MICHEL MARTIN, Host:
I'm Michel Martin, and this is TELL ME MORE from NPR News.
Coming up, as we celebrate Passover, we introduce you to the leader of one of the country's largest African-American Jewish congregations. He also happens to be the first lady's cousin, and he will join us for a conversation about his faith journey in just a few minutes.
But first, gay marriage reaches the heartland and gets a legislative stamp of approval in Vermont. Last Friday, the Iowa Supreme Court unanimously ruled that gay couples have a constitutional right to marry. It's a first Mid-Western state to legalize gay marriage. Also this week, Vermont lawmakers overturned Governor Jim Douglas's veto of a gay marriage bill, making Vermont the fourth state to allow same-sex marriage.
S: The Hidden Assault On Our Civil Rights." He is with us from our New York bureau. Welcome to you both, gentlemen. Thank you.
DAVID YEPSEN: It's good to be with you.
KENJI YOSHINO: It's a pleasure to be here.
MARTIN: David Yepsen, let me start with you. The case before the Iowa Supreme Court involved six gay couples. How did the case get to court?
YEPSEN: Well, pretty clear cut. Several months ago, some time ago, these couples went to the county auditor, asking for - county recorder, asking for a marriage license. They were denied, as they expected to be, and they took it to court. It went through the lower courts, and then last week, the Iowa Supreme Court ruled on the subject.
MARTIN: How have Iowans reacted to the ruling?
YEPSEN: I think with calm, and fairly predictable. I think that the religious conservatives were upset about it, but yet, I think, they had a pretty clear understanding this was likely to happen. We've had debates in Iowa over gay and lesbian rights, civil rights in the legislature. They've lost those. The Democrats controlled both houses of the legislature and the governorship. And religious conservatives have not won too much lately, so I think that they were unhappy with this, but were not surprised by it.
MARTIN: Yeah, but, you know, the Iowa Christian Coalition was once a really strong force in state politics. Yeah.
YEPSEN: And they still are a force inside the Republican Party, but among all Iowans, they're only about a third of the electorate calls itself evangelical. And not all of those are religious conservatives.
MARTIN: Well, Kenji, talk to me about the importance of this decision, if you would. A number of people are noting, first, that it took place in the Mid West, but second that it was a seven-zero decision, when the other state court decisions legalizing same-sex marriage were far more split. But is there something in the reasoning of the decision that's particularly important to note?
YOSHINO: Well, a couple of things, Michel. I mean, one is that, on the one hand, the reasoning is fairly tempered relative to the California Supreme Court decision on May 15th, 2008, and that gave or only granted intermediate scrutiny, which is a lower level of judicial review and protection than is accorded to, say, racial minorities. And what the California Supreme Court had done earlier was to actually come out with strict scrutiny and to say that gays were exactly the same as racial minorities in the eyes of the constitution. On the other hand, we have the seven-zero ruling, and as you noted, this is a remarkable decision, not only because it occurred in the Mid West, but also because it was seven-zero.
The three prior courts to rule in favor of same-sex marriage were four-three decisions - in California, in Connecticut and in Massachusetts. And so I think that while on the one hand, this is a more tempered opinion, on the other hand, it was a more aggressive opinion in that there was absolutely no toehold for naysayers to find in the opinion. And so this makes the opposition to same-sex marriage much more like opposition to interracial marriage. Basically, what the Iowa Supreme Court was communicating was there just isn't an argument here that we're willing to credit.
MARTIN: I want to talk about Vermont in a minute, but before we move off the Iowa decision, David, as of course, everybody who follows this issue knows, in - the big argument in many places has been that the courts are leading public opinion faster than the public wants to go. In your assessment, was the court leading public opinion in Iowa, or was it following public opinion in Iowa?
YEPSEN: Maybe a little in both, Michel. You know, it's an interesting story about the Iowa Court System. The first court case that the Iowa Supreme Court heard when it was a territory, free the slaves, and the court back in the territorial days said you can't deprive someone of their liberties without equal protection. And Iowa jurists and Iowans have sort of been very proud of that tradition and have worked many years to uphold it. The courts are very independent in Iowa. They don't elect judges in the state. And I think Iowans also are comfortable with this notion. I mean this is the Middle West, you know? There's room to spread out. There's a real ethic of leave me alone.
Yes, they're deeply religious, but not necessarily in a conservative way. There's many tolerant Christians in Iowa who, even though they aren't gay or lesbian, simply believe in the notion of leaving people alone. It's not harming them if someone - if a gay couple wants to get married. So I think you add all of that together and you get an environment in which this sort of thing can happen and will be accepted. So, in a sense, the courts are leading public opinion, but it's also true that were efforts in the legislature a few years back to enact a constitutional ban on gay marriage, and they were defeated. And then we had all this talk at that time that members who voted against enacting this amendment would be defeated in elections, and they were not. Everybody got reelected. So I think Iowans are coming to grips with this.
MARTIN: If you're just joining us, you're listening to TELL ME MORE from NPR News. I'm Michel Martin, and I'm speaking with preeminent Iowa political observer David Yepsen and NYU law Professor Kenji Yoshino about recent legislative and judicial moves on same-sex marriage. Kenji, let's talk about Vermont. Vermont legislators overturned Republican Governor Jim Douglas's veto of a gay marriage bill, making it the first state to legalize same-sex marriage with a legislative vote, not a court decision. How significant is this?
YOSHINO: I think this - the significance of this cannot be overstated in the sense that it's an extraordinary, extraordinary development when two-thirds of both houses can vote and favor lifting the ban on same-sex marriage. It's an extremely exciting development. It goes back to what you were saying earlier, Michel, about whether or not the courts are moving too fast ahead of public opinion. I think what the Vermont decision by the legislature definitively showed is that there are at least some states where this is a political majority that is behind the right to same-sex marriage, and so the people speaking to their elective representatives actually voted to ensure this right.
MARTIN: But people will say, well, you know, Vermont, Massachusetts, Connecticut, these are New England, you know, Northeastern, coastal blue states. How - are there really any implications for other parts of the country? What do you say to that?
YOSHINO: I think that - well, first of all, let's not underestimate that even if this is a coastal blue state that, you know, back in 1999, the Vermont Supreme Court was asked to rule on this issue. And some people thought that same-sex marriage was going to be guaranteed by the judiciary, and the Vermont Supreme Court refused to do that, saying that it would give civil unions, but not marriage to gays. So I think for not only this to be marriage, but not civil unions, but also to be the legislature rather than the judiciary is a remarkable development, wherever in the country it happens.
Secondly, I think that there are likely to be ripple effects. I think it's a mistake to think that this is not a single interconnected conversation that we're having, even though our federal structure makes it a state-by-state conversation to some extent. So I think that it's very hard to understand what the Vermont legislature did. I mean, it went through the House of Vermont legislature by one vote, and I think that move is hard to understand without Iowa happening immediately before that.
And I think other states - both legislatively and judicially - are going to have their eyes on the Vermont decision and the Iowa decision as they move into their own deliberation.
MARTIN: But there's also the case that some 29 states, haven't they passed constitutional amendments banning same-sex marriage? So isn't there, in some sense, a firewall?
YOSHINO: There is, and that's why, ultimately, this case is either going to have to go to the United States Supreme Court, in which case those state constitutional bans will be struck down under the federal Equal Protection Clause. Remember that with respect to our federal structure, if something violates the federal Constitution, even if it is a state constitutional provision, it will fall, the state constitutional provision will fall.
Or alternatively, what will happen is that the nascent movement for same-sex marriage will lead to the repeal of these constitutional amendments in those 29 states.
MARTIN: What about the fact that even President Obama has said that he supports civil union, but does not support same-sex marriage? Does the court, does the Iowa court decision speak to religious belief that marriage is, it's a civil right, but it's also a sacramental obligation for some? And that for some people, they would argue, look, this is a First Amendment issue for me and for my religious practice. How is that issue addressed?
YOSHINO: Well, it's a great question, because what the Iowa Supreme Court did that was so remarkable was at the very tail end of its opinion, the last five pages or so, it actually takes up the religious question without the religious question even being argued. So it says, you know, the religious question is actually in the air. It's not been in the papers, but we're just going to address it, because we just want to clear the air. And I think that, that was really an exemplary move.
And what it said was the religion argument cuts on both sides, because there are actually many people of religious faith who want this right for same-sex couples, and so you can't actually say religion cuts solely in one way. Even if you could say that religion cut in one way, we also live in a society that separates church from state. And so when you say the First Amendment, I assume that you mean free exercise, but the First Amendment also contains the Establishment Clause, which means that there should be a separation of church and state.
So, in other words, when we're actually making public policy, when we're actually making legislation, we have a constitution that says, we live in a secular government and another person's religion is not my government.
MARTIN: Well, we're going to have to leave it there for now. It's a rich debate, and I have the sense that it we'll be back at it soon. But Kenji, just very briefly, I'm going to ask you this - not David, because he's still kind of a reporter and not in the predictions business. Do you believe that same-sex marriage will be legal in the United States in our lifetime?
YOSHINO: Yes, I do.
MARTIN: All right. We'll, we'll see. Kenji Yoshino is a constitutional law professor at New York University. He is the author of "Covering: the Hidden Assault on our Civil Rights." He was kind enough to join us from our New York bureau. Former Des Moines Register political reporter and columnist David Yepsen also joined us. He recently became the new executive director of the Paul Simon Public Policy Institute at Southern Illinois University at Carbondale. He joined us from member station WSIU on campus. David, good luck in your new position. Stay in touch.
YEPSEN: Thank you very much.
MARTIN: Thank you both.
YOSHINO: Thank you.
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