 a show where we explore a variety of people, events, topics, feeling our nation, city, state, and world. And we are honored to have Justice Stephen Levinson on again, and a follow-up to some programs that we did last year. So we're already here in 2021, which has started off with a bang, not a whimper. We had a very interesting year last year, and we're off to a big start this year. So welcome back, Judge, and thank you so much for being here. Well, thank you so much, Winston. It's always a pleasure. So, yeah, just to, you know, we're obviously today is January 11th, 2021. Before we get into the bear versus loo and stuff and marriage equality and where that's all going, what's on your mind right now? Anything that you want to just share that's on top of your head? Well, one thing that may be on top of the list at this point is that it just so happens that tomorrow is my sweetie's birthday. So, you know, that's got to be something to think about. Otherwise, I mean, there's just so much happening day to day on the presidential transition front, much of which one never believed would actually happen in our country. But that's another subject, I think. It is. And maybe we can get into that a little bit later today, because it's all sort of wrapped up into our nation as a rule, as something that respects the rule of law, isn't it? And our laws are so central to all of this in the Constitution. And these are all swirling around. And I stayed up quite late just to see the Senate coming after the coup attempt. I'm not sure how you're you're terming it. But on the 6th, I guess it must have been early in the morning of the 7th when they finally did count all the electoral college votes. But I think a lot of Americans are probably reading very closely, what are these amendments to the Constitution? And how does this play in it? And do people buy into it anymore? Are they believing it? Are they feeling disenfranchised? These are really important questions that we've got to address as a nation when you have exactly what's happening this week. So are you remaining optimistic that our nation remains a rule of laws and that we respect our basic constitutional premises? Well, systemically, I think the United States remains a nation of laws. A major problem is that lots and lots of people don't know what the law is or don't care. But, you know, we're beginning to worry about whether we can hold it together. I think we're going to hold it together. I don't think that any coup d'etat will even come close to being successful. But the real question is what's going to happen as a result of the events that have already transpired. And we'll know some of the important things very, very soon, I think. House is going to impeach the President for the second time probably on Wednesday. And the article has been introduced. And the predominant view seems to be that they'll actually take a vote on it on Wednesday. And it appears that the votes are there to impeach. But remember, an impeachment is just a charge. It's not the conviction of a high crime or misdemeanor. It doesn't result in the President leaving. Of course, the President is leaving on July, I mean, on January 20 anyway, which is nine days from today. And so all of that will clearly shake down after the President has already left office. Yes. And I've seen some things to the effect that maybe they would hold this until after the first hundred days of Biden's administration. Well, that was representative Clyburn's suggestion. He's the number three ranking Democrat in the House of Representatives. Part of the idea is that they want the Senate to be able to take up President-elect Biden's cabinet nominations for confirmation. And it's like walking and chewing gum at the same time. The confirmation process is lengthy. There are a lot of people to confirm. And they don't want that interrupted by some other distraction. So the idea is put off the presentation of the article of impeachment by the House to the Senate until after the Senate has dealt among other things with the cabinet confirmations, and then they can take up the trial then. It also seems as though that process isn't going to take nearly as long as the first go-around did. But what will happen remains to be seen. Yeah, I think whatever it is, we have a lot of serious shoring up to do of our Democratic norms and processes. Well, we thought we're norms and processes. These need to be strengthened and perhaps some serious reinforcements done to these things where if a cabinet member is called to testify before Congress that they need to go and testify. They need to answer to the people and so many other topics about military control. I'm interested to see what the details are. And we will find out all of this while the rest of our lives stuff will come out. I don't know how long it took over for the nation to get over the trauma of Nixon, but it seems like this is much worse. Well, I remember it took a while. But at least for the next four and hopefully eight years, we won't be seeing cabinet members denying or ignoring defying requests by congressional committees to testify, much less ignoring subpoenas to testify, which was pretty alarming when it happened. There's so many so many norms that have been violated in this administration. And I share your conviction that we're a strong and big ship. And while we've taken some serious blows, I think we can, if we want to look at it positively, we can thank the outgoing administration for showing us just where these gross inadequacies and weaknesses are that need to be short up. Most people thought could never really be taken advantage of in a country like ours. So that's the positive spin on it. And I like to be optimistic about this, but we shall see. And as time goes by, but every day, every hour we get some new information on here. So exciting times. But I did want to follow up on where we're looking specifically at a very narrow area of law for a lot of people, but not for others. And that is this intersection where you had a very important role in the 1991 Bear versus Lewin loss, where the Supreme Court of Hawaii, where you wrote the opinion held that denying access to marriage equality amounted to sex discrimination under the Hawaii State Constitution's Equal Protection Clause. And so of course, this set off the shot hurt around the world as we talked about in our other shows. So viewers, if you haven't seen it, check out our first, second and third installments of this. And then it moves on to Windsor in 2012 and Obergefell in 2015. And in Windsor, what did the courts essentially say? Well, what was at issue in Windsor was one of the two prongs of DOMA, the Defense of Marriage Act. And that was whether it was constitutional for the United States or the federal government to refuse to recognize for purposes of federal law a same sex marriage that was consummated in a state that recognized same sex marriage. In that instance, the action took place in New York State. A couple of women got married as I recall in Canada. So they'd been married a fair bit of time when one of them died. And the federal government basically responded to that event by submitting a whopping estate tax bill to the surviving spouse who under state law as a married person, I mean federal law, as a married person should not have been subject to paying a state tax on her own house. That she and her wife had had owned jointly. And the Fed said, well, sorry for purposes of the federal tax laws, you ain't married. And she took that to court. And United States Supreme Court struck down the prong of DOMA that allowed the federal government to refuse to recognize a same sex marriage lawfully entered into in one of the states that recognized it or anywhere else that recognized it. And that set off a whole bunch of precedent inside of the federal government itself with regards to social security or any number of agencies in this very friendly administration in the Obama terms where I think they declined to even represent the country. Then this is followed by Obergefell, which is the more recent one that people might have heard of. How does that Obergefell decision then strengthen Windsor? Well, Obergefell or at least the way it was written came as something of a surprise to a lot of people. This was an appeal at which the question was squarely placed before the United States Supreme Court whether as a matter of federal constitutional law, particularly under the federal due process clause and the notion of equal protection, which was kind of imported into the Fifth Amendment to the United States Constitution because there is no express equal protection clause in the federal constitution that's directed to the federal government. The Fourteenth Amendment is directed to the state governments. So the question was, do same-sex couples have a right under the United States Constitution to marry when they are otherwise eligible? And in a five to four decision, Justice Kennedy writing for the majority himself and the four liberal members of the court at that time, that in fact there was a right under the United States Constitution both with respect to equal protection and due process for same-sex couples to marry. Justice Kennedy employed an analysis that basically was brand new. No other court had gone about approaching an equal protection problem the way that Justice Kennedy did. And to this day there are probably a lot of people, myself to some extent included, who still don't understand exactly what he was saying, but it was clear what the bottom line was. One thing that was very important to him in his analysis were what he called dignitary rights that lived in the right to equal protection and the right to due process. And he was very much concerned about the emotional and other impacts that prohibiting same-sex couples from marrying have or would have on their children, for example. And basically what Justice Kennedy decided was all of this just is not fair. And therefore under the United States Constitution there is a right of same-sex marriage. Interestingly, in a footnote that was dropped in the opening paragraph of Justice Kennedy's decision there is a direct citation to Bear V. Lewin. So he begins the story as to how the issue developed in the United States at the beginning and the beginning was Bear V. Lewin. And this, which is, so he's building up his case, well his approach may have been more novel than traditional jurisprudence. It's rooted in that the conclusion was correct. I think that as I've been from a layperson reading it that there were some areas that might be explored by the opposite side, foes of equality in the future, but that remains to be seen. And I think there was a lot of and still is trepidation about the changing composition of the court since that case, which was I believe 2015. So we had Justice Kennedy retired. We had Justice Ginsburg who was obviously a very important cultural touchstone for many people and quite a significant jurist in the history of this nation pass away. And we saw her, you know, but shamefully her appointment just ramrodded through the Congress, the Senate very quickly with Amy Comey Barrett. And it's interesting because we've got some cases coming up before the courts, but we haven't seen anything just yet right now. But there were a couple cases this summer where the courts found that it was illegal to discriminate against folks in employment or sexual orientation or gender identity. And that that was upheld, which surprised me when that came out. It could have been stronger than that, but we haven't had a comprehensive challenge to giving this passed into a law like an ender, which we could do. And we'll see what happens with now the Senate at 50-50 and with Kamala Harris, the siding boat and Joe Biden in office and obviously the House of Representatives there. So I'm hopeful that that will pass. But as far as these other, I think, questions that are probably at the touchstone of things is the idea of religious freedom or religious exemption to these laws, the so-called rifras, whether they're national or state. So there's a case working its way through right now, which I believe is Fulton versus the city of Philadelphia. And I guess the gist of it is that a Catholic adoption agency or foster parent agency wants to be able to discriminate and not place children with gay couples because it's against their religious freedom. And we just saw that even on January 8th that the Trump administration allows adoption agencies this right, they said they changed the rules and they said that the Civil Rights Act does not require them to ban discrimination against LGBTQ people. This was just passed right now. So if the Equality Act is passed, I'm sorry if I got the Equality and Equality Employment Non-Discrimination Act mixed up earlier. But right now we have this new administrative rule which says you may discriminate if you are receiving federal funds and it's working its way through the courts right now. What is your take on this and how do you think this is going to shake down with the new Supreme Court composition? And how do they decide what takes precedence? Equality of folks on sexual orientation or freedom of religion? And this is obviously, you know, the two very important concepts in the law. How do we decide this as a people? Well, to begin with, I mean, I haven't followed the matter that you just described in which the Trump administration apparently issued an executive order. Was that what it was, Winston? Yeah, it just came out on the 8th. So that was Friday? Yeah, the 8th out and they said they could refuse to the religious, they would extend religious exemptions if folks wanted to refuse to work the same sex couples or parents of minority religions as well. So as a general matter, executive orders have shorter shelf lives than statutes enacted by the legislature or Congress do. What one president decrees by executive order, the next president can undo. And over the course of the Trump administration, we saw that happening on numerous occasions with respect to executive orders that President Obama had issued. So if I were a betting person, I would feel comfortable placing a fair bit of money on the proposition that an executive order that permits discrimination based on the sexual orientation of people is not long for this world. The Fulton matter that is pending in the United States Supreme Court I think really goes to the heart of where the action is probably going to be in the immediate future. I should say up front that for what it's worth, I personally do not believe that by virtue of the change in composition of the United States Supreme Court that Obergefell is in danger. I don't believe that the United States Supreme Court is going to overrule the right of same sex marriage under federal law. Too much water under the bridge on that subject, too many people in reliance on that have gotten married. And I haven't seen any real indication coming out of the United States Supreme Court, even the reconstituted court that we've got now suggesting that there is a real risk of the world coming to an end in terms of same sex marriage. Where I think the action now lies is in the arena of the extent to which the right of free exercise of religion would permit discrimination based on sexual orientation to the disadvantage of married same sex couples. So for example in Fulton what happened was that the city of Philadelphia by policy prohibited social service agencies with which it was contracting and which agencies among other things placed children out to foster parents based on stated criteria of eligibility. The city prohibited such agencies from refusing to place children with foster parents who were same sex. And Catholic social services of Philadelphia filed a lawsuit challenging that policy when the city of Philadelphia refused to permit Catholic social services from placing children with foster parents under those conditions. And the court hasn't taken any action other than to accept the application by Catholic social services for review by the United States Supreme Court. The federal district court that had jurisdiction over Philadelphia found against Catholic social services. I believe that the Third Circuit Court of Appeals which is the Court of Appeals that has jurisdiction over matters arising in among other states Pennsylvania found against Catholic social services and in favor of the city. So the Supreme Court accepted Catholic social services request for further review and it's interesting to focus on the way that the court verbalized or fray articulated the questions that were before it by virtue of this appeal. As a general matter the court said that one of the questions they were being asked to answer was does the government violate the First Amendment in this case the government is the city of Philadelphia by conditioning a religious agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs. In other words does is the city of Philadelphia violating Catholic social services right to the free exercise of religion when it's still the formal position of the Catholic church whether or not hits the personal position of the pope anymore that same sex marriage is not to be recognized and is forbidden on religious grounds. So the court is asking the question whether denying Catholic social services the right to place children out for it to foster parents because Catholic social services won't place kids with same sex couples by virtue of their religious beliefs is unconstitutional. And the other major question that the court is asking is saying that it will have to decide by virtue of this appeal is whether it should revisit a decision that it handed down in 1990. This was a six to three decision written by Justice Scalia called Employment Division of the Department of Human Resources of Oregon versus Smith. What happened in the Smith decision was that a number of Native American people who had been fired from their jobs applied for unemployment compensation. But and it turned out that the state of Oregon had a law that disqualified employees from access to unemployment compensation if they had been discharged for work related misconduct. And in this case the work related misconduct that had resulted in the applicants discharge was the fact that they were going to work high on peyote. And the applicants for unemployment compensation took the position with the state of Oregon that we are members of the Native American church and in the Native American church smoking peyote is a sacrament. And so under the the free exercise clause of the First Amendment to the United States Constitution we have a right to smoke peyote. And if we're a little high on it at work so long as we do our jobs that's just tough. Our employers don't have a right to fire us for that reason and therefore we are legitimately unemployed at this point and we're entitled to unemployment compensation. And so what the Supreme Court did in its majority opinion through Justice Scalia in which interestingly Justice Stevens was one of the more liberal members of the court at that time joined fashioned a new test for when the a state can or when the United States can essentially disregard a religious doctrine in enforcing a law that would appear to infringe on someone's right of free exercise of religion either by saying you can't do something you may not do something that your religion requires you to do or encourages you to do by virtue of religious doctrine or whether the argument is I don't want to do something because my religion says I shouldn't but the law says I must and that test was this if the law that the person is complaining about is neutral on its face isn't aimed at any particular group of people and is a law of general applicability is to say applies to everybody then the right of free exercise does not really relieve a person of complying with the law on the basis that the law forbids something that the person's religion requires or the law requires action that the person's religion forbids what it comes down to is is the law one that applies to everybody equally it's a general application and is it neutral on its face in other words on its face it's not it doesn't have any group or person in mind that it's trying to discriminate against and so in the Fulton versus uh city of Philadelphia case the court is going to use that appeal as an opportunity to reconsider whether the Smith test should be changed or followed in its present form in the future if the Smith test is not going to be altered then it would appear that the city of Philadelphia's policy against discrimination against same-sex couples is a is a policy of general applicability it applies to everybody it prohibits everybody from or at least all contractors with the city from discriminating on the basis of sexual orientation or the fact that they are same-sex couples as a betting man would you say that's going to be the conclusion of the court if you were betting I well I think the court is going to say that it is sticking with the Smith test and so that's when the bigger question kicks in and that is Smith test or not uh had a governmental entity violate a person's right to the free exercise of religion or a person's right to what some of the conservative members of the court are calling religious liberty when to comply with the government's requirement would contradict the the the uh social service agency's religious beliefs it's uh and it's it's it strikes these I mean these are very important issues and I I think I will as they as they come out I would love to be able to discuss them further we're of course we're out of time and as soon as we begin we're out of time but I um I'd like to ask you back again of course as often as you'd be willing when we can talk about other things like the rift rest of religious freedom acts and and these are and how when these cases come down what the implications will be because there's so many other cases too do do the parents have a right to force conversion therapy on their foster kids a whole bunch of different stuff coming out um that that's that will be here shortly uh we did have I just wanted to mention a some fan mail coming in and one you you asked a question that we got which was with the Supreme Court now dominated by religious conservatives how do you think how secure do you think same-sex marriages and you said you felt it was probably pretty secure under Obergefell um the uh yeah I I just don't believe based on what I've read so far coming out of the mouths of the conservatives on the Supreme Court that uh that the right of same-sex marriage is going to be overturned and I don't think that's going to happen and that's uh it's heartening to hear that uh the second part of the question we got was will you please write a book about your amazing role in furthering LGBTQ marriage equality well uh we've talked about this before it just so happens that my good friend professor William Eskridge of Yale University has written the book I mean of the history of same-sex marriage worldwide uh our part of it is is chronicled in the book uh Bill Eskridge spent a lot of time with me a number of years ago uh asking me questions about how uh Bear v. Lewin came to be but uh there is so much being written on the subject at this point and I'm uh getting to an age where uh I just don't think that the contribution that uh anything that I would have to say by way of um writing a book would add much to the to the voluminous uh body of material that's already been published on the subject when I was 37 years old I wrote a novel and um after I finished that um I decided that with respect to getting something off my chest I pretty much said what I had to say well I was very glad that Bill Eskridge and his co-author took the time to uh to to do that work I recommend it to everyone and the title of it is marriage equality you can find it online at amazon and I urge everyone who's interested in I mean this is like the encyclopedia Britannica of same-sex marriage history people should buy okay well we'll we'll take your recommendation on that but I think uh your fans and also uh the general public would love for you to write something anyway but we understand exactly about your your your um place in all of this is absolutely secured in history and I am I uh really appreciate you coming on and and reviewing some of these things and as these uh rulings come out and other cases come up uh I would be delighted if you'll come back on and we can discuss them more as time goes by as 2021 unrolls and of course at this point uh we know that Fulton will come down sometime between now and the end of June because that's when the current supreme court term ends so they have to have Fulton decided by then well we will revisit it at least then but if not beforehand um on other matters that come up very good so I I'd like to thank you again for uh for joining us here and for sharing your your knowledge and your wisdom and your and your thoughts with everybody so thank you so much just it's um Robinson thanks so much to you Winston look forward to the next time I look forward to it too and thank you for us here everybody so uh buckle up and uh pay attention read the newspapers this is your nation it's your state it's your city so get involved with it with the topics and uh and educate yourself and become involved for things that you're passionate about in a good way thanks so much aloha