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tv   Key Capitol Hill Hearings  CSPAN  December 30, 2015 7:00pm-8:01pm EST

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including former new york governor, mario cuomo. former senator, edward brook and fred thompson. sarah brady and julian bond. >> the main thing i think that we need to think about going forward, what are the principles we're going to operate under. you know, 15 or 20-point plan is great. a ha, i can beat him, i got a 30-point plan. that's great, but what are the underlying principles? when plans go asunder or you can't get agreement on them, something like that. i think the united states and we as citizens ought to remember our first principles. what i call our first principles. i don't think the declaration of independence and constitution of the united states are outloaded documents. declaration tells us -- [ applause ]
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the declaration tells us that rights come from god, not government. [ applause ] the constitution has a framework that's set up not as some kind of result of bureaucratic haggling, but as something is designed to protect, promote freedom. >> and the president is right. in many way, we are a shining city on a hill. but the hard truth is that not everyone is sharing in this city's slender and glory. a shining city is perhaps all the president sees from the port ko of the white house and the ver randa of thiz ranch, where everyone seems to be doing well. but there's another city. another part to the shining city. the part where some people can't pay their mortgages.
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and most young people can't afford one. where students can't afford the education they need and middle class parents watch the dreams they hold for their children evaporate. in this part of the city, there are more poor than ever. more families in trouble. more and more people who need help, but can't find it. even worse. there are elderly people who tremble in the basements of the houses there. and there are people who sleep in the city's streets in the gutter where the glitter doesn't show. >> you can see the entire speeches from mario cuomo and fred thompson and other officials who died this year on cspan at 8:00 p.m. eastern. tonight on american history tv on cspan 3. at 8:00 p.m. eastern, a debate on who is a better model for
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republican presidents, calvin coolidge or ronald reagan. then a tribute to walter mondale and harry truman's decision to drop atomic bombs on japan. as 2015 wraps up, cspan presents congress, year in review. a look back at all the news making issues, debates and hearings that took center stage on capitol hill this year. join us thursday at 8:00 p.m. eastern as we revisit mitch mcconnell taking his position at senate majority leader. pope francis' historic address to a joint session of congress, the resignation of house speaker john boehner and the election of paul ryan. the debate over the nuclear deal with iran. and reaction from congress on mass shootings here and abroad. gun control, terrorism and the rise of isis. congress, year in review on cspan. thursday at 8:00 p.m. eastern.
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the second session of the 114th congress begins in january. the house is back for work next tuesday, january 5th. among the items on the agenda next week, a budget reconciliation bill that would defund planned parenthood and repeal the affordable care act. the senate has approved the legislation and the president said he would veto it. the senate returns on monday, senators will consider a u.s. circuit court nomination in pennsylvania and a bill from rand paul that would require an audit of the federal reserve. the house is live on cspan and the senate live on cspan 2. the chicago humanities festival hosted a decision on how the supreme court has ruled on issues related to sex, privacy and marriage. this is an hour.
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>> jeff and i have known each other through the university of chicago for a number of years. and i have always admired and respected him for his sometimes icon clasic legal positions regarding embed ed cultural institutions. one has only to reflect back on the social religious and legal culture of this country. that history which everyone in this room has been witness to. to be astonished at how rapidly our views have change d towards same-sex marriage. it took real courage to address an injustice that generated as much heat and animus as this topic did. please help me welcome a man who stood up to argue and to defend what our nation's highest court has now recognized as a constitutional right. professor jeffrey stone.
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>> thank you, i'm delighted to be here. my talk derives from a book i am currently finishing, titled sexing the constitution. which examines the history of sex, religion, law and the constitution. although the book addresses such issues as obscenity, continue sepgs, homosexuality generally abortion and so on, i decided to focus specifically this afternoon on the issue of same-sex marriage. an issue that cuts to the very heart of the meaning of equal citizenship. in august of 1982, an atlanta police officer went to the home of michael hardwick to serve an arrest warrant for public
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drinking. upon entering the home, the officer observed hardwick and another man engaged in oral sex. the officer placed both men under arrest for the crime of sodomy. bowers versus hardwick, the supreme court held that the georgia homosexual sodomy law was not unconstitutional. noting the constitution says nothing about a right to commit sodomy and that prescriptions against homosexuality quote have ancient roots, yus tis byron white concluded that to claim that the constitution protects a right to engage in such conduct is at best, feegs. added that condemnation of ho homosexual conduct is rooted in christian ethical standards and
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that the act of sodomy was somehow protected by the american constitution would be to cast aside millennia of moral teaching. justice harry blackmon dissents. although the values that describe intimacy for hundreds if not thousand of years, blackmon insisted that fact alone could not provide adequate justification to the georgia law. that certain religious groups condemned behavior an issue, he reasoned. gives the state no license to impose their judgments on the entire citizenry. to the contrary, the legitimacy of secular legislation he said depends on whether the state can advance some justification for its law beyond its conformity to religious doctrine. finding no such justification, blackmon concluded that the
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georgia statute could not be reck nionciled the u.s. institu. that was a dissenting opinion. the courts invocation of moral and religious prescriptions against homosexuality played a central role in the justice's reasoning in bowers and it's therefore useful to have some understanding of that history. so, let's take a look at the ancient roots justice white envoe invoked. the prechristian world thought of sex as a positive part of human nature. not with sin or religion. the ancient greeks for example focused not on sexual sin, but on whether an individual's conduct was harmful to others. and this extended even to homosexuality. indeed, a common feature of greek sexual life was that adult men often had same sexual
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relationships with adolescent boys, but greek poetry, history and literature celebrated such relationships and identified them with love, integrity, honor and courage. similarly, although roman sexual life was different from that of the greeks, the romans, too, celebrated sexual pleasure an neither roman religion or law condemned same sex sex. the emergence of christianity, however, produced a profound change in the prevailing understandings of sex. by the end of the fifth century, christianity had come to condemn sexual desire as inherently shameful and as an evil temptation that must be suppressed. this shift occurred over the course of several centuries, but it was augustan who finally crystallized the understanding of sex. he linked sexual desire to the fall of man. adam's transgression, he argued,
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had not been one of disobedie e disobedience, as this ancient hebrews believeds but of sex, and is born out of evil, that every child born of evil is born into sin and it is through sex that man passes on the original sin from one generation to the next. he they ever concluded that man's only hope for redemption lay in reputeuating the sexual impulse and with it, the burden of sin and shame inherited from adam. his vision ultimately shaped the future. not only of christianity, but of western culture and law more generally. during the next thousand years, christian dogma backed by the threat of hell fire and damnation, became not only religion, but social, political authority. the sin of sodomy came to be
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seen as dire. for as the biblical story of sodom, god will punish not only the sinners, but those who fail themselves to prevent the sin. but it was still unclear what act constituted sodomy. thomas equinas first drew a sharp distinction between opposite sex and same sex unnatural acts. oral ar anal sex with a person of the opposite sex was deemed a vice against nature. such acts with a person of the same sex he concluded constituted the worst form of sodomy. before long, thomas' thinking on this point became the dominant authority in christian doctrine. and roughly the same time, same sex sex came for the first time to be declared not only a sin, but also a crime.
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that is the church for the first time conscripteded the secular law to extend its prohibition on same sex sex, not only to those who shared the faith, but to everyone, regardless of their personal religious beliefs. criminal statutes against same sex sex were thus enacted throughout europe and because of the heinous nature of this crime, these laws called for homosexuals to be castrated, dismembered, burned at the stake, drowned, hanged, stoned to death, decapitated or buried alive. in short, homosexuals for the first time became the object of a system attic campaign of extermination. little reformation brought about significant changes in the protestant attitude towards sex. those changes did not extend to homosexuality. to the contrary, protestant reformers reaffirmed no uncertain terms the traditional
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condemnation of homosexuality as a detestable and abominable sin. in the american colonies, for example, the puritans declared that sodomy must be punished with death without mercy. by the time of the american revolution, the colonies under the influence of the enlightenment, had stopped using the criminal law to prosecute most form of consentual sex. except for the crime of sodomy, which remained a capital offense. indeed, sodomy remained a serious felony in every state in the nation for the next 200 years. throughout all of this history, until the late 19th century, it was generally assumed that individuals who chose to engage in same sex sex were no different than other individuals who chose to engage in other types of criminal or sinful behavior. engaging in homosexual sex like murder or robbery, was a choice.
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that asunlgs began to be questioned for the first time in the late 19th century. as medical authorities became interested in the issue. for the first time, persons drawn to same sex sex began to be seen as individuals possessed of a distintive psychological identity. it was in this era that the concept of the homosexual first came into being. leading stud dis of homosexuality in the late 19th century, that it was a pathology, that persons afflicted with this were strange freaks of nature. among the questions debated were whether the inclination to engage in homosexual conduct was congenital or acquired. whether it was curable or incurable. and whether it should be accepted as an unavoidable condition or actively resisted and suppressed. physicians proposed a broad
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range of remedies includinging hip noes is, sex with prostitutes, intense bicycle riding. rectal massage. burning the neck and lower back with hot irons. electric stimulation, castration and clerectomy. many doctors recommended the sterilization of homosexuals in order to prevent this from being passed on from one generation to the next and by 1938, 32 states had enacted couple pulsery sterilization laws aimed at homo sex yuls. also in 1930s, the image of the homosexual took on a sinister cast. growing public anxiety over sex crimes recast the dominant image of dangerous sipsycho paths. demon as perverts and child
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molesters, they became the new enemy of the people and arrests for sodomy increased dra matly in the 1930s. during world war ii, the united states for the first time, attempted to prevent homosexual men and women from entering the military and those who were discovered were discharged in proceedings that left them branded for life. with the advent of the cold war, things got even worse. fearful of domestic aversion, they turned with a vengeance against homosexuals. for americans viewed communism as athiestic, un-christian and degenerate. as one congressman asserted, the russians are strong believers in homosexuality and warned that communists are now converting american youth to homosexuality
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in order to defeat us from within. by 1950, the lav darr scare was underway. the government began using lie detectors. the fbi compiled lists of suspected homosexuals and president eisenhower issued an executive order declaring sexual perversion a serious security risk. in light of the intensity of the antihomosexual fever that gripped the nation, gays and lesbians found themselves increasingly isolated. in a society in which the dominant religion excoloruated it as a heinous sin, the law branded it as a vicious crime and the medical profession diagnosed them as diseases, the vast majority of individuals who harbored homosexual impulses did their best to hide their secret shame from family, friends, neighbor, employers and associates.
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the terrible fear of discovery kept the secret lives of most invisible, even to one another. indeed, even civil rights groups turned their backs on gays and lesbians in the area. in 1957, the civil liberties union declares quote, it is not wherein the province of the aclu to question the laws aimed at the elimination of homosexuals. in the late 1960s though, inspired by the women's rights movements, a handful of courageous gay men and lesbians began calling openly for the acceptance as equals in society. in 1969, for example, carl whitman penned what he turn termed the gay manifesto where he declared quote, our first job is to clear our own heads of the garbage that's been poured into them. liberation for gay people is
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defines for ourselves who we are. it is time for us to come out. this was the first time this anyone had used the term, come out, in this manner. for those who saw it, equal rights for gays and lesbian, coming out was a radical and daring act that would affect every aspect of their lives. indeed, as late add 1969, only a few hundred members of the growing gay rights organizations of the united states that publicly identified themselves as homosexuals. the next decade saw a gradual, but halting progress in the cause for gay rights. in 1972, a lesbian was allowed to retain custody of her children in a contested divorce for the first time in american history. in 1973, the american psychiatric association declared for the first time that homosexuality was not a mental illness. and by the end of the decade, 22 states adopting the recommendation of the american
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law institute has repealed your laws, making consentual sodomy a crime. illinois by the way was the first state in the nation to do this. these developments sparked a sharp backlash, however. the most explosive response arose out of a proposed gay rights ordnance in dade county, florida. in 1977, the county commission passed an ordnance -- on the basis of sexual orientation. local religious groups were outraged and demanded a repeal of the ordnance. local baptists charged that it violated god's commandments and evangelicals soon entered the fray. leaders of the christian right came to miami to campaign in favor of repeal. and in the special referendum, dade county's voters repealed the ordnance by an overwhelming margin. this victory generated momentum
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for new religion based antigay movement. the campaign took on an ugly as bumper stickers appeared across the nation with such messages as kill a queer for christ. within two years, many of the laws that had been enacted in other cities to protect gays and lesbians were also repealed. the christian right charged during this campaign that such laws promoted child molesting and gay recruiting and jerry fallwell raged that they reproduced and recruit and were after your children. they saw this fight as a religious battle for the christian soul of america. soon therefore, aids struck the gay community with a vengeance. as the disease became associated with homosexuality, a christian right deemed it god's punishment for homosexual sodomy. the reagan administration had no
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interest in devoting government time or money to an illness that was thought to threaten only gay men. rather than invest federal funds in medical research, the white house instructed the center for disease control, quote, to look pretty and do as little as you can. over the course of the next decade, aids ravaged the homosexual community, killing more than a quarter of a million gay men and leaving hundreds of thousands more to wonder if they might be next. ironically though, the horror of aids brought homosexual into thing light. as thousands of gay men died horrible deaths, people had to take notice. often, though not always, with sympathy and concern. gradually, one person at a time in often awkward and painful conversations, with family, friends and acquaint enss, the
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previously closeted lives of homosexuals became visible. first, out of necessity and desperation and later, out of candleholder and self-respect. gay and visibility was suddenly melting away. but the gay and lesbian march of washington in 1993, hundreds of thousands of individuals wearing pink triangles marched proudly past the white house. i know because i was there. there's the pin that i wore. that day. now, i have to confess that i wasn't in washington in order to participate in the march. rather, i was there for a reunion of justice william brennan lockhart at the supreme court that happened to be on the same day as the march. but once there, i did participate in the march. but now, i want to tell you something that i've only once
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publicly revealed before. after i got to the supreme court for the reunion, the brennan clerks all gathered in the supreme court chamber and i had a couple of these pink triangle buttons in my pocket. my former wife, nancy, and i decided we had to do something in the spirit of the day, so, while i kept guard, she discreetly pinned a pink triangle button and a red stripe on the large american flag that hangs next to the bench behind which the justices sit when they are hearing cases. and the last time i checked, it was still there. but don't tell anyone. any any event, return to my theme, four years after the 1993 march, ellen degeneres, start of the show, ellen, came out as a lesbian. shortly there after, some 42 million viewers tuned in to watch her character, ellen
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morgan, reveal that she, too, was a lesbian. but not everyone cheered. the response of the christian right was fierce. rev rand fallwell called her ellen degenerate and donald wild mann railed that homosexuality was a sin grievous to god and repulsive to christians. the struggle was a matter f f life and death because if we fail, we fear the judgment of god on our nation. the battle lines had been clearly drawn. that brings me back to the supreme court. since we saw earlier in its first encounter with homosexuality, the supreme court held in bowers that a state could make that conduct a criminal offense and the court explain ed that given the histoy of religious and moral condemnation of homosexuality, any suggestion that the constitution could be interpreted as protecting such
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behavior was at best, pha session. exactly a decade after bowers. several cities like dade county had enacted order nan nances prohibiting discrimination on the basis of sexual orientation. as in dade county, however, this generated a sharp response from the christian right, which usually succeeded in getting the laws repealed. in colorado, after denver enacted an antidiscrimination ordnance in 1991, coalition of christian right organizations launched an aggressive campaign to amend the colorado constitution to override the city's ordnance. amendment two, which was adopted in a statewide referendum, provided that neither the state of colorado nor any of its subd visions could enact a law that
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protected homosexuals. nine days later, lawyers from the american civil liberties union, which changed its mind, filed suit claiming amendment two violated the united states constitution. it seemed clear that the supreme court would reject the challenge, but in a stunning 6-3 decision, the court held amendment two unconstitutional. justice anthony kennedy, who had been appointed to the court by reagan, authored the court's opinion and kennedy's view, the problem with amendment two was that it imposed a special disabilitlility only upon home . under amendment two, every group in colorado was free to try to persuade the city council or state legislature to enact laws to protect them against
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discrimination, except homosexua homosexuals. because of amendment two, only they would have to amend the state constitution before they could obtain protection. with that in mind, justice kennedy turned to the clause which provide d no state shall deny to any person the equal protection of the laws. under that guarantee, if the law treats some differently from others, it will satisfy the equal protection laws as long as it bears a rational relationship to some legitimate purpose. although almost every law passes that review, justice kennedy n concluded that amendment two did not. this was so kennedy reasoned because a law declaring it shall be more difficult for one group of citizens than for others to seek aid from the government was virtually unprecedented in american history and was
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therefore impossible to escape the inference that the disadvantage being imposed on homosexuals be by this constitutional amendment was the result of not of a rational effort, but of animosity and ago tag nisic towards the class of persons. and a desire to harm a politically popular group cannot itself constitute a legitimate government interest, kennedy concluded that amendment two violated the constitution. justice anthoskaly joined by rehnquist and thomas, was of a rather different view. scalia maintained that two is not the manifestation of a quote bear desire to harm homosexuals, but a rather and perfectly le mat attempt to preserve traditional sexual morays. he castigated it as disengeneral
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yous. the supreme court third decision involving the rights of homosexuals was pretty much a rerun of bowers. police officers dispatch today a response to a disturbance. after they entered the residence, saw two men engaged in anal sex. the men were arrested, charged and convicted of violating a texas statute, making it a crime for any person to engage in devious sexual intercourse with a person of the same sex. since 1982, bowers has been used to justify discrimination against gays and lesbians in military discharges, employment discrimination and a host of other contexts. after all, the conduct is contract that a homosexual is no
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different than a rapist, a robber and thief, but much had changed in 17 years. not only had aids devastated the gay community and changed the public's perception, but 60% of americans now thought homosexual sex be deemed a criminal offense. in a 6-3 decision, the supreme court overruled and held the texas statute unconstitutional. justice kennedy again delivered the opinion of the court. kennedy maintained that the court's reasoning in bowers v. hardwick had been -- in such deeply personal relationships. although conceding that the framers of the constitution had not express live guaranteed the right to engage in homosexual sex, kennedy explained that the
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framers had left some open ended because they knew later generations concede that laws one thought proper in fact serve only to oppress and to be unfair. that kennedy maintained the situation in lawrence. there was included no constitution alley legitimate justification for making same sex sex a crime. justice scalia joined once again by rehnquist and thomas, dissented. scalia accused the court of signing on to what he termed the homosexual agenda and fumed that the court had no business invalidating legislation that would be enacted by the citizens of texas. echoing scalia's outrage, conservatives were livid. pat robertson -- jerry fallwell warned that lawrence v. texas would lead to bestiality and a paster in kansas moved it marked
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the death nail of american sievization. when it came time for justice kennedy to announce the court. he read a brief statement explaining the result from the bench. the supreme court chamber was of course packed. at the end, he declared quote, bowers v. hardwick was not correct when decided and it is not correct today. it ought not to remain binding precedent. bowers v. hardwick should be and now is overruled. it was a remarkable movement. overwhelmed at what was happening, many of the gay and lesbian advocates sit ng the gallery openly sobbed. to the gay and lesbian community, it was an occasion for dancing in the streets. joyous demonstrations erupted in cities across the nation. lawrence meant much more than the rarely enforced antisodomy
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laws could no longer be enforced. rather, lawrence meant that never again would their rights be dismissed to the highest try bual in the land. never again would they wonder whether the words engraved on the pediment of the supreme court building equal justice under law included them. the constitution was not their constitution, too. and san francisco, a group of veterans who had been expelled for military service during world war ii because of their sexual orientation, proud lisa luted as the rainbow flag, which had flown atop an 80-foot pole for more than five years, was lowered and an american flag was raised in its place. for most of american history, the notion that a man could marry a man or a woman could marry a woman seemed utterly absurd. 1990, however, only four years
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after bowers, three gay couples in hawaii applied for marriage licenses. which were of course denied. audaciously, they then filed suit in state court claiming the state's refusal to allow marriage violated the hawaii constitution. pretty much everyone's surprise, the hawaii supreme court ruled in 1993 that the state's law might indeed violate the hawaii constitution. this decision provoked a furious response from the christian right and almost immediately, states across the nation rushed to amend their state constitutions explicitly to define marriage as only one man and one woman. the goal of these amendments was both to prevent their own state courts from following the hawaii supreme court suggestion and to make it impossible for future majorities in this state should they ever emerge, to legalize same sex marriage by enacting
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legislation to that effect. these issues played out at the national level as well. as the 1996 election approached, the antigay rhetoric was -- dick armey, the republican whip in the house, publicly referred to barney frank as barney fag and republican speaker of the house, newt gingrich, proposed doma, which provided if any state were to recognize marriages between persons of the same sex, persons entering into such marriages would be ineligible for any of the multitude of federal benefits that were otherwise available to married couples. the hearings on doma were openly home phobic. members of congress described them as quote, sick, perverted and dangerous charge that had the nation was facing a dangerous attack among god's principles and at the flames of -- congress quickly enacted
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the legislation and with the presidential election around the corner and with the american people opposed to same sex marriage by a margin of 68-23%, president bill clinton signed doma into law. of course, none of this really mattered at the time because same sex marriage was not legal in any state in the nation. seven years later though in 2003, the massachusetts supreme court held that laws denying same sex couples the freedom to marry violated the massachusetts constitution. massachusetts became the first state in the nation to legalize same sex marriage. in response, 13 additional states promptly amended their state constitutions to make clear that they prohibited same sex marriage. several years later though, the supreme court's of connecticut, california and iowa followed massachusetts' lead and held their state constitutions also guaranteed same sex couples the
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right to marry, but the pushback again was furious. in california, for example, the christian right launched a vigorous and successful campaign to amend the constitution to override the supreme court's opinion and voters in iowa spurred on by the moral majoritied voted out of office three of the justices who had voted to recognize a state constitutional right in same sex marriage. as the ektive director warned, if any judge attempts to impose an immoral agenda on us, we are going to take you out. thus, despite several landmark victories, the movement for same sex marriage had stalled. doe ma remained the law nationally. most efforts to legalize same sex marriage had overturned and by 2013, more than 30 states had enacted -- expressley outlawing same sex marriage.
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this brings me to the supreme court's fourth decision. windsor versus the united states. in a bitterly divided 5-4 decision, the supreme court invalidated domo an june 26th, 2013, ten years after the day after its decision in lawrence. justice anthony kennedy again authored the opinion of the court. he was joined p by justices ginsbu ginsburg, briar, sotomayor and kagan. in his opinions of the court, kennedy explain that had issue presented was not whether the states were constitution alley obligated to recognize same sex marriage. rather, the issue was to whether the federal government could constitutionally discriminate against couples who had been legally married in a a state because they happened to be of
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the same sex and approaching that question, justice kennedy emphasize that had a state's decision to give same sex couples the right to marry conferred upon them dignity and status. doma's principle effect kennedy maintained, was to identify a subset of state sanctioned marriages and to make them unequal. kennedy argue aed that by placing legally married same sex couples in the position of being second tier marriages, doma demeaned the couple and humiliated tens of thousands who were then being raised by same sex couples. because no legitimate federal interest justified a law disparaging those whom the state protecteds, kennedy concluded doma violated the constitution. in a furious opinion, justice scalia characterized the court's reasoning as nothing short remarkable. he dismissed it as perplexing, confusing, absurd, overcooked
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and legalistic argue lbargle. the constitution does not forbid the government to enforce traditional sexual norms and ska skaly area angrily predicted that windsor would lead to a recognition of a constitutional right of same sex marriage. as far as this court is concerned, he fumed quote, no one should be fooled. it is just a matter of waiting for the other shoe. striking how far the court had moved in the 27 years from bowers to windsor. this was due to several factor, one of which was not an overall move of the court in a more liberal direction. to the contrary, under a broad range of issues including affirmative action, campaign finance, gun control and voting rights, to name a few, the supreme court with the additions of justice scalia, kennedy, tomt, roekts and alito, had
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moved more conservative than the court had been at the time of bowers. what had changed in those years, was the public awareness of gays and lesbians in society. and the public legal understanding of both the morality and wisdom of laws discriminating on the basis of sexual orientation. indeed, public opinion on those issues shifted dramatically, between bowers and windsor. in 1986, no one had even bothered to poll on the question of same sex marriage, the idea seemed ludicrous. it wasn't until 1996 that gallup thought to ask people about same sex marriage and at that time, only 22% of americans thought it should be legal. by 2013, however, 54% of americans shared that view. this shift was due to many factor it is, but most important, was the profound change in the visibility of gays and lesbians in american society.
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this transformation affected not only every day citizens, but ledge islator, mayors, presidents and judges. with these changes, the traditional judicial understanding as liberty, equality and due process, were suddenly called into question and rightly so. but it's important to note that those changes in public attitudes and understandings did not in themselves dictate any particular change in constitutional doctrine. bowers and windsor were both 5-4 decisions. only one vote changed over the course of those 27 years. robin bork been confirmed to the supreme court and kennedy therefore never been pinted to the court, the outcome of windsor surely would have been 5-4 the other way. so, my point was that the divergent outcomes in these cases were shaped by at least two critical factors.
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the general public understanding of homosexuality at the time of the decisions and the particular interprettive approaches and values of the individual justice who happened to be on the supreme court at the specific moment. when the issues arose. in the years after windsor, there was a virtual avalanche of lower court decisions invalidating state laws denying same sex couples the freedom to marry. the other shoe as scalia predicted, was about to fall. you know, berg fell vershodged deciding this year, the supreme court in another bitterly divided 5-4 decision, held that states could not constitutionally deny two persons of the same sex the freedom to marry. the opinion written by anthony kennedy, was premised in what he described as the tran senn dant
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importance of the right to mary. marriage allows two people to find a life that cannot be found alone. it is essential to our most profound hopes and aspirations. conceded that marriage had traditionally been understood as between a man and woman, he declared it is appropriate and inevitable that new dimensions of freedom become aparnts to new generations over time. noting that the court had long held that fundamental personal choices central to individual dignity and autonomy, can be protected by the constitution even if they are not explicitly listed in the constitution and that the court had long recognized marriage as one of those implied fundamental rights, kennedy concluded that although the limitation of mariner to opposite sex couples may have long seemed natural and
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just, it's inconsistentsy with the meaning of the mund mental right to mary has now manifest. predictably, roberts and scalia, thomas and alito, were vig yous in their kdissents. roberts accused the justices of reckless judicial activism. the decision, quote, is an act of will, not legal judgment. the right it announces has no basis in the constitution. justice scalia, thomas and alito authored similarly scathing dissenting opinions. scalia for example, charged the majority's opinion lacks even a thin veneer of law and that is it is quote, a naked judicial claim to a suh power at odds with our system of government. thomas added that the majority's decision threatens the religious lib erty and alito railed that the decision evidenced quote, a deep corruption of constitutional interpretation. so, who is right?
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the mere fact that five is more than four. does not necessarily make the five correct. even though it makes the law. so, who is right? let me offer a few observations. first, the fury expressed by the dissenters and their condemnation of the majority's opinion is completely unwarranted. although there are reasonable grounds to disagree with the court's decision and i'll get to them in a moment, there is nothing about the decision itself that merits the screeching charges of judicial useration of the democratic process hurled by the four dissenters. indeed, those same justices have embraced highly controversial and activists interpretations of the constitution in awarding for example, the 2000 presidential election, george w. bush. and holding affirmative action programs on constitutional. and holing gun control regulations unconstitutional.
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in holding laws regulating campaign expenditures unconstitutional and in holding the voting rights act of 1965 un unal to cite a few examples. for them, to stand tall is nothing short of hypocrisy. second, there are in fact reasonable grounds in which the disagree with the court's analysis. in validating laws prohibiti prohibitingiprohibiting same sex marriage, kennedy relied on the argument that marriage is a fundamental right and the government cannot constitutional limit the right to marry, even to same sex couples, without a compelling justification. the very notion that the constitution protecting unenumerated rights that are not
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mention mentioned in the constitution has always been a highly controversial con cement. both the constitution express live protects the freedom of speech, religion and other expressley rights, essential puzzle in constitutional interpretation has always been whether the constitution implicitly also protects other rights that have been -- not been expressly spelled out in the texts. the rights to use contraception, the right to privacy, the right to vote, the right to decide for one self to bear a child, the right to vote, and so on. but the recognition of such unenumerated rights is always a tricky business because it allows the justice to impose
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their particular value judgments about what they happen to think are fundamental rights. one constraint that has sometimes been suggested by the justices is that the court should recognize an implied fundamental right only if the claimed right is one that's been deeply rooted in our nation's history and tradition. marriage, of course, is such a right. but as the dissenters argued, how we think about that in the context of same-sex marriage is complicated. what is deeply rooted in our nation's history and tradition, they argue, is marriage between two persons of the opposite sex. not marriage between two persons of the same sex. thus in their view the court was not protecting a right that was deeply rooted in our nation's history and tradition, but instead creating an entirely new right out of old cloth, a
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position they insist is beyond the legitimate authority of the supreme court. now although this is a reasonable argument, it is not compelled by the actual practice of the court, which over time has not limited itself to defining constitutional fundamental rights in this manner. but the point is certainly an arguable one, and the dissenters objection on this one is far from crazy or irresponsible. third point i want to make is my own view is the court made the wrong argument, that it should have decided the case not on the ground that marriage is a fundamental right, but on the ground that discrimination against gays and lesbians violates the equal protection clause. i saw this for two reasons, the first of which is obvious. i think it is a stronger argument legally and less open to the kind of challenge that i stated a moment ago. i'll come to my other reason
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later. so the supreme court generally holds that laws are consistent with equal protection clause as long as they rationally further a legitimate state interest. but the court has also held that laws that discriminate against individuals on the basis of suspect criteria are especially problematic under the equal protection clause and that they are unconstitutional unless they can survive a highly demanding standard of justification. now because laws discriminating against african-americans are the paradigm violation of the equal protection clause, the court generally considers several factors in deciding whether discrimination against any particular group should be deemed similarly suspect. first, whether the group has experienced a long history of discrimination. second, whether the defining characteristic of the group is unchangeable. third, whether the group can
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effectively protect itself against discrimination through the political process. now those who challenged the constitutionality of laws that discriminate against gays and lesbians maintain that such laws should be understood as unconstitutional. they maintain that homosexuality is a choice. it is therefore no different than a history of discrimination against arsonists, robbers, and murders and gays and lesbians have ample political power. in their view laws that discriminate against homosexuals are completely differently constitutional against laws that discriminate against african-americans, women, and japanese americans, all of which
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the court have held are constitutional suspect. this rationale of equal protection argument would have a much better basis for the equal protection clause not only because it's a stronger argument, but also because it would resolve all discrimination against gays and lez beeians not only the issue of measure. gays and lesbians have been subjected to a long history of discrimination. sexual orientation is not a matter of choice. gays and lesbians have their interests overridden in the political process. law that is discriminate against gays and lesbians in any context should properly be deemed constitutionally suspect in the sense they are highly likely to be tainted by considerations of hostility, ignorance, and
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prejudice. this, to me, is the deepest and truest reason for invalidating all laws that discriminate against gays and lesbians. i'd like to close with one final observation. for most of american history, a particular understanding of religion dictated the laws. in the last half century due largely, though not entirely, to the supreme court of the united states those religious values have been pushed aside and individuals have increasingly been freed to act on their own personal and religious beliefs. this is in my view a great achievement in a society dedicated to the separation of church and state. but it now does leave us with an interesting challenge. for a constitution also guarantees the freedom to
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practice one's religion. and the demise of the religious state, those who hold the traditional christian values now find themselves on the defensive, no longer able to dictate that others must act in accord with their religious beliefs. they demand they be allowed to act in accord with their own religious beliefs. kim davis demands the right not to sanction same-sex marriages. catholic priests demand the right not to marry same-sex couples. florists and hotel owners and restaurant owners demand the right not to have to participate in same-sex weddings. these are not easy questions for one who values both the separation of church and state and the freedom of religion, as do i. those are issues that the court and society will continue to have to wrestle with as we go
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forward. but perhaps the most astonishing thing about the supreme court's decision is that the backlash, which was so anticipated, has in fact been so tepid. now that may change over time, but i think not. this is not abortion. those who oppose abortion sincerely believe it is the murder of children. if one believes that murder abos the murder of children, it is easy to understand why you do not give up the fight. in homosexuality the reality most people think they can live with it. they never imagined they could, but they can. [ laughter ] >> so thus far the response with a few odd exceptions like kim davis has been almost nonexistent, even in the states most would have expected a
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response. we can and should bask in the glory that our nation has taken another important step in the protection of human dignity and citizenship and equality. we have many steps left to take, but this is one that we can genuinely celebrate together. to gain similar celebrations in the future, we constantly have to challenge the accepted wisdom. no one in this room would have imagined 25 years ago that the supreme court of the united states would have held that gays and lesbians have a constitutional right to marry. that was virtually unthinkable. we must always remember that we, like those who went before us, hold beliefs that our children will regard as naive, foolish, and bigoted. as we strive to fulfill the obligations of citizenship in a free society, we have to have the courage, the open-mindedness
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and the integrity to question the conventional wisdom and challenge things. thank you. [ applause ] coming up on american history tv on c-span 3, programs about the presidency. next, two debates on presidents coolidge and reagan. historians and students debate which president is a better model for republican candidates today. jimmy carter joins a tribute to vice president walter mondale. the donation of a paper crane donated by a japanese child who died of leukemia after the hiroshi ma bombing. coming up next,


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