Participants: Lincoln Steed (Host), Allen Reinach
Series Code: LI
Program Code: LI000231A
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00:23 Welcome to the Liberty Insider.
00:25 This is a program bringing you news, analysis 00:27 and up-to-date information on religious liberty events 00:30 in the United States and around the world. 00:33 My name is Lincoln Steed, editor of Liberty Magazine. 00:36 And my guest on the program is Attorney Allen Reinach, 00:39 Executive Director of the Church State Council. 00:42 Always glad to be with you. 00:43 And past guest and we often work together 00:45 and I know some of what you are going to say, 00:48 but our viewers don't, so let's get into it. 00:50 And we are good friends besides. Absolutely. 00:54 We might test it today on this program. 00:58 No, but, you know, we have slightly different takes 01:00 on a very important topic. 01:02 Sure. 01:03 Not really takes on it but tactics, perhaps. 01:07 I think most people even those 01:09 who don't follow religious liberty closely, 01:11 they don't listen to the news too much. 01:13 Noticed fairly recently, 01:15 when the Supreme Court brought in 01:17 at the same time decisions on two-- 01:20 I would say landmark cases that relate to gay marriage. 01:24 That was the Defense of Marriage Act repudiation. 01:27 Otherwise known as DOMA. DOMA. 01:29 And then one with a really knock back a case, 01:32 but the implications that are quite-- 01:34 Involving California's Proposition 8. 01:36 They denied standing really to those 01:39 that have brought in Proposition 8 in California, 01:41 which was a proposition design 01:44 to head off gay marriage in California. 01:47 So you know, there has been a lot of concern 01:50 about the future of religious freedom 01:53 in light of these cases 01:54 and what impact it will have on the churches. 01:58 And so I think it's well for us 02:00 to take some time to talk about them. 02:03 But first I thought it would be good 02:05 just to give some synopsis of 02:08 what the court actually said and did, okay. 02:12 So the DOMA case you have back in 1995, 02:16 Congress passes an act to define the scope of federal benefits 02:22 and how the federal government treats 02:25 marriage for all kinds of purposes. 02:28 Everything from immigration, to tax code, you name it. 02:32 This was under-- Under Clinton. 02:34 Clinton signs into law the Defense of Marriage Act 02:38 that does something that was very unremarkable. 02:41 It says marriage is a man and woman, 02:43 which it has always been throughout history, 02:46 throughout all civilizations, 02:48 it's not limited to any particular religion. 02:51 Marriages are man and a woman. 02:53 The Supreme Court, hears a case involving a woman 02:57 who was married in Canada, resident in New York, 03:00 her spouse dies and she subjected to a state taxation 03:07 as though she were not married, 03:09 because her marriage is not recognized under federal law. 03:12 And she sues for, you know, to be treated 03:16 to the state tax benefit of marriage 03:20 and the court rules in her favor, 03:22 but it's interesting how it did so. 03:25 It essentially said two things. 03:27 Number one, that marriage is 03:30 first and foremost the province of the states. 03:33 It's a function of state law 03:35 and the federal government had no business 03:38 getting into it in a first place which is false, 03:41 because all of federal government was doing 03:43 was defining how it's gonna regard marriage 03:47 for purposes of its own program. 03:49 Yeah, I mean, it's true on most things 03:51 except interstate commerce and other national issues, 03:56 the federal government really has to leave to state providence 03:59 even after the Civil War which change that dynamically. 04:02 But the second thing that the court did was 04:04 it justified its decision by criticizing 04:07 both Congress and the president 04:10 and accusing them essentially of bigotry 04:13 and saying there was no reason for them 04:17 to do this other than bigotry. 04:19 Well, that kind of insult 04:21 to your co-equal branches of government, 04:23 this is really unprecedented 04:25 to say that, that Congress was motivated purely 04:29 by bigotry towards gays. 04:34 Which, you know, there were no facts 04:38 that were presented it was-- 04:39 It was DOMA, but don't you think what was clearly at play 04:44 was then under the Bush administration 04:46 they attempted to pass the marriage amendment 04:50 or they intended to pass 04:51 the marriage amendment to the constitution 04:53 which would lock the door forever 04:57 and enforce in essence heterosexual marriage. 05:01 So it was, there was a sentiment at play, 05:04 even if it wasn't written into to DOMA 05:07 to formalize through government really not just a civil, 05:13 but a religious viewpoint on marriage 05:16 to head off a developing gay-- 05:18 Well, where you and I disagree is that-- 05:23 Neither one of us is pro-gay per se-- 05:24 That the commitment to marriage is a man and a woman 05:28 is primarily or exclusively a religious sentiment. 05:31 Absolutely. It shouldn't be under the state. 05:34 Well, no, I'm saying it's not based on religion. 05:38 Marriage is a man and a woman 05:39 is a matter of historical fact 05:41 throughout every civilization regardless of religion. 05:45 So it's not to say that it's religious. 05:48 I wrote an editorial recently 05:49 where I pointed out what we're getting into now, 05:52 but I have not yet heard any discussion 05:55 about the cultural and social implications 05:59 of this massive shift in how our society is saying marriage. 06:03 It's unprecedented, because as you say 06:07 every society even those that were fairly indulgent 06:11 to at the moral arrangement, and famously Greece and Rome 06:16 but they never formally put the state 06:19 and the society behind such abrasions, 06:22 they just endorsed it, 06:23 but now we are trying to make it a social norm. 06:26 Well, and the implications are-- 06:28 But that's not a religious thing per se-- All right. 06:30 But I don't like the idea which is abroad 06:34 and as you know in other programs 06:35 We've spoken about it from other angles. 06:37 The idea of certain religious factions 06:40 that to uphold their religious viewpoint 06:42 we will use the state, in this case a law 06:46 that they intended on the marriage amendment 06:50 to an essence formalize 06:52 our religious viewpoint on marriage. 06:55 Well, see I disagree that laws 06:57 that address marriage is a man and woman 07:01 are formalizing the religious viewpoint. 07:03 Well, merrily speaking but why they were doing it was? 07:06 Well, I disagree, but that's the-- 07:09 that is the way that the courts have denigrated 07:14 for example Proposition 8. 07:16 California, California amended-- 07:19 We amended our constitution 07:22 by 57 percent to 41 percent vote. 07:26 By a large majority we chose in California to retain 07:31 the traditional definition of marriage is a man and woman. 07:35 That was upheld by the California Supreme Court. 07:40 The federal courts denigrated that constitutional amendment 07:44 as the product of religious bigotry. 07:46 And the US Supreme Court 07:48 in an unprecedented feat of hypocrisy 07:53 said on the one hand in the DOMA case, 07:56 we respect the state's rights to define marriage 08:00 and when California defines marriage, 08:03 when we define marriage they find a way to nullify it. 08:07 So the hypocrisy is palpable. 08:11 Yeah, you are right. 08:13 They've shown their hand a little. 08:15 Well, what they-- but the thing that they have not done, 08:19 which may come as a surprise, 08:21 they have not actually placed same sex marriage 08:25 on a constitutional footing. 08:27 They haven't said that the constitution permits 08:30 or require same sex marriage. 08:32 They actually fall, fell short of that. 08:35 And neither did they in the Lawrence case in Texas. 08:41 Which really empowered the whole gay marriage movement. 08:46 So I think part of this 08:49 we've got problematic legal dynamics at play, 08:53 but it's not a simple, in fact it's wrong, 08:57 to say that the Supreme Court in this case 08:59 is their agenda is to empower gay marriage. 09:03 I don't think so, I think their court, 09:06 and their ideological biases are tripping them up. 09:11 And as you said elsewhere, 09:13 there is not an inherent sympathy 09:16 to personal religious moral choice anymore. 09:20 They might be sympathetic to religious institutions, 09:24 but they are ready to rough short, 09:25 write rough short over things. 09:26 But I think they've got another goal inside 09:30 and we'll talk about that in another program. 09:33 I think there is growing power of the judiciary, 09:36 growing power of all forms of government 09:40 where it thinks that it's the arbitral 09:41 we're gonna be dictated to, rather than leaving it up, 09:45 either to the state or to the individual. 09:47 I think that the Supreme Court 09:50 was reminded of what happened 09:53 when they ruled in Roe versus Wade 09:56 and announced a new legal regime when it comes to abortion. 10:03 And it deprived the states of the opportunity 10:07 to be the crucible to workout the policies 10:10 and the laws dealing with abortion. 10:13 Now of course there has been 10:14 lots of legislation and litigation 10:16 since Roe versus Wade. 10:18 I think the court wanted to avoid 10:20 being the final arbiter 10:22 of the subject of same sex marriage 10:24 and leaving it to the states. 10:26 And yet they did it in a hideous way 10:29 that nullified the vote of the people in California 10:35 and effectively denied us 10:36 the benefits over our republican form of government. 10:39 Because initially the sovereignty 10:42 is supposed to reside in the people 10:44 and when we choose to amend our own constitution 10:47 that should be legitimate. 10:49 Yes, I mean same time I need to remind our viewers 10:53 of the principle of the United States 10:55 with representative government. 10:56 It's not majoritarian rule, so just because the-- 10:59 Well, but the court stopped short of saying 11:02 that Prop 8 viol, if they had said 11:05 Prop 8 violates the rights of same sex couples to marriage 11:09 then they would have had a bases for restricting 11:13 the majority decision as far as marriage. 11:17 They were unwilling to say that. 11:19 Now maybe that's what they were really getting at, 11:22 is and in an earlier case the California courts did say, 11:27 that same sex couples have the same right to marry 11:30 as heterosexual couples and I think that, 11:33 in that decision they were ignoring something very basic. 11:37 What is the definition of marriage? 11:40 Same sex, you know, homosexuals have always 11:43 had the right to marry somebody of the other sex 11:46 if they want to, but they may choose not to. 11:49 And the state has long recognized 11:52 certain legal rights of cohabitation not with gays, 11:55 but it's not necessary to have a marriage contract 11:59 either civil or religious for certain rights 12:04 coming to just the long-term relationship. 12:07 Okay, that's true. 12:09 I mean common law marriage is a rarity 12:12 it's in some states, but even in California 12:15 where we don't recognize common law marriage. 12:17 We have the Marvin case, where we do recognize 12:20 that you have economic rights that pertain to all-- 12:23 The fact that situation creates certain obligation. Correct. 12:26 But explain for our viewers though 12:30 why did the Supreme Court deny standing to 12:33 in the case of proposition? 12:36 That's not really even clear to me. 12:37 I'm not sure-- 12:39 I think it was a result looking for a rationale. 12:43 Yeah, I think it's a very weak argument. 12:45 The Attorney General-- 12:47 If they pulled that lately against the freedom 12:50 from religion foundation 12:51 which is very correct there I think, because, you know, 12:54 they are an uninvolved party butting in to something 12:57 just to drive religion out of public law. 13:00 First of all we need to, you know, 13:01 not to loose our listening audience. 13:04 Standing is a legal term of art, 13:06 and we better not make any assumption. 13:08 In other words right to bring the suit, 13:10 not directly involved party, right. 13:13 Well, the standing is a legal concept that asks 13:17 whether the person who is a party to the case 13:20 has a legitimate right to be there. 13:23 Now in California the Attorney General, 13:26 the Governor, they forsook their oath of office, 13:30 sworn to uphold and defend the constitution 13:33 both of the United States and the state of California, 13:36 they've refused to defend the constitution 13:40 which had been amended 13:41 to define marriage as a man and a woman. 13:44 So who steps into defend Proposition 8, 13:47 the constitution of the State of California, 13:50 but those who had promoted it. 13:52 And the court said that those who were the representatives 13:55 supportive of it, they did not have 13:58 the kind of interest that warranted 14:01 being able to defend it in court. 14:03 Now the California, the California Supreme Court 14:06 had said these people do have the right to defend it, 14:09 but the court didn't care. 14:11 Interesting case. 14:13 We'll discuss this further when we come back 14:15 after short break, stay with us. |
Revised 2014-12-17