 to out and about. Today is November 2nd, 2020. Whoa, it's the day before the election between Biden and Trump. We are honored again to have Justice Stephen Levinson with us, and we've been talking about cases this Pride Month, about Bear versus Lewin, what led up to it, what came about it after it, and then what we're facing now in the future. So we are honored to have Justice Levinson, who is a Hawaii Supreme Court Justice, who voted the original decision that created the shift in the cultural landscape that was heard around the world and led to marriage equality in so many city, states, and countries around the world. We're honored to have you back, Justice Levinson. You have a very storied career as a jurist and have served on so many boards and commissions. Your contribution to society is very admirable and know-worthy, and also a goal for all of us, so we should be so civically minded. Just to throw out something there, what keeps you up at night these days? Mostly the election. Yes. I mean, whatever else keeps me up at night is just a pimple on the election. Okay. I'll send you from that. I think you probably share that with most anyone saying in the nation who's right here. So we're going to connect the general state of the world from the local to the statewide to the national to the international. Yes. They're all tied together. And as we look back here in five or 10 years on this think-tep episode, we have to remember we're right in the middle of COVID, wherever you've just opened up Hawaii. When we talked about where we left off last time was after the bear versus loon, and then we had the domas coming in nationally, we had a state. It wasn't really called a doma, but it was the change to the constitution. The statute was the Defense of Marriage Act. It was a statute of defense. It was a doma. It was a doma. And that was under the Article 1, Section 23 of the... Oh, okay. That was the... To the Hawaii. To the Hawaii Constitution that the legislature put out for ratification by the electorate in 1998 in which the Hawaii electorate ratified overwhelmingly, basically overruling bear versus loon legislatively. And by changing the rules that governed the analysis at the constitutional level. And then we had some... We followed then the changes that came through and starting in Vermont, Massachusetts, where other states were starting to legalize this. And then I think we ended up where just last time within Hawaii was revisiting this with Linda Lingle vetoing the measure just about on the last day that she could. And then followed by Neil Abercromb. And this was the measure that would have... She would have either signed in the law or vetoed, and she vetoed the state legislatures bill creating civil union in Hawaii. And then she was shortly... And then out of office after that Neil Abercrombie came in immediately after... She re-enacted the civil union bill the next year, which was Governor Abercrombie's first year and he signed it in the law. So it was what there was for same-sex couples in terms of entering into a marriage-like union basically during the years 2012 and 2013. And then shortly after that full marriage equality came to the state of Hawaii in 2015. Right. Yes. In the wake of the Windsor decision that struck down the part of DOMA that provided that the federal government, the United States government, did not recognize same-sex marriage. So after that the government could not... Had to recognize a lawfully consummated same-sex marriage wherever it was lawfully consummated. Couldn't discriminate against parties to that marriage, either how both spouses were alive or after. And then and at the same time the United States Supreme Court handed down a decision that essentially struck down Proposition 8 which was the initiative in California that undid the California Supreme Court decision recognizing same-sex marriage. And prohibiting same-sex marriage in California. So as a result of a fairly complex chain of events, the United States Supreme Court ultimately set aside Prop 8 which therefore restored same-sex marriage to California. Meantime lots of lawsuits were being filed in the federal court seeking recognition of same-sex marriage universally in the United States at the federal level. And that ultimately came to a head in mid 2015 in the Obergefell decision which by a five to four split through an opinion by Justice Kennedy had become kind of the swing boat in many cases that were controversial. The fundamental right of same-sex marriage under the United States Constitution was finally recognized by the United States Supreme Court. Now just to just to re-touch on those. So we have Windsor coming in 2013 and then Obergefell in 2015. So in that interim period lots of lawsuits I think after Windsor there was a lawsuit in every state that still had discriminatory laws in it that just sort of sprung up and said the Supreme Court has found this to be unconstitutional on a federal level therefore it probably is on a state level. I may have overstated with respect to Obergefell. It basically overruled section two of the Defense of Marriage Act and required state B to recognize the same-sex marriage of a couple married in state A who moved to state B. And that was yes right right and that was because of Mr. Obergefell's spouse died and he wanted to be listed on the death certificate in a state that did not recognize his marriage if I'm remembering correctly. I mean a tragic case for both of these involving end of life thickness and death you know couples that have been together a very long I mean their marriage wasn't recognized. Right so the general state of affairs after Obergefell was first that if a state recognized same-sex marriage and a couple married in that state moved to another state the other state had to recognize it too. And also that if a couple were married a same-sex couple were married in any given state the federal government had to recognize that too. And so it then fell to the states that had not yet recognized same-sex marriage or extended the right of same-sex marriage to follow up in the wake of Windsor and Obergefell. Now just to jump ahead here we have had I think just last week we had Amy Comey Barrett sworn in to replace Ruth Bader Ginsburg who just passed away not even hardly a month ago I think and she's obviously represents a different end of this the ideological spectrum in the courts from all that we can gather. It would seem so. And so some people are saying since Obergefell was written we had Justice Scalia pass away we had Justice Kennedy resign we had Ruth Bader Ginsburg passed away so we had let's see it was a 5-4 decision. Two of the five in the majority have one resigned one died and then well injustice Kennedy passed away not long after he resigned so. Oh I didn't realize that he does. I'm making a mistake and but I believe he has. Okay and we're sorry Mr. Kennedy if your reports of your death have been. Yeah if they're mistakenly reported here. Are greatly premature my apologies. Yes it happens it happens but you know it's just one thing to check to check with all your journalistic sources but I and that very note very well maybe I hadn't read that but obviously the replacement in the resignation of the things that matter because they hold the power then. If those states those same states they may have laws that exist right now on their books that were rendered invalid by court decisions so they may it may be in all the typical suspect states it was a lot of them actually you know that the classic you know the alabamas and the mississippi's and tennessee's and all of that if those laws are still on the books let's say marriage is between a man and a woman although maybe it's rendered I'm not sure but the legal term is void or no longer valid or whatnot if there were a reversal of these laws would those would those laws then kick right back in in those states. I I I'm not sure if they haven't been taken off the books they might for what they're worth I mean for example article one section 23 of the hawaii constitution which was that amendment that that was ratified in 1998 that basically gave the legislature a monopoly over the decision whether same sex marriage would be available in hawaii or not is still part of the hawaii constitution and it's also the case that at the end of 2015 the hawaii legislature in its wisdom passed the marriage equality act that recognized and made available same sex marriage in hawaii. It's interesting that the that was just us in 20 years since the the hawaii delma and then to the complete reversal of that but as you say it's in the constitution of the state of Hawaii right now that gives them the power to do that. I gather from what I've heard recently that there are some very archaic statutes still in the deep south that recognize slavery for example. Right right that haven't been taken off the books which you have to wonder why would they have not gone through and purged these old. Who knows I don't know. So just so as we have had this now after Windsor the Obama administration started recognizing same sex marriage throughout all of its laws and agencies whether it was you know in social security and being able to be buried next to your spouse in a veteran cemetery in you know being able to apply for medic care survivor benefits all of those things the thousand rights and responsibilities that come with marriage. Obergefell extends those and requires the states to recognize each other's marriages by understanding that correctly as well as the federal government then essentially overturns Dilma completely. What we've seen recently now is there was a challenge that just came up with Kim Davis and and and Clarence Thomas's dissent in that decision can you give us some background as to who Kim Davis was what this case was coming up and then what the implications are. Sure in the immediate aftermath of Obergefell same sex couples were applying for marriage licenses all over the place including in Kentucky and one of the clerks I forget which jurisdiction in Kentucky is responsible for issuing marriage licenses but Kim Davis was a clerk who was working for whatever Kentucky agency it was I think it may have been at the county level in fact I think it was in Louisville responsible for handing out marriage license applications and she was and if she's still with us presumably still is a devout evangelical Christian and she took the position that it it violated her her fundamental religious beliefs to be a party to facilitating a same-sex marriage and so she simply refused to issue marriage license applications to same-sex applicants and was sued over that and she lost and and the result of that of that decision at the level of a lower court was that same-sex marriage was was the the the law of Kentucky and the law of the land and it was a law of of general applicability and and and was applied neutrally and therefore miss Davis simply had to issue licenses to same-sex couples just as she would issue licenses to opposite-sex couples but she didn't give up at the lower court level and she ultimately asked for further review by the United States Supreme Court and that by way of what's called a petition for word of writ of certiorari that's the that's a standard avenue for seeking further review in the United States Supreme Court from a decision that was handed down by a lower court and so under the United States Supreme Court's rules they vote internally as to whether to accept an application for writ of certiorari in order to give further review to the matter or to reject it well they get literally thousands of requests every year for further review and these days they're only reviewing about or giving further review to somewhere between 50 and 75 matters a year this past term it was in the in the 50s which was the fewest cases that they had they had agreed to hear and to decide since the end of the civil war by their rules four justices have to vote in favor of granting further review and if four justices with and they don't have to have reasons they just vote yeah i want to give this one further review and if four justices vote yes then the court takes it well in this case none of the of the of the justices voted yes the supreme court denied kim davis's request for further review to the united by the united state supreme court but when a member of the court wants to say something in in the context of a denied request or further review there's a procedure for doing it it's not by way of a formal opinion it's by way of what the court calls a statement and just as thomas wanted to make a statement even though he himself had not voted to grant him davis further review um and so he made one and justice alito agreed with what justice thomas had to say so he joined in justice thomas's statement i i think it would be enlightening and helpful for me to read a few lines from justice thomas's statement because i think it really speaks volumes about what justice thomas would like to see in the future in the face of obergefell and and among other things this is what he wrote you know bergefell the hodges several members of the court noted that the court's decision would threaten the religious liberty of the many americans who believe that marriage is a sacred institution between one man and one woman if the states had been allowed to resolve this question through legislation they could have included accommodations for those who hold these religious beliefs and then at the end he says by choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the first amendment the court has created a problem that only it can fix now i don't see any language in justice thomas's statement suggesting that he would like to see obergefell overruled in other words i don't see anything in his statement to the effect that if he could determine the supreme court's decision that the recognition of a fundamental constitutional right of same-sex marriage would be overruled so i don't read justice thomas's statement joined by justice elito as a threat to obergefell at least with regard to the constitutional source now the federal constitutional source of the right of same-sex marriage but what i do see in his statement is a desire for the implementation of what he would have liked to have seen in a full-blown decision in a case like master cake or masterpiece cake shop from back in 2018 uh in which by a seven to two split the united state supreme court ruled that a baker in call of in in colorado should um was was wrongfully deprived of well no let me let me drop back 10 yards um it's my understanding that colorado has a public accommodations law uh similar to hawaii's public accommodations law and that's a very good thing hawaii has maybe the best public accommodations law in the country and essentially what it says is that if you enter the stream of commerce if you go into business in hawaii uh and provide goods or services or what have you to the general public you cannot discriminate against uh uh uh as to who you provide your goods and services to on the basis of a person's race a person's religion a person's uh ancestry uh and in hawaii's case expressly a person a person's sex or a person's sexual orientation so that if a church um runs a business on the side say providing banquet services to the general public which at least in one instance is instance um is happening uh on oahu you may not discriminate against who you choose to provide your services to your banquet services because you don't like who you don't like um their religion or you don't like their race or you don't like the fact that they're a same-sex married couple um Colorado had uh has a as I understand that a public accommodations law like that and so uh here you had masterpiece cake shop at bakery uh owned by a guy who felt very strongly that marriage was intended by god to be a union between a man and a woman and so when a same-sex couple uh came to his shop and asked him to bake a wedding cake celebrating their same sex sex marriage he said i'm not going to do it well what happened then in Colorado is essentially what would happen in hawaii the aggrieved couple who didn't get their wedding cake went to the Colorado civil rights commission and filed a complaint and ultimately the Colorado civil rights commission found for the couple and against master peaks piece cake shop but in the course of doing that a couple of the members of the commission made some comments on the record which could be could have been construed as um exhibiting hostility toward the fact that the owner of masterpiece cake shop held these religious beliefs and disparaging those religious beliefs now after the Colorado civil rights commission found in favor of the couple the cake shop then appealed to the Colorado in the Colorado court system and the Colorado court system affirmed upheld the decision of the civil rights commission you would think that that that by doing that and the courts didn't exhibit any hostility to the fact that the owner of the bakery had certain religious beliefs that that would have cured any purged any taint that had been injected into the proceeding by hostile remarks made on the record by some civil rights commissioners in Colorado but a a seven member majority of the United States Supreme Court in a decision written by Kennedy and I think joined well I know joined by justices Brier and Kagan you know half of of the liberal wing of the Supreme Court ruled that under the circumstances um the the owner of the bakery was not treated fairly because members of the civil rights commission who were deciding the the same sex couples appeal to the civil rights commission were exhibiting bias against the religious beliefs of the of the baker now justice thomas's decision and kim davis raises a very interesting question I mean in masterpiece cake shop in which in which he wrote a very strongly worded concurring opinion agreeing that the baker shouldn't have been required to bake the cake and concurring in part in the judgment because he would have gone even further than the majority did I and would have said that the the baker's religious beliefs were protected as a core fundamental constitutional matter by the first amendments right of the free exercise of religion and he shouldn't have been required to bake the cake under any circumstances if he didn't want to just as thomas also noted as a matter of interest that the baker had made it very clear that he would have baked anything else for this couple he would have baked a cake for them as long as it wasn't a wedding cake anything anything but a cake that would expressly celebrate a same sex marriage he was willing to do for it and it was a very interesting case too I don't know what what what the eventual outcome of that this but it gets into this whole rift well ended there I mean the I think uh he didn't bake the cake and I mean this was long after the wedding was performed I think cake had been baked by somebody else okay yeah it's very interesting to get into these rift risks those at the religious freedom laws at whether I'm sorry here's the thing now um what what uh thomas seems to be saying in his statement and kim davis is okay the court ruled that there's a fundamental constitutional right of same sex marriage at the federal level but the court went overboard in terms of forcing everyone who disagrees on religious grounds to accommodate that and so I think what we have in store for us are any number of cases coming down the pike in the future in which people will challenge whether they are required to participate in particular ways and the celebration of a same sex marriage such as by baking a wedding cake for the couple such as by providing banquet services for the couple in the wedding party and the like and um when you put the first amendment free exercise clause right of the free exercise of religion on one side of the scale and a state public accommodation law on the other side of the scale I suspect that just as thomas and and colleagues who think as he does are foreseeably likely to decide that public accommodations laws may not be enforced to the detriment of people's right of free exercise of religion it's a it's a huge topic in and of itself I've seen some troubling cases that have come up some with social service providers in texas where they are now allowed to discriminate against gay people they just say we don't have to provide you with social services that's crazy and that's I'm sure it'll be challenged but I think as you said as they wind their way through the courts and we find these which liberty is more respected or upheld I would I would really appreciate if you could if we could have another shows and or shows in the future as these come up and we sort of dissect them and look at them because it's obviously coming down the pike yeah I'd be happy to do that be happy and as I as always this time has escaped us we've spent more than half an hour on this but your your basic you know understanding your advanced understanding but your your basic input into this entire process is so tremendous and it leads us exactly where we are today with these rulings about kim davis and what's coming down the pike and it's just sort of what's behind door number three is kind of scary for a lot of folks right now and understandably so these laws are not um you know they're they're if they're set in stone and the concrete's still drying um and a lot of them it feels like so I know we're over time but I know we are so okay yeah we'll save it for next time I have a sense as to what it would take I mean if if in the face of justice thomas's position to prevent uh discrimination against same-sex couples in the future in the matter of public accommodations availability of goods and services in the spring stream of commerce I have a sense of what it's going to take to protect same-sex couples that way and we can talk about that when we have some new cases I would I would be delighted to do so and I sincerely appreciate your time and giving of your thoughts and opinions and wisdom in all of this as yes you did from all of your entire legal career so we are a nation of laws they when one day you can do something the next day you can't or vice versa we are a nation of laws it's very important that we understand what these things mean and I think we're seeing that in the civic sphere very acutely this year with people voting and we will hope for positive results from here on out from tomorrow and on onward that we can understand our systems our protections our freedoms our liberties let's all think very good thoughts I'm thinking very good thoughts and I appreciate very much you coming on the show justice levin said thank you which then pleasure is always going to do something together and all of you out there you know appreciate your rights and they don't just stand up for themselves you've got to go out there so educate yourselves and get involved and I will say goodbye for all of us out and about and think kawaii thank you justice levin said thank you Winston