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This week is spring war will wrap up its turn as we wait several potentially landmark opinions on topics and same sex marriage to affirmative action it's all coming down to the wire.
You're out there -- -- Carrie Severino chief counsel for the judicial crisis network and all of -- why judge -- counsel for the constitutional accountability center welcome to -- Shannon -- ask you both are you surprised that these and this announce this level of high profile cases is left at this point.
Well you know take along.
Kinda right these these big opinions that I think -- the court in all of these cases the permanent action case marriage equality voting rights is dealing with the meaning.
Of equality in the constitution across all of these cases that is the big issue.
And so the court -- I'll be looking for is whether the court articulates a coherent vision of equality in the constitution.
Remaining true to the text and history.
Of the fourteenth amendment's equal protection clause which guarantees in broad terms equality of rights for all including the civil right for marriage to.
Very broad language it guarantees -- equality to any person that's black or white straight or gay immigrant or citizen.
Well and it -- in the same sex marriage case they're two of them obviously one dealing with the state measure while dealing with the federal measure.
And -- they have gotten the most attention probably this term.
But as we await to see what the courts when you -- there's a lot of attention being replaced Johnson that remarks by justice Antonin Scalia speaking in function this week saying that.
Did that justice is keeping moral arbiters they aren't religious leaders and so.
They should leave this to the public not specifically mention in this case -- he can't say anything while still pending but saying that.
Tough decisions of a moral nature should be left to the American people what does that suggest to you.
-- well again I think certainly it mean equality is an issue but there's a real question of who gets to decide in these tough.
Questions and that's what a lot of these cases touch on.
Certainly we see that in a prop eight case can the citizens of California.
Decide to define marriage within their state in the defense of marriage act the same thing for the federal government does the federal government have the authority to define marriage.
How why why would they not have that authority for the sake of their own laws.
A -- of the American people through the democratically elected representatives do that so I think that's that the court's gonna be doing just the court take that away from the good people and their representatives.
Or they let this -- play on the political process.
For really contentious issues like we're seeing here I think history shows us that those should be worked out to the political process and not courts really usurping that the people.
We just see a number of states moving forward approving of same sex marriage and and that you don't changing and that respect and so we'll see -- then the justices allow that continue to -- -- our elsewhere.
But it's -- -- that in both the same sex marriage cases it's possible they don't get to the merits there these would want key procedural technical issues.
How does appoint you to think it will be to both sides of this argument if they don't actually go to the -- to -- do something much more conservative.
I think we'll certainly be disappointing to the families and couples who won their marriages to be recognized as just as good as anyone else's marriage.
B a bans on marriage equality really place.
Batch of second class citizenship on gay and lesbian couples their relationships and their families and the constitution prohibits back.
As I think if the court doesn't actually stepped up and decide the merits of this case.
That's -- real disappointment because the constitution takes certain issues.
Out of the democratic process the constitution says no this is so important that we are declaring equality for all persons in the constitution.
And the court held that.
Just about forty some years ago when it struck down bans on interracial marriage.
And it should do so again for gay and lesbian couples who want that scene recognition and to which they are entitled.
That's name recognition under the constitution carries his case different.
Well that question is really whether the constitution did -- that an 1868.
Is that -- the fourteenth amendment meant that these mid American man and a woman is actually.
Not correct that we have to have marriage between.
Anyone who won who was he married that I think that's a pretty long shot thing to say -- 1868 that was what the constitution was amended to say.
It's -- that was -- that amendment was talking about race and I think that's absolutely clear.
What whether we -- country wants to take it another step and change definition of marriage.
That's something that that the political process has to work out we can certainly have another amendment go through talk about that that's not the fourteenth amendment said.
And I think our constitution also talks about which kind of cases the court can decide.
These deep issues here of the procedural issues are pretty sticky and it might just speed at these particular cases have been brought up aren't.
Once that the court Stapleton to decide -- that would be frustrating for everyone after the time and the effort that's gone into these opinions.
All right super quick -- are both excellent lawyers have a lot to say that super quick I wanna mention the affirmative action case which deals with whether a school can use race and -- admissions policy.
This involves the University of Texas at Austin so I have to quickly ask you.
This case it was -- in October it is still outstanding suggesting that's the justices are really struggling with best.
Do you think ultimately race in some way will or won't be allowed emissions policies.
But if the court follows the text and history of the fourteenth amendment bill allow University of Texas policy to go through.
You know at the including the use of race including the use of race that the drafters of the fourteenth amendment pretty originators of affirmative action.
Just after they passed the fourteenth amendment.
They also passed programs that were included that that -- intended.
To allow increased opportunity to African Americans -- particular and they rejected.
Arguments that this race conscious measure was some -- violated the constitution and they also expressly warranted.
Equal protection clause to go beyond race they specifically rejected proposals for language of the fourteenth amendment that would just have.
Limited it to guys that I think of a quick sentence Medicare and -- chief Justice Roberts for a couple years ago the best way to stop discrimination basis of race to stop discriminating on the basis of race we need to have color blind admissions policies.
And that's all that's how we're going to affect the meaning of the equal protection clause truly equal before the law within days -- -- have the answers to all these questions thank you both very much and thank you Shannon.
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