When this week began, same-sex marriage was legal in 19 states. Now, because of the Supreme Court's decision not to review the ruling of several appeals court, same-sex marriage may soon be legal in 25 states.
We want to drill down into the legal status and merits of same sex marriage with two top advocates: leading conservative Ted Olson represented the plaintiffs in the Virginia case, and is co-author of "Redeeming the Dream: The Case for Marriage Equality." Tony Perkins is president of the Family Research Council.
Gentlemen, welcome back to "Fox News Sunday." Mr. Olson, let me start with you. Why do you think the Supreme Court decided not to intervene in these cases, and can we take from that there's now a majority in the court who feels there is a constitutional right to same-sex marriage?
TED OLSON, FORMER SOLICITOR GENERAL: No one knows what goes on in the United States Supreme Court when they're deciding to take a case or how they decide the case. But what the Supreme Court was looking at on Monday when it rendered its decision not to review these pending cases is a record of something like 25 federal judges at the district court and at the appeal level which had consistently ruled that same sex marriage bans were unconstitutional.
I think the justices saw was a trend -- overwhelming trend in the same direction and felt that the federal courts were handling this issue in an appropriate and proper way, and decided not to weigh in.
The trend was one of like minded liberal judges! their motto: "constitution be damned"
WALLACE: Mr. Perkins, let me go a little further than Ted Olson, because he has to argue before the court. If the majority felt there was no constitutional right -- actually it takes a minority, only four of the nine justices to decide to review a case -- why would they make a non-ruling in this case which would allow thousands more to have same-sex marriages?
TONY PERKINS, FAMILY RESEARCH COUNCIL: Well, I mean, Ted is more of an expert on the Supreme Court. You still have two circuits that have decisions coming up that look favorable toward natural marriage. But I think the effect here is what we need to look. I think the effect of this is the court did a back alley type Roe v. Wade decision by letting the lower courts do their evil bidding. And the result of that is such -- you go back to 1973 when the court imposed abortion on the nation, it was to resolve the issue 41 years later.
That issue is now a political issue in every election from the president on down. This issue is not going away despite what the court may say.
WALLACE: I have to allow you to responds -- back alley Roe versus Wade?
OLSON: Yes, I think the analogy would be to the 1967 decision of the United States Supreme Court that struck down bans on interracial marriage. We now understand and the American public believe that that was a right decision and right for America. Over 59 percent of Americans now believe that marriage equality should be the law of the land. (So he says that the will of the people should be upheld.)Individuals should be allowed to get married to the person that they love.
The individuals involved in these cases have been together for decades. They now want to be a part of the community, and be part of our society by marrying and living with the people that they love.
WALLACE: Let me pick up on one of the central concerns that people have about all of this. In all 16 of the states that because of the Supreme Court's non-decision, may not have say legal same-sex marriage, there was a ban on those same sex marriage, either approved by the state legislature or popular referendum.
Mr. Olson, you have a long record of opposing what you call or people call judicial activism.
Question -- why should judges overrule the demonstrated will of the people either through referenda or through state legislature action?
OLSON: We have a Constitution and Bill of Rights precisely because we want protections from majority rule. When the majority in a legislature or a popular vote take away rights of individuals that are protected by the Bill of Rights, then we have an independent judiciary to rectify that situation. It's happened again and again and again throughout this country's history.
We have an independent judiciary to protect the rights of individuals like gay and lesbian citizens who only want respect, decency and equality along with the rest of us.
So he says that the will of the people should be ignored.
What is your single, strongest argument against allowing same-sex marriage?
PERKINS: Well, I'd like to ask Ted, what's the purpose of marriage?
OLSON: The purpose of marriage is what the Supreme Court has said 14 times. It's a fundamental right that involves privacy, association, liberty, and being with the person you love and forming a part of the community and being treated equally with the rest of society.
(Where was the question "What is the purpose" answered?)
Now, over, if you look at people under the age of 30, you're talking about a powder keg? People under the age of 30, it's like 80 percent of people agree -- So now the will of the people has value?
PERKINS: That's not true.
OLSON: Well, that is true.
WALLACE: Wait a minute. You answered his question. Now what's your answer to him?
PERKINS: First off, marriage is not to affirm adults. It's for the protection of children. And if love is the only factor, where you do you draw the boundary?
OLSON: Well, what the Supreme Court said in the cases that it decided last year involving the defense of marriage case, striking that down, is that children do matter. There are thousands and tens of thousands of children in same-sex households. They deserve the right to equality and the same respect and decency that other people have that are living right next door --
WALLACE: Mr. Perkins?
PERKINS: Well, we know from the social science that children do best with a mom and a dad. That's why our policies in this country have preferred marriage and given benefits to it.
But let me -- if love is the factor, what boundaries are there?
OLSON: You want the sky to fall because two people living next door to you --
PERKINS: No, I --
OLSON: What court after court after court has said, that allowing people of the same sex to marry the person that they love, to be part of the community and to be treated equally, does no damage to heterosexual marriage.
"Courts said ...does no damage to heterosexual marriage." because courts are experts on that.
OLSON: And court after court after court has said children living in a same-sex relationship do as well or better than people in other communities.
because courts are experts on that.
PERKINS: The court doesn't study this social --
OLSON: The court heard evidence.
PERKINS: Let me ask you, what are the boundaries, though? If it's just love, what are the boundaries? Where can we go with marriage?
WALLACE: What are you suggesting? That they're going to be polygamy. That people will be marrying their pets?
Goes to the pets, because that can be ridiculed. Ignores the polygamy or incest concerns. It deflects the serious answer.
PERKINS: No, I didn't say that. If we remove the natural established boundaries for marriage, the union of a man and woman, we have removed those boundaries, those guardrails.
There's no arbitrary boundary --
WALLACE: What about the argument that Ted Olson makes, which is, all right, you and your wife live happily in this house, there's a same-sex couple living here. What's the damage to you?
PERKINS: Let's talk about that. Let's talk about the wedding vendors that have been put out of business. Let's talk --
WALLACE: I'm not talking about that. That's a different issue.
Not it's not. Heterosexual marriages' financial stability has been harmed by lawsuits.
PERKINS: No, it's --
WALLACE: It's a different issue. I'm asking you, what's the impact on you and your family to have these people living next door?
PERKINS: Let's talk about it. Let's talk about my children all of a sudden, in school are taught values and morals that contradict what I teach as a parent at home. That's happening already across the country in those states that have recognized and forced same-sex marriage on the states.
Let's talk about the business place, let's about Aaron and Melissa Klein, a bakery in Oregon, forced out of business, forced to pay $150,000 in fines, simply because they didn't want to participate in a same-sex marriage.
WALLACE: We're gong to get to that in a second. But your argument as to whether somehow this damages the Perkins to have another couple next door?
OLSON: Well, everyone who has ever talked about this says there's no heterosexual couple that is going to decide to get divorced or not to get married or not to raise children just because another couple next to them is treated equally and with respect and decency under our Constitution. That is why we have courts.
When the Supreme Court finally acted, 16 states were still prohibiting interracial marriages.
As far as the marriage vendors, the people in the flower business or in the -- in the cake business or whatever it happens to be, we have a civil rights law that say if you're going to engage in commerce, you're not going to discriminate against people on the basis of their religion, sex or race. (Religion, sex (gender?), or race doesn't include sexual preference. This guy is a lawyer?) That's a simple solution to the problem. Massachusetts --
PERKINS: Driving them out of business? (is a simple solution to the problem?)
OLSON: Massachusetts allowed same-sex marriage 10 years ago. Nobody has been put out of business in Massachusetts -- (Perkins answers correctly below " Well, look, adoption agencies have been put out of the business in Massachusetts. " and bakers and florists have been elsewhere.)
__________________________________________________________ Now for why I think homosexual marriage harms heterosexual marriage.
Marriage is a communal recognition of a coital relationship. It is a contract to protect the interests of each of the married couple and their children. Including financial interests. It helps maintain societal stability by encouraging the transfer of wealth and assets from parents to children. As such, a civil government should promote such arrangements by recognizing them legally and documenting their structure (birth and marriage certificates). In the current political environment, it was also decided to allow tax breaks to those who engaged in marriage to promote the welfare of the children. When homosexual marriages are put on a par with heterosexual (normal) marriages, it first "waters the brand", dilutes the specialness of an arrangement meant to provide for children. Next, when homosexual marriages are accorded the same tax breaks as heterosexual unions, the tax benefits to the normal marriages are diluted. When everybody gets a tax break and spending remains the same, everyone's taxes go up. This harms normal marriages and the children thereof.