On Fox: Republican v Republican on Marriage Equality

Ted Olson debates gay marriage with hate group leader

On Fox News Sunday, Ted Olson, the Republican on the legal team that argued for marriage equality in California’s Prop 8 case — but who led the witness-bribing, anti-Clinton “Arkansas Project” in the 1990s, and who represented Bush/Cheney in the 2000 Bush v. Gore case in which Republicans on the Supreme Court appointed George W. Bush as president — debated Tony Perkins, one of the grand wizards of the anti-gay hate movement. Transcript follows:

[CHRIS WALLACE, Fox News Sunday host]: 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.

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. 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. Here is what Senator Ted Cruz said this week. Take a look.


SEN. TED CRUZ (R), TEXAS: We shouldn’t have unelected judges striking down our marriage laws, trying to impose their public policy notion on the state of Texas and on states where the elected legislatures have made the decision to preserve and protect traditional marriage.


WALLACE: 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.

WALLACE: Mr. Perkins, let me go back to the case where there were bans on interracial marriages. In the number of states, the Supreme Court simply ruled those bans were unconstitutional, as Mr. Olson —

PERKINS: Apples and oranges.


WALLACE: Mr. Olson says — and it’s an argument, we don’t get to vote on the Bill of Rights. Why is it apples and oranges?

PERKINS: Apples and oranges, because we’re talking about an arbitrary boundary created by man between the races. That doesn’t exist in nature. There is a boundary between people of the same sex getting married. They can’t procreate. They can’t — there’s nothing in nature to say that’s normal.

But to go back, this is unprecedented decision. Voters in two thirds of the states have affirmatively gone out to protect the definition of marriage. This is the only time in a period of two decades in which voters and their elected representatives have affirmatively embraced the definition of marriage in their state policy, and now, you have the courts overturning that, robbing the people of their vote and their voice. What we see here, I believe, is that the court has lit a fuse to a powder keg culturally that is going to have ramifications for years to come in this nation.

WALLACE: All right. Let’s talk about the merits of this, and, obviously different people have different views.

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.

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 —

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 —


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.


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.

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?


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.

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.

The same argument Mr. Perkins was making was made with respect to interracial marriages in 1967 — 30 some states at one point prohibited interracial marriages.

And talk about the color of the skin? People were making the same arguments. Marriage is wrong between people of different races. We have to stop that.

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. That’s a simple solution to the problem. Massachusetts —

PERKINS: Driving them out of business?

OLSON: Massachusetts allowed same-sex marriage 10 years ago. Nobody has been put out of marriage —


OLSON: It’s a canard.

PERKINS: It’s not.

WALLACE: Mr. Perkins, I’m going to give you the final word. In your answer, I’d like you to talk about what role you think this will play in the 2016 Republican presidential battle.

PERKINS: Well, look, adoption agencies have been put out of the business in Massachusetts. Parents have been denied the right to determine the values their children are taught. It affects families. It affects all of Americans, and it’s wrong for the court to take away the voice of the people.

I think it’s an issue not only in 2016. Like Roe v. Wade, the court wanted it to go away 41 years ago. It’s still here. This issue will be here for decades to come if the court does not allow the states and the people to deal with it.

WALLACE: Mr. Perkins, Mr. Olson, I want to thank you both so much for coming in today. I thought it was going to be interesting. It was indeed. And we will stay on top of this issue both in and outside of the courts. Thank you, gentlemen.

OLSON: Thank you, Chris.

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