CNN Asks If Traditional Marriage Defenders Are 'On the Wrong Side of History'

March 25th, 2013 4:11 PM

Hyping "growing support" for same-sex marriage, CNN's Carol Costello asked a supporter of California's Proposition 8 on Monday if he was "on the wrong side of history" for legally defining marriage as between one man and one woman. Her tone fits right with Friday's CNN panel where a traditional marriage supporter was disgustingly marginalized as a segregationist and compared to a slave owner.

Costello cited GOP strategist Karl Rove admitting that he could see a Republican presidential candidate publicly support same-sex marriage in 2016. She then asked Austin Nimocks of the Alliance Defense Fund, "Austin, you heard what Karl Rove just said. Are you on the wrong side of history?" [Video below the break. Audio here.]

Costello's reporting was pregnant with hype that the Supreme Court would rule in favor of same-sex marriage supporters. She spent over 20 minutes in two hours on the topic of same-sex marriage, and framed the upcoming Supreme Court hearings on Proposition 8 and the Defense of Marriage Act as "a milestone for marriage equality."

"It's been snowing here in Washington. But that is not deterring these people," she dramatically pointed out same-sex marriage supporters who were "lining up outside the Court to witness history."  

Multiple times, Costello touted "optimism" of same-sex marriage supporters that the laws would be struck down. "There is such optimism, Will Cain, among gay rights advocates that the U.S. Supreme Court will rule in their favor. Are they right to be so optimistic, though?" she asked.  

In addition CNN aired two reports during Costello's 9 a.m. ET hour about support for same-sex marriage by Hollywood actors and the CEO of Starbucks. "The CEO of Starbucks sticking up for same-sex marriage and facing off with one of his shareholders," noted Costello.

"It may be months before we know how the Supreme Court will rule on same-sex marriage. But many celebrities believe Hollywood is already on the right side of history. And hope the Court follows," reported Hollywood correspondent Nischelle Turner. She noted the "personal" struggle for gay rights of one actor and his fiancé.

Turner added that Hollywood is "one corner of California that's united under the banner of marriage equality."

Below is a transcript of the reports, which began airing on CNN Newsroom on March 25 at 9:33 a.m. EDT:

CAROL COSTELLO: A milestone for marriage equality this week as the U.S. Supreme Court hears oral arguments on Prop 8 and the Defense of Marriage Act. It comes amid growing support nationwide as more Americans say they think gay and lesbian couples should have the legal right to get married. And as the Republican party is urged by its own self review to soften its tone on the issue, particularly if Republicans want to the attract young voters. And get this, none other than Karl Rove says candidates for the party's next presidential ticket could be influenced.

(Video Clip)

GEORGE STEPHANOPOULOS, host, ABC's This Week: Karl Rove, can you imagine in the next presidential campaign, a Republican candidate saying flat out 'I am for gay marriage'?

KARL ROVER, Republican strategist: I could.

(End Video Clip)

COSTELLO: And then Karl Rove quickly changed the subject. Joining me now, CNN contributor and senior writer for ESPN L.Z. Granderson, and CNN contributor and analyst for The Blaze, Will Cain. Welcome to you both.

WILL CAIN, CNN contributor: Good morning to you, Carol.

L.Z. GRANDERSON, CNN contributor: Morning, Carol.

COSTELLO: Good morning. So it's 34 degrees today. It's been snowing here in Washington. But that is not deterring these people. Take a look. They have been camping out at the Supreme Court, some of them since Friday in the hopes of getting a good -- can you believe this? They're waiting to get into the Court to hear these oral arguments. There is intense interest in this issue. Why do you think that is, L.Z.?

GRANDERSON: Well, I'll tell you one thing. I plan on joining those people in a few hours. I'll be on a plane heading to D.C. and I'll be speaking at one of the rallies tomorrow. And it's because this has been a long time coming. If you can expect Americans to sit outside of retailers for two, three days in advance for Black Friday, you can imagine what people, what Americans who have been denied their benefits, denied their rights as Americans have been anticipating this for a really long time. The question is will the Supreme Court have the courage to go beyond just the state of California and actually do what we know history will show to do, which is prove that there is no room for discrimination in this country, there is no room for discrimination in the law of the land.

COSETLLO: There is such optimism, Will Cain, among gay rights advocates that the U.S. Supreme Court will rule in their favor. Are they right to be so optimistic, though?

CAIN: Well, there's two separate cases, Carol. There is the one dealing with the Defense of Marriage Act at the federal level and then there's the one dealing with Proposition 8 in the state of California, and whether or not states can enact bans on same-sex marriage. I can't answer both of those at once, because I do think all those people you show waiting out front, assuming they're supporters of same-sex marriage, can be optimistic about DOMA, the Defense of Marriage Act being struck down. But I don't think they should carry as much enthusiasm for the Supreme Court to knock down Prop 8. I think the Supreme Court will probably look for, as L.Z. alluded to, a narrow decision that affects possibly just the state of California, and they'll do that because they want to see the political process play out. They have seen through history with examples like Roe v. Wade that it's better for democracy to sort these things out than to come from on the Court. That's just a political analysis and a prediction. It's not whether or not it's right or wrong.

COSTELLO: And I hear you. And I just want to read to you, L.Z., something Justice Kennedy was quoted in the Washington Post, he said "A democracy should not be depended for its major decisions on what nine unelected people from a narrow legal background have to say." He seems to be saying this issue is already playing out in political circles. It's playing out in individual states. So why should this issue be up to the Supreme Court to decide?

GRANDERSON: I don't know. That's like asking why should the Supreme Court get into deciding decisions regarding race. You know, this notion that comparing marriage equality to Roe v. Wade may work when it comes to hypotheticals among those who are deep into the law, but when it comes to morality, there really is no comparison. This isn't about whether or not someone should have their right to choose to guide their own bodies. This is something the Supreme Court has already ruled on 14 times and that is marriage.

Marriage is a fundamental right of Americans. They have already decided this 14 times. And so really what this is is just a repeat of something that justices before them have done. And one other thing I would like to make note of is that this isn't about unelected officials. These officials, these justices, were appointed by presidents who were appointed. And that means the American people indirectly did vote for these people because they voted for a president that they knew had certain political leanings. And those leanings helped influence who they picked to be justices.


CAIN: No, no, that's just a misunderstanding of the role of the justices. They are inherently anti-democratic bodies.


CAIN: They are inherently there to stand in the way of the democratic process. They are inherently there to defend the rights of minorities over the vote of majorities. That's the role of the Supreme Court and the justices. That being said, what we're confusing here is this. I actually think Prop 8 is unconstitutional. I actually think it's a violation of the Equal Protection Clause. But your question what we're trying to analyze, is whether or not they will actually be struck down this week, or rather in the decision two months from now.

And what I'm telling you is because of their experience with Roe v. Wade and because that halted debate in this country and on the reverse side, Loving v. Virginia, which was laws that banned interracial marriage, by the time they knocked that down, which assure me was a long time coming, 20 states had already gotten rid of those laws. They like to see the democratic process play out because the country is better off having the debate publicly rather than judges stop it cold in its tracks. That being said, I think they should.


GRANDERSON: We've already had this debate.

CAIN: Hold on, L.Z., that being said I think they should. I think same-sex marriage bans are unconstitutional. I'm telling you that rather, what you can expect this week.


CAROL COSTELLO: The CEO of Starbucks sticking up for same-sex marriage and facing off with one of his shareholders. The coffee chain facing a recent boycott due to its stance for same-sex marriage, and in a recent shareholder meeting, one man argued the boycott had hurt first quarter profits. Starbucks' CEO pushed back.

(Video Clip)

HOWARD SCHULTZ, CEO, Starbucks: It is not an economic decision for me.

We employ over 200,000 people in this company and we want to embrace diversity of all kinds.

If you feel respectfully that you can get a higher return than the 38 percent that you got last year, it's a free country. You can sell your shares at Starbucks and buy shares in another company. Thank you very much.

(End Video Clip)

COSTELLO: Last fall, Starbucks backed a Washington state bill to legalize same-sex marriage. That bill later became law.


COSTELLO: The Supreme Court prepares to hear arguments tomorrow on California's controversial Prop 8 which defines marriage as between a man and woman. But some of Hollywood's A-List are making their case today. Nischelle Turner looks at how they feel about the ban on same-sex marriage.

(Video Clip)

NISCHELLE TURNER, CNN entertainment correspondent: (voice over) If the fight for same-sex marriage is a war, many in Hollywood are on the front line.

BRAD PITT, actor: What makes this nation great is our freedoms and the idea of equality.

LADY GAGA, singer: We must demand full equality for all.

MATT DAMON, actor: It's about time the Supreme Court weighed in on it and, you know, hopefully they will come down in favor of it.

TURNER: From movies to music to television, there is a long list of world famous entertainers who publicly support same-sex marriage.

JESSE TYLER-FERGUSON, actor: We've been talking about it for a long time.

TURNER: For Modern Family star Jesse Tyler-Ferguson and his fiance, Justin Mitka, the fight is personal.

TYLER-FERGUSON: It's like an uphill battle.

Justin actually works in the field, so he's – he sort of lives that every day.

TURNER: Mitka works for the American Foundation for Equal Rights, which was created in 2008 to sponsor the lawsuit filed by two California couples challenging Prop 8, the state's ban on same-sex marriage.

UNIDENTIFIED MALE: It's in my heart.

TURNER: AFER's board is full of entertainment heavy weights like Oscar-winning producer and screenwriter Bruce Cohen, and Dustin Lance Black, along with Rob Reiner.

ROB REINER: This is a non-partisan issue.

TURNER: While some in Hollywood are working behind the scenes in the fight for marriage equality, others are openly asking the Supreme Court to allow gay people to marry. Talk show host and comedian Ellen DeGeneres married her wife, Portia De Rossi, four years ago when same- sex marriage couples were briefly allowed to wed in California. The legal recognition of their marriage will hinge on how the state Supreme Court weighs in on the state's Proposition 8.

In a letter to the court, DeGeneres addressed marriage equality with a touch of her trademark humor. Reading in part, "Portia and I have been married for four years and they have been the happiest of my life. And in those four years, I don't think we hurt anyone else's marriage. I asked all of my neighbors, and they say they're fine." It may be months before we know how the Supreme Court will rule on same-sex marriage. But many celebrities believe Hollywood is already on the right side of history. And hope the Court follows.

JULIE BOWEN, actress: Absolutely will be done this week. I just can't even imagine anything else. To me it's – it's an embarrassment that it hasn't already been done.

JANE LYNCH, actress: You know the thing is, is the march towards history always lead – and I'm quoting Martin Luther King here – it always leads towards equality. And I think I just terribly paraphrased that, but that's what we're hoping for here.

UNIDENTIFIED MALE: I think it's you know, it's definitely going to be overturned, I hope.

TURNER: One corner of California that's united under the banner of marriage equality.


COSTELLO: The U.S. Supreme Court is gearing up to hear two big cases involving same-sex marriage beginning tomorrow. And people are lining up outside the Court to witness history. Some have been camped out in the cold since Thursday night. They're vying for about 250 seats reserved for the public for each case. While many are waiting in line to hear the debate for themselves, others are being paid to hold a spot for big law firms or advocacy groups.

When oral arguments begin tomorrow, it will mark the first time the high court has directly delved into this highly controversial issue. They will first hear a case involving California's Prop 8, which bans same-sex marriage in California. On Wednesday, they will hear a challenge to the Defense of Marriage Act, or DOMA. That federal law defines marriage as between one man and one woman. Edith Windsor of New York is a plaintiff in the DOMA case. She fought back when she received an inheritance tax bill for $363,000 when her partner of 42 years died in 2009. Here's what she told us in an earlier interview.

(Video Clip)

EDITH WINDSOR, plaintiff challenging Defense of Marriage Act: New York State accepted my marriage as a marriage. And I believe and the Justice Department and the President agreed with me, that the law DOMA is unconstitutional. DOMA is cruel. It discriminates against us for absolutely no value to the country, and we'd like to see that defeated all together.

(End Video Clip)

COSTELLO: CNN's Joe Johns is in Washington with more on what's ahead this week. Morning, Joe.

JOE JOHNS, CNN crime and justice correspondent: Morning, Carol. These are two of the most important cases of the year for the Supreme Court. The case involving Edith Windsor there is actually the second case scheduled to be heard this week on Wednesday. That challenge to the federal Defense of Marriage Act.

This is the law passed by Congress and signed by the President in 1996 that takes away benefits of marriage of same-sex couples on the federal level. DOMA, as it's called, can affect over 1,000 benefits. Everything from the way married couples pay their taxes to who gets notified as next of kin in the event military personnel are injured or killed in the line of duty.

The first case on the docket on Tuesday is a challenge to California's Proposition 8, which defines marriage as between a man and a woman. It's about equal protection and whether the fundamental right of marriage extends to same-sex couples.

It's being brought by same-sex couples from California who say they have the right to be married. There is also a very interesting question here of whether the people defending Proposition 8 are able to show they have standing to bring the case. In other words, the supporters of Proposition 8 have to show same-sex marriage causes them tangible harm. If they can't do that, the Court might be able to decide that case without reaching the merits, Carol.

COSTELLO: It's interesting you say that, because there seems to be such optimism on the part of gay rights advocates that the U.S. Supreme Court will rule in their favor.

JOHNS: There is a lot of optimism. And the question, of course, is whether now is the time? There has been an internal debate in legal circles about whether this is the time to actually bring cases like this because it's all happened rather quickly. You think about 1996 and DOMA, you think about Proposition 8, which was just a few years ago. And the states, if you look at the states, most states still have laws forbidding gay marriage in one form or another. And just a few states have laws supporting it. So it will be a very interesting question and probably decided by the end of June.

COSTELLO: You have a busy week though, to hear these initial arguments for and against same-sex marriage. Joe Johns reporting live from Washington.


COSTELLO: Same-sex marriage, the high court is ready to hear oral arguments on two momentous cases this week. Some call the push for same-sex marriage the civil rights issue of our time. They say the tide has turned and that it's time for a change. Even Karl Rove thinks, yes, a Republican candidate could embrace same-sex marriage.

(Video Clip)

GEORGE STEPHANOPOULOS: Karl Rove, can you imagine in the next presidential campaign, a Republican candidate saying flat out 'I am for gay marriage'?

KARL ROVE: I could.

(End Video Clip)

COSTELLO: And that's all Karl Rove would say. I'm joined now by San Francisco City Attorney Dennis Herrera. He filed a brief with the Supreme Court challenging Prop 8 and Austin Nimocks is an attorney who supports Prop 8, which is a measure that in essence defines marriage between a man and woman. Good morning to you both.

DENNIS HERRERA, City Attorney of San Francisco: Good morning.

AUSTIN NIMOCKS, Alliance Defense Fund: Thank you for having us.

COSTELLO: Austin, you heard what Karl Rove just said. Are you on the wrong side of history?

NIMOCKS: The only side of history with regard to marriage is the right one regarding the truth. And that really should be decided by the American people. Americans have an inevitable and inalienable right to determine our own history, and that's really a fundamental aspect of America. We have a massive political debate going on in this country about marriage. And the last thing we need is the Supreme Court to take this debate away from the American people, present a 50 state solution to the marriage question. That's not what we want. We have democratic institutions for a reason and we need to keep using them as we debate marriage, its meaning, and its importance to our society.

COSTELLO: And Dennis, Prop 8 was approved by voters in California. You want the U.S. Supreme Court to overturn that law. Some say the Court might be loath to do that, even with the public ever increasingly on the side of same-sex marriage. Are you really that optimistic?

HERRERA: I am optimistic. I just want to go back to Austin's point in talking about the political process. If we were to follow that line of argument, there would be no reason to have a Constitution and no reason to have an Equal Protection Clause, which is precisely there to protect disfavored minorities from the tyranny of the majority. And the fact of the matter is we've had this debate for quite some time. You've seen a massive shift in public perception and opinion, and I think that's precisely because we have put discrimination on trial for not just four years, but nine years in my case, going back to our state court actions in California.

And what we've seen is when you put the face of discrimination on families and friends, that people understand there is absolutely no reason whatsoever to discriminate against gays and lesbians from exercising their fundamental right to marry. So we're very optimistic in this case.

COSTELLO: Austin, the U.S. Supreme Court has ruled on similar issues, for example, interracial marriage. So why shouldn't it rule on this issue?

NIMOCKS: Marriage has always been color blind, but it's not gender blind. And the argument that Mr. Herrera is making is that marriage, a cornerstone of Western civilization, something that has existed with for us hundreds and thousands of years before the idea of same-sex marriage even existed, is all of a sudden now unconstitutional and that Americans should have no right whatsoever to believe in marriage, to uphold this ideal in our public policy, is really an outlandish argument.

And we're talking about something that's a fundamental cornerstone of our society. Americans still believe in marriage because of its importance to our society and all of a sudden it can't just become unconstitutional. And that's why the Supreme Court doesn't need to work with a heavy hand here. We really need the Supreme Court to allow us to work through this, through our democratic institution. There is no fundamental right to same-sex marriage in the U.S. Constitution. And that's very clear.

COSTELLO: And Dennis, Austin might be on to something. In the Washington Post, Justice Kennedy is quoted. He says a democracy should not be dependent on what nine unelected people decide on such a big issue. He seems to be saying we should just let the process play out and let the voters decide. The tide has already turned. Could Austin be right in part?

HERRERA: I think that if you go back and look at Justice Kennedy's opinions when it comes to issues that are very much related, as he's certainly not in favor of taking away rights and discriminating against gays and lesbians by naming them as an inferior class. He's made that quite clear in his rulings in the case and elsewhere back in Colorado in 1996.

To Austin's point, we're not talking about a fundamental right to same-sex marriage. We're talking about a fundamental right to marriage that has been enshrined in Supreme Court precedent for over 100 years. And we just want lesbian and gay individuals to have the same rights as their opposite sex brethren and it's up to the other side to show why there is any rational reason to discriminate against our gay and lesbian brothers and sisters, and to date, in the district court and the appellate court, they have been totally unable to show that. And that's why we're here today.

COSTELLO: Okay, so I'm going to ask you your beliefs about – well, you'll get it when I ask you. So Austin, I'll ask you, if the U.S. Supreme Court rules that same-sex marriage is constitutional, it's now the law of the land, what will you do?

NIMOCKS: The debate on marriage is not going to end in this country. The Supreme Court can no more settle the question of this marriage debate than it settled the question of abortion. Americans are more pro-life now than at any time since Roe v. Wade because the debate continued.

And so that's really why we need the Supreme Court to not rule with a heavy hand here. There is a rich Supreme Court precedent about marriage. And it has always been about one man and one woman. Mr. Herrera's argument, he wants to redefine marriage and then apply past Supreme Court precedent to it, it doesn't work that way. Marriage has always been one man and one woman and Americans should have the constitutional and legal right to continue to uphold that in public policy. That's really what this debate is about. It's a political debate. It's not a constitutional question and we need to leave it to our political processes.

COSTELLO: Okay, so Dennis, I will ask you the question. If the Supreme Court rules in favor of DOMA, or upholds Prop 8, what will you do next?

HERRERA: I think it's pretty clear that as far as Prop 8, the United States Supreme Court is the final arbiter. But I take great solace in the fact in that incredible change in public opinion, not just in California, but across the country. A recent poll in California now shows that 62 percent of Californians are in favor of marriage equality and a recent poll, ABC/Washington Post,shows that nationwide 58 percent of Americans are in favor of marriage equality.

So we've always talked about being on the right side of history. We've been there since 2004. And I'm confident we're going to be victorious in the Supreme Court. But even if not, the political winds certainly demonstrate that Americans are no longer in favor of discriminating against gay and lesbian people.

COSTELLO: It all begins tomorrow. Dennis Herrera, Austin Nimocks, thank you so much for joining us this morning.