority we
chose in California to retain
00:07:26.24\00:07:31.67
the traditional definition
of marriage is a man and woman.
00:07:31.70\00:07:35.91
That was upheld by the
California Supreme Court.
00:07:35.94\00:07:40.11
The federal courts denigrated
that constitutional amendment
00:07:40.14\00:07:44.60
as the product of
religious bigotry.
00:07:44.63\00:07:46.95
And the US Supreme Court
00:07:46.98\00:07:48.84
in an
unprecedented feat of hypocrisy
00:07:48.87\00:07:53.43
said on the one
hand in the DOMA case,
00:07:53.46\00:07:56.78
we respect the state's
rights to define marriage
00:07:56.81\00:08:00.63
and when
California defines marriage,
00:08:00.66\00:08:03.45
when we define marriage
they find a way to nullify it.
00:08:03.48\00:08:07.96
So the hypocrisy is palpable.
00:08:07.99\00:08:11.85
Yeah, you are right.
00:08:11.88\00:08:13.46
They've shown
their hand a little.
00:08:13.49\00:08:15.42
Well, what they-- but the
thing that they have not done,
00:08:15.45\00:08:19.82
which may come as a surprise,
00:08:19.85\00:08:21.46
they have not actually
placed same sex marriage
00:08:21.49\00:08:25.14
on a constitutional footing.
00:08:25.17\00:08:27.51
They haven't said that
the constitution permits
00:08:27.54\00:08:30.54
or require same sex marriage.
00:08:30.57\00:08:32.61
They actually
fall, fell short of that.
00:08:32.64\00:08:35.90
And neither did they in
the Lawrence case in Texas.
00:08:35.93\00:08:41.73
Which really empowered the
whole gay marriage movement.
00:08:41.76\00:08:46.77
So I think part of this
00:08:46.80\00:08:49.31
we've got problematic
legal dynamics at play,
00:08:49.34\00:08:53.00
but it's not a
simple, in fact it's wrong,
00:08:53.03\00:08:57.46
to say that the
Supreme Court in this case
00:08:57.49\00:08:59.96
is their agenda is
to empower gay marriage.
00:08:59.99\00:09:03.58
I don't think so,
I think their court,
00:09:03.61\00:09:06.34
and their ideological
biases are tripping them up.
00:09:06.37\00:09:11.04
And as you said elsewhere,
00:09:11.07\00:09:13.22
there is not an
inherent sympathy
00:09:13.25\00:09:16.33
to personal
religious moral choice anymore.
00:09:16.36\00:09:20.54
They might be sympathetic
to religious institutions,
00:09:20.57\00:09:24.14
but they are
ready to rough short,
00:09:24.17\00:09:25.34
write rough short over things.
00:09:25.37\00:09:26.51
But I think they've
got another goal inside
00:09:26.54\00:09:30.09
and we'll talk about
that in another program.
00:09:30.12\00:09:33.56
I think there is
growing power of the judiciary,
00:09:33.59\00:09:36.36
growing power of
all forms of government
00:09:36.39\00:09:40.18
where it thinks
that it's the arbitral
00:09:40.21\00:09:41.79
we're gonna be dictated
to, rather than leaving it up,
00:09:41.82\00:09:45.36
either to the state
or to the individual.
00:09:45.39\00:09:47.42
I think that the Supreme Court
00:09:47.45\00:09:50.08
was reminded of what happened
00:09:50.11\00:09:53.28
when they ruled
in Roe versus Wade
00:09:53.31\00:09:56.94
and announced a new legal regime
when it comes to abortion.
00:09:56.97\00:10:03.57
And it deprived the
states of the opportunity
00:10:03.60\00:10:07.65
to be the crucible
to workout the policies
00:10:07.68\00:10:10.87
and the laws
dealing with abortion.
00:10:10.90\00:10:13.12
Now of course there has been
00:10:13.15\00:10:14.22
lots of
legislation and litigation
00:10:14.25\00:10:16.73
since Roe versus Wade.
00:10:16.76\00:10:18.26
I think the
court wanted to avoid
00:10:18.29\00:10:20.84
being the final arbiter
00:10:20.87\00:10:22.62
of the subject
of same sex marriage
00:10:22.65\00:10:24.75
and leaving it to the states.
00:10:24.78\00:10:26.69
And yet they did
it in a hideous way
00:10:26.72\00:10:29.31
that nullified the vote
of the people in California
00:10:29.34\00:10:34.97
and effectively denied us
00:10:35.00\00:10:36.74
the benefits over our
republican form of government.
00:10:36.77\00:10:39.53
Because
initially the sovereignty
00:10:39.56\00:10:42.46
is supposed to
reside in the people
00:10:42.49\00:10:44.50
and when we choose to
amend our own constitution
00:10:44.53\00:10:47.52
that should be legitimate.
00:10:47.55\00:10:49.21
Yes, I mean same time I
need to remind our viewers
00:10:49.24\00:10:53.25
of the principle
of the United States
00:10:53.28\00:10:54.98
with representative government.
00:10:55.01\00:10:56.85
It's not majoritarian
rule, so just because the--
00:10:56.88\00:10:59.59
Well, but the court
stopped short of saying
00:10:59.62\00:11:02.73
that Prop 8
viol, if they had said
00:11:02.76\00:11:05.22
Prop 8 violates the rights
of same sex couples to marriage
00:11:05.25\00:11:09.41
then they would have
had a bases for restricting
00:11:09.44\00:11:13.59
the majority
decision as far as marriage.
00:11:13.62\00:11:17.40
They were unwilling to say that.
00:11:17.43\00:11:19.60
Now maybe that's what
they were really getting at,
00:11:19.63\00:11:22.18
is and in an earlier case
the California courts did say,
00:11:22.21\00:11:27.14
that same sex couples
have the same right to marry
00:11:27.17\00:11:30.69
as heterosexual
couples and I think that,
00:11:30.72\00:11:33.78
in that decision they were
ignoring something very basic.
00:11:33.81\00:11:37.92
What is the
definition of marriage?
00:11:37.95\00:11:40.45
Same sex, you know,
homosexuals have always
00:11:40.48\00:11:43.50
had the right to marry
somebody of the other sex
00:11:43.53\00:11:46.27
if they want to, but
they may choose not to.
00:11:46.30\00:11:49.61
And the state
has long recognized
00:11:49.64\00:11:52.72
certain legal rights of
cohabitation not with gays,
00:11:52.75\00:11:55.73
but it's not necessary
to have a marriage contract
00:11:55.76\00:11:59.25
either civil or
religious for certain rights
00:11:59.28\00:12:04.17
coming to just the
long-term relationship.
00:12:04.20\00:12:07.47
Okay, that's true.
00:12:07.50\00:12:09.02
I mean common law
marriage is a rarity
00:12:09.05\00:12:12.81
it's in some states,
but even in California
00:12:12.84\00:12:15.07
where we don't
recognize common law marriage.
00:12:15.10\00:12:17.77
We have the Marvin
case, where we do recognize
00:12:17.80\00:12:20.32
that you have economic
rights that pertain to all--
00:12:20.35\00:12:23.42
The fact that situation creates
certain obligation. Correct.
00:12:23.45\00:12:26.21
But explain for
our viewers though
00:12:26.24\00:12:30.49
why did the Supreme
Court deny standing to
00:12:30.52\00:12:33.92
in the case of proposition?
00:12:33.95\00:12:36.00
That's not
really even clear to me.
00:12:36.03\00:12:37.74
I'm not sure--
00:12:37.77\00:12:39.33
I think it was a result
looking for a rationale.
00:12:39.36\00:12:43.25
Yeah, I think it's
a very weak argument.
00:12:43.28\00:12:45.09
The Attorney General--
00:12:45.12\00:12:46.98
If they pulled that
lately against the freedom
00:12:47.01\00:12:50.12
from religion foundation
00:12:50.15\00:12:51.29
which is very correct there
I think, because, you know,
00:12:51.32\00:12:54.25
they are an uninvolved
party butting in to something
00:12:54.28\00:12:57.60
just to drive
religion out of public law.
00:12:57.63\00:13:00.36
First of all we
need to, you know,
00:13:00.39\00:13:01.62
not to loose our
listening audience.
00:13:01.65\00:13:04.39
Standing is a legal term of art,
00:13:04.42\00:13:06.33
and we better not
make any assumption.
00:13:06.36\00:13:08.73
In other words
right to bring the suit,
00:13:08.76\00:13:10.06
not directly
involved party, right.
00:13:10.09\00:13:13.42
Well, the standing is
a legal concept that asks
00:13:13.45\00:13:17.33
whether the person
who is a party to the case
00:13:17.36\00:13:20.96
has a legitimate
right to be there.
00:13:20.99\00:13:23.28
Now in California
the Attorney General,
00:13:23.31\00:13:26.03
the Governor, they
forsook their oath of office,
00:13:26.06\00:13:30.38
sworn to uphold and
defend the constitution
00:13:30.41\00:13:33.59
both of the United States
and the state of California,
00:13:33.62\00:13:36.66
they've refused to
defend the constitution
00:13:36.69\00:13:40.27
which had been amended
00:13:40.30\00:13:41.49
to define marriage
as a man and a woman.
00:13:41.52\00:13:44.21
So who steps into
defend Proposition 8,
00:13:44.24\00:13:47.64
the constitution of
the State of California,
00:13:47.67\00:13:50.11
but those who had promoted it.
00:13:50.14\00:13:52.38
And the court said that those
who were the representatives
00:13:52.41\00:13:55.85
supportive of
it, they did not have
00:13:55.88\00:13:58.91
the kind of
interest that warranted
00:13:58.94\00:14:01.77
being able to
defend it in court.
00:14:01.80\00:14:03.44
Now the California, the
California Supreme Court
00:14:03.47\00:14:06.93
had said these people do
have the right to defend it,
00:14:06.96\00:14:09.91
but the court didn't care.
00:14:09.94\00:14:11.89
Interesting case.
00:14:11.92\00:14:13.09
We'll discuss this
further when we come back
00:14:13.12\00:14:15.00
after short break, stay with us.
00:14:15.03\00:14:16.57