This is a partial transcript of Special Report with Brit Hume, June 26, that has been edited for clarity. Click here to order the complete transcript.
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BRIT HUME, HOST: In her concurrent with today's ruling, throwing out Texas' anti-sodomy law, Justice Sandra Day O'Connor (search) who ruled the other way 17 years ago -- or voted the other way wrote, quote, "A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause (search), under any standard of review."
In his dissent, Justice Antonin Scalia (search) said, quote, "What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the intervention of a brand new 'constitutional right' by a Court that is impatient of democratic change."
For more on this case and its implications, we're joined from Los Angeles by attorney, author and former Supreme Court clerk Edward Lazarus.
EDWARD LAZARUS, ATTORNEY AND AUTHOR: Thank you, Brit.
HUME: First of all, can you -- I'm a little unclear as to what it is that Sandra Day O'Connor found that is different in this case from the one on which she went exactly the other way, or a least seemed the other way, 17 years ago? Are the cases distinguishable?
LAZARUS: Yes, they are, Brit. Seventeen years ago, in Bowers v. Hardwick, the Court ruled that there was no due process right to engage in homosexual conduct. And that opinion was overturned by the majority opinion today that was authored by Justice Kennedy.
HUME: Well, I know but...
LAZARUS: Justice O'Connor...
HUME: ... she went the other way before, right?
LAZARUS: She went the other way in result, but not in reasoning. What she did today and the reason she doesn't join Justice Kennedy and writes only for herself, is that she didn't want to backtrack on Bowers. What she wanted to do is say there is this other constitutional provision out there, the Equal Protection Clause, that is triggered by this law that wasn't triggered by the Georgia law 17 years ago.
In Georgia, they outlawed sodomy for everybody. Texas, only for homosexuals. So what Justice O'Connor did is said is when you make that distinction, that triggers the Equal Protection Clause, and I can strike it down on that ground, not the ground the rest of the justices today used.
HUME: All right, now, Justice Scalia says in his dissent, that -- notes that the majority here said that they are not dealing with marital gay rights. He says do not believe it. What is he talking about?
LAZARUS: Well, let's just go back to Justice O'Connor and what she is saying there, in this regard she agrees with the majority, is that it's not a legitimate state interest to make the moral judgment that homosexuality is wrong.
OK. What does that mean? It has very broad implications because why is marriage reserved under most current laws to just a man and a woman? It is a moral judgment about homosexuality. And if that's not a legitimate state interest, why doesn't gay marriage get constitutional protection?
HUME: Does it strike you now, Mr. Lazarus, that based on what you've heard today from Justice O'Connor and the way this Court ruled that the Supreme Court might be prepared to rule that gay marriage is a constitutional right?
LAZARUS: This Supreme Court is not prepared to do that and Justice Kennedy and Justice O'Connor both went way out of their way to sort of wink and nod and say we're not going down that road. But they've laid the sort of logical foundation for it.
And that's where Justice Scalia is so upset because he understands that the logic of their opinions, not what they're saying in the footnotes, but the logic, would lead some people to draw that conclusion and lower federal Courts might.
HUME: Now, the Massachusetts Supreme Court is set to rule on that very issue. And it is widely anticipated that it will strike down Massachusetts's law, which reserves marriage to heterosexual couples. What would be the national implications of Massachusetts doing that? I know people who, for a constitutional amendment on marriage, are very much worried about what Massachusetts will do. Why?
LAZARUS: Well, the reason is, Brit, let's assume the Massachusetts Supreme Court says that Massachusetts is going to recognize same-sex marriage. Well, under the Full Faith and Credit Law -- the Credit Clause of Constitution of the United States, there is an argument that other states should have to recognize Massachusetts's recognition of that same- sex marriage. So, it would boot strap into every other state the recognition of those Massachusetts marriages.
Now, there was legislation passed, federal legislation passed during the Clinton administration that lets individual states, and now there are 37 of them that have done this, to disavow that. And to say we don't need, under full faith and credit to recognize a state's law like that that recognizes same-sex marriage. And I think in the long run, the implications of Massachusetts rule will not be that great.
HUME: Well, is the defense of marriage act capable of overruling the power of the constitutional Full Faith and Credit Clause?
LAZARUS: No, but the Full Faith and Credit Clause itself has really been watered down, very substantially. So, while it sounds like the Massachusetts same-sex marriage rule would have to be recognized by every state, doctrinally that's probably not true. But what you're going to see here is it's not just the death and taxes live on forever, it is also the constitutional litigation does and this is going to be litigated year in and year out for the next decade.
HUME: What is your view for the prospects of a constitutional amendment, which would say that marriages is between a man and a woman and all other rights associated with that, such as same-sex unions and that kind of thing should be left to the states? Is that something that has any chance of passing Congress and three quarters of the states in your judgment?
LAZARUS: I think probably not, Brit. I think that getting a constitutional amendment passed, as we've seen over the last several decades, is a very, very difficult process that. And I think that amendment will have a hard time. But...
LAZARUS: ... this is going to become an election issue. It is going to become an issue for judicial nominations, so this is going to percolate along for quite some time.
HUME: Mr. Lazarus, thank you very much.
LAZARUS: Thank you Brit.
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