During live coverage of the Supreme Court's gay marriage rulings on
Wednesday, NBC legal analyst Lisa Bloom could barely contain her
enthusiasm at the decisions overturning the Defense of Marriage Act and
Proposition 8: "There is no question that this is a sweeping historic decision for gay rights....I
think this is only the beginning, by the way. This is the decision
today, but this is going to engender many more cases to come to further
protect gay rights." [Listen to the audio ]
Bloom went on to praise the liberal justices making up the majority opinion: "...all three women on the Court voted with the majority, they tend to be the pro-civil rights bloc." She further declared the cases to be "some of the biggest civil rights issues of our time."
Near the end of the coverage, Today co-host Savannah Guthrie
worried that gay rights activists in California may suffer
"disappointment, because in that Prop 8 case the Court did have the
opportunity to issue a sweeping ruling that would have affected gay
couples across the country. It didn't do that."
Bloom reassured her: "Well, that's right. I would call this day a home run for gay rights. It's not a grand slam, they could have done more, but they certainly could have done a lot less. And this is a court that has done less on other civil rights cases this term."
Here are excerpts of Bloom's June 26 analysis of the decisions:
SAVANNAH GUTHRIE: And let me turn to Lisa Bloom, our legal analyst. And I think what is surprising here is the breadth of the decision, five votes to say that this law, the Defense of Marriage Act, violates equal protection. And the question is, what will that mean then for the next case, which is a direct invitation to the Court to essentially say that any ban on same-sex marriage would be unconstitutional.
LISA BLOOM: There is no question that this is a sweeping historic decision for gay rights. And let's keep in mind, it was only ten years ago that the U.S. Supreme Court in Lawrence v. Texas struck down state laws that criminalized private consensual gay sex. And so in ten years we've gone from that to saying that the federal government must extend benefits to same-sex partners, the same as they would to heterosexual partners.
GUTHRIE: Meantime we want to turn to Lisa Bloom again, our NBC News legal analyst. And one of the hold ups in the Court is that Justice Scalia is reading a rather lengthy dissent from the bench. Number one, that's something justices do when they feel particularly impassioned about a case.
BLOOM: They've been doing that all week.
GUTHRIE: And let me read you a quote of what he said. He says, "This court's opinion today," talking about the one striking down DOME, "spring from the same diseased root and exalted notion of the role of this court in American democratic society." In other words, Justice Scalia is saying the Court shouldn't have been involved here, should have left this issue to the democratic processes.
LISA BLOOM: Well, of course the courts have been deciding equal protection cases for over a century. And the advocates of gay marriage would say this is in keeping with that. That equal protection has struck down laws that discriminated based on race, based on gender, and now based on sexual orientation.
GUTHRIE: Well, obviously this an issue that came up. We think of another big sweeping ruling in the Court's history, Roe vs Wade, that is one that, of course, took the issue of abortion out of the political process, out of democratic process. And even a Justice like Ruth Bader Ginsberg has later said, maybe the Court shouldn't have stepped in that way. And it seems that Justice Scalia's dissent talks about that kind of concept.
BLOOM: Well, that's Justice Scalia's and the dissents' argument, but the idea behind the equal protection clause is to protect disenfranchised minorities, like gays and lesbians, from the will of the majority. And is it appropriate for the majority of people in California or elsewhere to vote away the rights, the civil rights, of a small protected class? I mean, that's the issue. And apparently five of the majority have said no, the equal protection laws squarely apply to gays and lesbians.
I think this is only the beginning, by the way. This is the decision today, but this is going to engender many more cases to come to further protect gay rights.
GUTHRIE: We turn to Lisa Bloom. It's interesting to see who wrote this decision. Justice Kennedy so often the swing vote, and when you look at the Court's issues, the Court's cases where they've actually touched on issues connected to same-sex relationships, Kennedy authored the two cases that are relevant.
BLOOM: Right. We knew he would be the swing vote, and he was the swing vote. I would also point out that all three women on the Court voted with the majority, they tend to be the pro-civil rights bloc. I also think it's interesting, we were talking about the political and the legal working together, you know, the reason why there is no standing in the Prop 8 case, if indeed that's what the Court rules, is because the state of California refused to defend it in court, just as the federal government refused to defend DOMA. So these laws were passed, a little bit of time goes by, and then the government says, "You know what? We're not going to defend this anymore," and that has a significant bearing on the outcome of the legal cases.
LAUER: Look at the even, even bigger picture and just look at the week that we're having here at the Supreme Court. When you think about the decisions that have come down, some have said it's perhaps the most historic week in the Court's recent history, with Affirmative Action, the Voting Rights Act, Proposition 8 still to come, DOMA. Put it in perspective.
BLOOM: Right, they have had to grapple with some of the biggest civil rights issues of our time. And the Court has done what they're supposed to do. They're supposed to look very, very carefully at the law and sometimes make really meticulous decisions that are hard for us to understand. We would like broad pronouncements, apparently we have that in the DOMA case. In the Prop 8 case, probably less so, it will be decided on technical grounds. What that will mean though is that gay-
LAUER: Similar to the Voting Rights Act, in one area.
BLOOM: That's right, like the Voting Rights Act, and even the Affirmative Action decision earlier this week.
GUTHRIE: But at the same time, do you think you could pull these three cases we saw this week together and put them in an ideological box? I don't know that you could.
BLOOM: I think it's different, I think they're certainly treating gay rights differently than racial – the rights of racial minorities. I mean that's a difference. I think what the Court was saying yesterday in the voting rights case, is that 1965 is not 2013, we've got to keep up with the times. Well, boy, if you want to talk about keeping up with the times, how about ruling in favor of gay marriage? I mean that's something that's a very, very modern issue. And public opinions have changed so much in the last ten years on that. And the Supreme Court, you know, they're human beings too, I'm sure they're opinions have changed as well.
GUTHRIE: There's a huge practical impact to the decision we already have, striking down the Defense of Marriage Act, because now of course the federal government will be required to recognize same-sex marriages in those states that allow it, which will mean they have to confer those federal benefits, for example.
BLOOM: You know, this is good work for civil rights lawyers and for family lawyers because there's a lot of unanswered questions still remaining, like gay divorce and recognizing other state's gay marriages.
And as we turn to Lisa, that may be the lack of reaction, a function of not quite understanding what the Court did here, or maybe it is disappointment, because in that Prop 8 case the Court did have the opportunity to issue a sweeping ruling that would have affected gay couples across the country. It didn't do that.
BLOOM: Well, that's right. I would call this day a home run for gay rights. It's not a grand slam, they could have done more, but they certainly could have done a lot less. And this is a court that has done less on other civil rights cases this term. And let's also be clear that the Ninth Circuit Court of Appeals, that's the case that was decided, the gay marriage case that then went up to the Supreme Court, they decided it on very narrow grounds, hoping that it would be upheld by the Supreme Court in just this way. So there's a certain amount of legal gamesmanship that's gone on from the beginning.
GUTHRIE: Alright, Lisa Bloom, thank you for being with us as we watched these cases this morning.