Mass. Court: 'Gay Marriage Can't Be Denied'

This is a partial transcript of Special Report with Brit Hume, November 14, that has been edited for clarity.

Watch Special Report With Brit Hume weeknights at 6 p.m. ET

BRIT HUME, HOST: So, what happens now that the Supreme Court of Massachusetts has declared that the constitution of that state guarantees homosexuals the right to marry? Will gay couples soon be able to fly to Massachusetts, get married and be recognized as spouses nationwide?

And what about the so-called Defense of Marriage Act or acts? There is one for the federal government and 37 others around the country.

For answer, we turn to Douglas Kmiec, a Constitutional Law professor at Pepperdine University in Malibu, California.

Welcome to you sir.


HUME: First of all, it appears to me from what I've read in the opinion, and it goes on for some length, that this is basically an equal protection under law decision. That the court ruled that marriage has protections and benefits that are conferred by the state.

And that to deny that to gay couples, as it puts here, "barred access," it says, "to the protections, benefits and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law."

Have I got that about right? I mean that is the wording. Is that essentially equal protection of the laws?

KMIEC: Yes. That's the claim. But it is also very much an example of raw, judicial activism.

HUME: How so?

KMIEC: To apply equal protection, one generally asks is there a fundamental right at issue? Is there a suspect class? And if neither of those are present, then one defers to the legislature, and asks merely for a reasoned or rational judgment.

HUME: Well, what is missing here in your opinion, the fundamental right or the suspect class?

KMIEC: Well, both are missing.

HUME: How so?

KMIEC: What the Supreme Court of Massachusetts has done is take the fundamental right of marriage and redefine it. States have always defined marriage as having multiple purposes, as promoting procreation of promoting the proper direction and rearing of children, of being a stable kinship environment for the organization of culture.

And what Massachusetts does is basically say it is merely a personal lifestyle choice that deals with autonomy and individuality. And of course, that is a very thin conception of marriage. It is part of it. But it is not the whole of it. And as a result, what this court did was basically substitute its judgment for the judgment of the people of Massachusetts. And really it is at odds with the people of the United States in general.

HUME: Well, now without a constitutional amendment, it would seem impossible to change the state of play in that state, the state legislature has been given 180 days to fix the law, which presumably it will do eventually, if not immediately.

The question now is can you go to -- can you go to Massachusetts, get married, and then fly back to Arizona or Illinois, or somewhere else, and be recognized as spouse and spouse? The Defense of Marriage Act (search) out there in a lot of states, I don't know if those two have them. But there's a federal Defense of Marriage Act, which basically says that a gay marriage, recognized in one state is not necessarily recognized in another. What about that? Will that -- is that going to control here or not?

KMIEC: Well, you are right, Brit, that the people of Massachusetts, if they are going to change their local law are going to have to act by constitutional amendment. The court gave them no other choice.

The broader implications are what does it mean for the rest of the nation? And you put your finger correctly on the Defense of Marriage Act, which was enacted in 1996 overwhelmingly by Congress, which does two things. It defines marriage for purposes of federal law as a man or a woman and exclusively a man or woman. And says that no state is obligated to recognize a marriage -- a same-sex marriage entered into by another state.

Congress has authority under Article Four of the Constitution, the so- called Full Faith and Credit Clause to define what judgments from another state will be given effect. Now in general...

HUME: What it says is -- let me interrupt you just for a second because there seems to be some argument for that. Excuse me for looking sideways here. But the language says, "Congress made by general laws prescribe the manner in which such acts," these are the acts of states, "records and processing shall be prove and the effect thereof or approved in the affect thereof."

My question is, is Congress empowered to say which of acts are to be recognized or just the manner by which they are to be recognized?

KMIEC: Well, as you could tell, it is a little bit of a disjunctive in the phrasing. The one side, the same-sex side is going to argue that it is merely a procedural thing and that they can only establish how judgments are recognized and not exclude a particular...

HUME: This is headed for the Supreme Court, isn't it?

KMIEC: Without a doubt.

HUME: Thank you, sir.

Copy: Content and Programming Copyright 2003 Fox News Network, Inc. ALL RIGHTS RESERVED. Transcription Copyright 2003 eMediaMillWorks, Inc. (f/k/a Federal Document Clearing House, Inc.), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon Fox News Network, Inc.'s and eMediaMillWorks, Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.