The PBS Series on Constitution Surprises with Unbiased Debates, Including Gay Marriage

The new four-part series Constitution USA embodied the conglomeration of Peter Sagal, one of the more left-leaning NPR hosts, and PBS, which has been scrutinized for its abundance of liberal programming, so one might have expected this series to just be another partisan broadcast espousing solely liberal viewpoints.

However, in a rather pleasant surprise, the show covered most issues in an unbiased, nonpartisan manner. For example, when discussing the issue of homosexual marriage, Sagal interviewed proponents from both sides of the debate on this matter of contention. [Link to the audio here]

In the show’s four episodes, NPR personality Peter Sagal, host of the weekly game show “Wait! Wait! Don’t Tell Me,” goes on a road-trip across the country to report and evaluate what the founding fathers intended through the Constitution, how it has evolved over the years, and how the Constitution fits into modern American culture. He traveled to many cities and small towns in order to interview both everyday citizens and scholars about how they think the Constitution can be applied to modern issues including free speech, voting rights, separation of church and state, affirmative action, and even homosexual marriage.

The issue was of gay marriage was first introduced through a discussion of the 14th Amendment and what is included under its “equal protection” clause. A number of citizens believe that the right to marry a person of the same gender should fall under that protection. So, Sagal traveled to Berkley, California in order to interview Kristin Perry and Sandra Stier, a lesbian couple who have become central figures to the homosexual marriage debate since their decision to sue the state of California to have Proposition 8 declared unconstitutional. Proposition 8 was a ballot measure in which California voters democratically voted to amend the state constitution to define marriage as between a man and woman, effectively outlawing same-sex marriages.

In their interview, both Perry and Stier contended that the right to marry anyone of their choosing should be covered by the 14th Amendment the same as the “right to drink out of water fountain” or “drive a car.” Perry even went as far as to declare that she did not believe that the “we” in the Preamble did not apply to her because she was gay.

At one point, Sagal brought up the fact that the citizens had democratically decided to keep homosexual marriage illegal and that it might be undemocratic to take away those results. The couple responded that they did not “believe that [the voters] had the right to take away our rights.”

Sagal did also mention that there was a case that linked marriage to the 14th Amendment. However, that case, Loving v. Virginia, declared that anti-miscegenation laws, which outlawed interracial marriage, were unconstitutional and ruled that racial discriminations could not play a deciding factor in the legality of a marriage.

To the credit of PBS and the producers of the show, they did not end their coverage of the issue there. They decided to be unbiased in their coverage and present the opinion of someone who does not believe that the 14th Amendment applies to homosexual marriage.

That person was Dr. Robert George who is the McCormick Professor of Jurisprudence at Princeton University and a senior fellow at a number of conservative institutes. He argued that the 14th Amendment and the Loving v. Virginia ruling do not apply to homosexual marriage because they apply to laws that are rooted in bigotry. Anti-miscegenation laws were clearly rooted in bigotry whereas conservative views of marriage between a man and woman are not. In fact, George claimed that “no one cooked up the conjugal conception of marriage … on the basis of bigotry” and to imply otherwise would be “false to the historical facts.”

George did say that he believed that proponents of gay marriage “can compete for their view, and if they can win a majority of their fellow citizens in a fair debate, then their views should prevail.” However, their views did not win the support of the majority of voters in California, and George does not believe that either side should be able to “go into court to short-circuit the democratic process,” which is what Perry and Steir’s suit is attempting to do.

For reference, the transcript of the discussion of homosexual marriage is provided below:

CONSTITUTION USA with Peter Sagal

May 21, 2013

PETER SAGAL: The 14th Amendment guaranteed everyone "equal protection of the laws." That was unprecedented. But even today, a century-and-a-half later, not everyone feels equal. Kristin Perry and Sandy Stier make their home in Berkeley California with their sons. Kris and Sandy have been a couple since 2000, and for the past decade they've been riding a matrimonial roller coaster.

SAGAL: So you two got together when?

KRISTIN PERRY: We met in 1998. No, we met earlier than that.

SANDRA STIER: Right, we met in 1997.

PERRY: We met in 1997.

SAGAL: You're smiling. You're not gritting your teeth. You're smiling.

STIER: No, I am smiling! It was a fun meeting!

SAGAL: It was a fun meeting.

SAGAL: In 2004, when the mayor of San Francisco announced that he would give out marriage certificates to same-sex couples, Kris and Sandy practically sprinted down to City Hall. They were among the first to get married. But when they got back from their honeymoon, they found that the city's action had been overturned, and their marriage was null and void.

SAGAL: Did you have to give back the gifts?

STIER: No.

PERRY: We didn't do that, but it had an effect on us in a more lasting way than we knew at the time.

STIER: It was upsetting for all of us, and just sort of oddly humiliating. You know, here we had this great celebration with all our family and friends-- and then to have it taken away?

SAGAL: Then, in 2008, California voters approved Proposition 8, a ballot initiative amending the state constitution, to declare that marriage would only be legal between a man and a woman. But "Prop 8," as it was called, soon faced a legal challenge. Kris and Sandy filed suit, and the case would end up in the U.S. Supreme Court.

SAGAL: Becoming plaintiffs in a federal case is a pretty big deal. That must have been a difficult decision to go ahead with.

PERRY: It's been incredibly different to take on a public role versus just privately suffer. That's what it's been like for many, many years, since 2004. We've just sort of privately suffered, feeling like we'll never get to be like other people.

SAGAL: What about the idea that these guys are like, hey, this is my state, we had an election, I voted my conscience, my side won, and then you're gonna take away the results? I mean, isn't that undemocratic? What about their rights as voters, as citizens of California?

STIER: We don't believe they had the right to take away our rights. We didn't think the voters should have even voted on the issue.

PERRY: You can vote in anything you want if enough of you want to. That doesn't make you right; it just means there were more of you. So if you're a minority, and you're never going to be the majority, you will never win your rights. This is, that's why there's a Constitution.

SAGAL: So, I imagine you guys have had occasion to read the Constitution. Have you read the preamble-- "We the People?" What do you think of when you read that?

PERRY: Oddly enough, because I've been gay my entire adult life, I have had a hard time feeling like it includes me.

SAGAL: Really?

PERRY: Yeah.

SAGAL: So you're like "we the people, " ehh, and you're like, not me.

PERRY: "We the people, "and then in parentheses, I wish I were part of this. I aspire to be "us the people,” part of the "We," and for me this fight for marriage equality is like entry into "We." And without I don't believe I belong, I mean, I don't.

SAGAL: The Constitution, and we've been reading it, doesn't say anything about marriage-- gay, straight, or otherwise. So how can you say that there's a constitutional right to do something you want to do, just 'cause you want to do it?

STIER: Equal protection... it's about equal protection. Because whether it's marriage or something else, we should have the same right to drink out of a water fountain, to drive a car, and to marry each other that anybody else does. So that's what we're really, really fighting for. That's what our case is based on.

SAGAL: Of course, Equal protection is guaranteed by the 14th Amendment. And in fact, there was a landmark case that linked marriage and the 14th Amendment. That was back in 1967, and the case was appropriately named Loving v. Virginia. It involved a couple named Mildred and Richard Loving. At the time, the state of Virginia had an anti-miscegenation law, banning interracial marriage. The Lovings were found to be in violation of the law, and they were ordered to leave the state or face a year in prison.

MILDRED LOVING: I think that marrying who you want to is a right that no man should have anything to do with. It's a God-given right, I think.

SAGAL: The Lovings sued the state of Virginia, and the Supreme Court ruled in their favor.

REPORTER: The Supreme Court says that marriage is one of the basic civil rights of man. Under the Constitution, the Court held today, unanimously, the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by racial discriminations.

SAGAL: The Court based its decision on the equal protection clause of the 14th Amendment. So if the Supreme Court has ruled that the Constitution protects the right to marry someone of any race, it should also guarantee the right to marry someone of any gender. Right? Legal scholar Robert George says no. We're meeting at the Princeton University chapel, a popular site for weddings, both gay and straight.

ROBERT GEORGE: You had a fundamental problem with anti-miscegenation laws and that's they were just rooted in a system of racial subordination and oppression. The whole purpose of 14th Amendment, the whole purpose, was to undo that kind of racial discrimination, and that's why the Court was entirely right in my view in using its 14th Amendment powers to overturn state anti-miscegenation laws.

SAGAL: Well, you know that advocates for same-sex marriage, marriage equality, are saying it's an analogous case.

GEORGE: The reason that doesn't work is that they're helping themselves to the very conclusion that they need to prove. It's true that sometimes you have laws that are clearly rooted in bigotry, and we should be able to say that that's true when that's true. But people who have conservative ideas about sex and marriage are not bigots. No one cooked up the conjugal conception of marriage, which emerges from a deep history, and in many traditions, on the basis of bigotry. That's just false to the historical facts. And now, they can have a view, that's, that's fine. They can compete for their view, and if they can win a majority of their fellow citizens in a fair debate, then their views should prevail. But people on the other side have exactly the same right. And if they can persuade a majority of their fellow citizens, then they should prevail. What we shouldn't be able to do, Peter, either side, is to go into court to short- circuit the democratic process.