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Burden of Proof

Supreme Court Rules on Gay Rights, Abortion, Separation of Church and State

Aired June 29, 2000 - 12:30 p.m. ET



JAMES DALE, FORMER BOY SCOUT LEADER: I'm definitely very disappointed that the Supreme Court did not understand that the Boy Scouts is not about discrimination or about anti-gay prejudice.

REV. ALEXANDER WEBSTER, FORMER BOY SCOUT: The U.S. Supreme Court has courageously upheld the legal and moral right of a private organization to set ethical standards for its own internal leadership.

EVAN WOLFSON, LAMBDA LEGAL DEFENSE AND EDUCATION FUND: There are gay youth in this country, and they need the opportunity to participate. And they deserve a message of welcome. And if the Boy Scouts won't give it to them, if the Boy Scouts is going to fight to label themselves as bigots, there are other organizations like the Girl Scouts, like the Boys Clubs.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, the United States Supreme Court allows the Boy Scouts of America to be exclusive. How will yesterday's controversial Supreme Court decisions affect the future of gay rights, abortion, and the separation of church and state?

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

The U.S. Supreme Court handed down controversial decisions yesterday before taking off for a summer vacation. By a narrow 5-4 margin, the court struck down a Nebraska law that banned what critics call partial-birth abortions.

GRETA VAN SUSTEREN, CO-HOST: In a separate ruling, the court upheld a Colorado law that restricts anti-abortion demonstrations outside health clinics. The court also ruled that federal funds could be used to buy computers for religious schools.

COSSACK: And it said the Boy Scouts of America can exclude adult gay members. And joining us today from New York is James Dale, the former Boy Scout who sued the organization, and his lawyer, Evan Wolfson, of the Lambda Legal Defense and Education Fund.

VAN SUSTEREN: And here in Washington, former Supreme Court clerk Brett Kavanaugh, former Supreme Court clerk and law professor Chai Feldblum, and constitutional law professor Akil Amar. And in our back row: Mindy Mizell (ph), Lauren Davis (ph), and Sarah Taylor (ph).

COSSACK: Also joining us in our bureau is CNN senior Washington correspondent, Charles Bierbauer.

But first, let's go right to James Dale.

James, your reaction to the Supreme Court decision yesterday?

DALE: I'm definitely disappointed that the Supreme Court didn't understand what scouting is really all about. But I'm also very hopeful because I think that this -- some of the decision from the dissent, and also the direction America is going in is the right direction.

VAN SUSTEREN: James, you're not just sort of a casual joiner of the Boy Scouts. You've been in there for an awful long time, haven't you? And how far did you go through the ranks of Boy Scouts?

DALE: I started in scouting when I was eight years old as a Cub Scout, and that was actually -- I wanted to get in sooner to join my father and my brother, but I was a little too young. Then I stuck with it from the age of eight until the age of 19, when I was an assistant Scout master, and I was expelled. During that time, I was an Eagle Scout. I worked on camp staff. I was very, very involved. I think, for some kids maybe, you know, maybe it is football, or soccer. For me, the Boy Scouts is really what made me feel like I was part of a community, and that I belonged.

VAN SUSTEREN: How significant is it to obtain the Eagle Scout status? I mean, how, you know, can you give me some sort of idea of, you know, how many actually attain that status within the group?

DALE: It believe that the percentage is three percent. For me, it was a labor of love, though. It wasn't as though I tiled countless hours in the Boy Scouts. It was something I really enjoyed. And that's why I spent so much time in the program. And I think, because I was a gay kid growing up, it was a program that made me feel good about myself. And that's why I stuck with it. And I think the sad underlying fact here is that there are a lot of kids in the Boy Scouts that are gay now, and people that were in the Boys Scouts that are gay.

And where are they going to turn now that the Boy Scouts have rejected them?

COSSACK: Evan Wolfson, you were the lawyer in this case. What part of your presentation to the Supreme Court do you think that was -- that the Supreme Court didn't get or rejected? WOLFSON: Well, I think the five justices in the majority were quite eager to simply rubber-stamp what the Boy Scouts lawyers said in their briefs, as the dissent pointed out, and they really weren't listening to the arguments. They had their goal in mind and they made their decision. And I think anyone who reads the decision will see that the four dissenters walked through the evidence, just like the unanimous New Jersey Supreme Court did, and they held correctly that scouting is not an organization about bigotry. It's not an organization about discrimination.

And there's nothing in there about gay or heterosexual or homosexual. That's just not what it's about. And, you know, the real losers today -- even though they may have won legally -- but the real losers are the Boy Scouts leaders, because they have taken their organization and fought really hard to win the label of bigot, to win the label of discriminator. And how does that help?

VAN SUSTEREN: Akil, let me ask you a quick question -- I hate to be stuck on this point -- but being a Boy Scout -- three percent, according to James -- are any justices of the Supreme Court, were they Eagle Scouts? And secondly, this case is we call a free association case. What is free association?

AKIL AMAR, CONSTITUTIONAL LAW PROFESSOR: I think two of the justices at least are Eagle Scouts, Justice Breyer and Justice Kennedy, I believe. I'm actually an Eagle Scout. And it connects to association. I think my friend Evan Wolfson is absolutely right that the Boy Scouts have maybe won a legal victory, but at what price? Those of us who have been associated with this organization, we have the freedom to associate with it, but we also have the freedom to disassociate ourselves from it.

And I think some of us, who have been connected with the organization, now have to distance ourselves from this organization until it changes its practice.

VAN SUSTEREN: Does this mean you are going to quit? I mean, that you're -- are you going to do something formal?

AMAR: It means that I can't have the same kind of relationship with the Scouts that I had day before yesterday. And this meant a lot to me, to be an Eagle Scout, as I think maybe for Mr. Dale. But I think Evan is right. Sometimes you can lose a legal battle, but win a larger political battle. And now the debate moves out of courts and out of law. We, as individuals, have to decide what we're going to associate with, and what we're going to disassociate from.

VAN SUSTEREN: All right, we're going to take a break.

Thanks to James Dale and Evan Wolfson.

And when we come back, the other cases in the United States Supreme Court that came down. Stay with us.

(BEGIN LEGAL BRIEF) On June 29, 1972, the U.S. Supreme Court ruled in Furman v. Georgia that capital punishment violated the Eighth Amendment and was unconstitutional. This marked the first time the U.S. Supreme Court ruled against capital punishment. The death penalty was reinstated in 1976.



COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via "video-on- demand." You can also interact with our show, and even join our chat room.


WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: The decision is, I think, consistent with Roe v. Wade, and as you pointed out, it was narrowly upheld. I think that is about what the vote for Roe is. And I think that in the next four years, there will be somewhere between two and four appointments to the Supreme Court, and depending on who those appointees are, I think the rule will either be maintained or overturned.


VAN SUSTEREN: Yesterday, the United States Supreme Court struck down a state law banning what critics call partial-birth abortions.

Charles Bierbauer, the president calls it the decision, critics call it partial-birth abortion, some people call it late-term abortions. What is this case about?

CHARLES BIERBAUER, CNN CORRESPONDENT: Well, this case is about whether you can constrict in some form beyond what Roe v. Wade has done, beyond what Planned Parenthood versus Casey has done, to start to narrow, and it is a very political issue that it has sort of become the political focus for the anti-abortion folks these days to say that this procedure, actually it's pretty much a midterm procedure, because once you hit viability of a fetus, then all abortions are banned except for the life of the mother.

Probably the most interesting aspect of the opinion was in Justice O'Connor's concurrence, where she said, if this had been written, the statute in Nebraska, had been written to just involve what is called the DNX (ph) procedure, and not overlap into the DNE (ph), let's not get into the technicalities. but to limit it to that one procedure, and if it had provided for the health and life of the mother, she said then we might be looking at something very different. So this is not as bold as it might have been. She has sent a very strong signal. Let me add just one other thing, the court today, in a list of orders put out, told the lower courts in Wisconsin and Illinois to take another look at the statutes there, similar, not precisely the same, those statutes had been upheld, whereas Nebraska's had been knocked down. So they're going to keep looking at it.

COSSACK: Chai, this is an interesting decision, because it does not put to rest, as Charles suggests, the notion of late-term abortions. What it really does is say, you know, you didn't right this statute correctly. If you come back with one that is perhaps written a little clearer, and I think this is part of the objection here, you know, we might say: You can go ahead and have these kinds of procedure; correct?

CHAI FELDBLUM, FMR. SUPREME COURT CLERK: Yes, I mean, there is this issue that after viability, the abortions are not allowed, and so it's understandable that someone like O'Connor would say that certain procedures could be prohibited. But it is important that they said, regardless of how you write it, you have to have an exception for the health of the mother, not just life. So that no matter how carefully someone writes these provisions, we will not be seeing sort of really strong restrictions on a woman's right to choose.

BRETT KAVANAUGH, FMR. SUPREME COURT CLERK: What is interest about the case, I think, is how it shows the abortion debate is still front and center in the Supreme Court. I think the court, eight years ago in Casey, thought it was calling an end to the national controversy over abortion. I think the court misperceived that the issue would stay front and center, and I think Justice Kennedy's dissent yesterday indicates some deep unease by him about the course of the court on this issue.

VAN SUSTEREN: Are any of you surprised by the fact that this is five-four, could you have predicted the numbers in the decisions? is this a big surprise?

FELDBLUM: Five-four is not surprising for exactly the reason you said, that this is still a politically-intense issue.

VAN SUSTEREN: Should it be?

FELDBLUM: Of course it is, abortion? I mean, that -- but this is the interesting thing between the two cases, OK? The idea that homosexuality, for example, is immoral is a very strongly held view by some people. Yesterday, the Boy Scouts argued and were upheld that the mission of their organization is to express that belief, the way the mission of an anti-choice group is to express that belief. These things are strongly contested view.

What's interesting about expressive association is that you say I come together as a group in order to picket this clinic. Yesterday, the Boy Scouts were upheld as coming together to say that homosexuality is immoral. And, as Akil said before, how many people, when they join the Boy Scouts, thought that that is what they were joining. VAN SUSTEREN: OK, let me change the topic. Akil, I will go to you, and it is taxpayer money, according to the court yesterday, it can be used in religious school for computer equipment. Are you surprised by that decision?

AMAR: I wasn't surprised by that decision. We're moving away from the metaphor of strict separation, and toward the idea of neutrality. And the idea of neutrality is still quite...

VAN SUSTEREN: How can we just sort of move that way, I mean, we are talking about the Constitution, I mean, it is sort of like -- it's a living document, granted, but boy we certainly doing a sliding (ph).

COSSACK: And interpreted by nine justices.

AMAR: And some of the justices might think that the earlier interpretations were wrong in the same way that Brown versus Board of Edition said Plessy versus Ferguson was wrong.

I actually think that there is a lot to be said for the neutrality vision. Here's the idea, that government shouldn't ever give religion a benefit just because it's a religion, but it shouldn't withhold the benefit from a group just because they are religious, too.

So if a private school that is an atheist institution gets the computer, if a private school that is an agnostic institution gets a computer, then a private school that is a religious institution of whatever religion, Catholic -- also gets a computer.

COSSACK: Let me just bring up on the same line, previously, about a week ago, the Supreme Court came down with a decision that said, public prayer at football -- at public football games, prayer at football games is not allowed. Now, here you have two decisions, one of which they are giving computers to parochial schools, which conceivably...

AMAR: To all schools.

COSSACK: Well, but parochial schools, which conceivably could be used to carry religious message; right?


COSSACK: And now you also have prayer at football games where the Supreme Court says you can't do that?

KAVANAUGH: The difference in each case is the rights of the person in question. In the prayer case, it was the rights of the listener, the student listener not to be subjected at a compelled event to hear prayer that he or she might disagree with. So it was really respecting the liberty of the listener.

In the voucher, or the computers case, the same kind of principle, the liberty of a religious school to participate, as Akil said, on an equal basis with a nonreligious school. So I don't think the principles are really at war with one another, although, you know, a surface analysis might suggest as much.

FELDBLUM: But the most -- I went to a very religious Yeshiva. I love the idea of maybe that you have the computers. The problem is...

VAN SUSTEREN: Did they have them then?


VAN SUSTEREN: That's a different issue.

FELDBLUM: But the problem is that they also said in this opinion that you could convert it to really truly religious use, and I think that some people are concerned that neutrality could start moving over into actual support.

COSSACK: Are we facilitating religious use by giving them...

FELDBLUM: And that would be problematic in this country.

KAVANAUGH: What's important, though, is the school voucher debate, the importance of yesterday's decision for the school voucher debate is that school vouchers I predict are going to be upheld on the basis of yesterday's opinion.

COSSACK: All right, let's take a break.

Up next, the Supreme Court handed down a surprising number of decisions on social and religious issues. Is this a trend? Stay with us.


Q: How is the Philippine National Bureau of Investigation charging the love bug virus suspect?

A: The Philippine NBI has charged him with credit-card fraud because there are no cybercrime laws on the books.



COSSACK: Prayer in school, gays in the Boy Scouts, abortion and pornography, the Supreme Court handled an unusual number of hot-button social and moral issues in its 2000 term.

Well, Charles, you cover the Supreme Court, do you think there are more and more of these kind of social issues that the Supreme Court is delving into?

BIERBAUER: Well, it was really extraordinary how many there were, and they are all sort of unconnected, but came together, and particularly came together towards the end of the term with the Boy Scouts case, the school prayer, the abortion issues. I'm not sure whether that bespeaks a trend or not. But it was certainly the overwhelming nature of this particular term before the court. And there are more to come. Brett just touched on one at the end of the last segment, saying: What does this mean in terms of school vouchers? An issue, a couple of cases have been on the justice's list that they've turned down, but there are certainly more of those coming along as well. I think we're just beginning to scrape away at some of these things.

VAN SUSTEREN: Chai, this is going back to my favorite topic, the election. These decisions, five-four, can you really, sort of -- the next president is probably going to get one, two, three appointments. Can you really pack the court in the sense that you can put justices on who are going to have your agenda?

FELDBLUM: The next president will make all the difference in terms of what this court decides. There is no doubt in my mind that on issues of federalism, issues of equality, on a number of the issues.

VAN SUSTEREN: How do you explain then, and let me throw this to Brett, and then maybe I'll make you explain Chai's point, is that Justice Souter, I think, was a big surprise to President Bush and I also think that Earl Warren was a big surprise. Everyone thought that he was going to be this hugely conservative, and he was very liberal in the court.

KAVANAUGH: Well, and Justice O'Connor, who was the fifth, yesterday, to strike down the partial-birth abortion statute, was appointed by President Reagan. I don' think -- I think presidents can pack the court, but it takes a lot of political capital and will power to do it, and most presidents don't want to expend a lot of political capital on a bloody Supreme Court nomination. We've seen that time and again, to pick the consensus pick who turns out to be more moderate and thus less predictable, that's what's happened.

FELDBLUM: But the more moderate person actually is going to end up being, from my point of view, better on issues of equality and issues of giving congressional power.

VAN SUSTEREN: And let me, and Akil, the idea of moderate certainly is a rather fluid one. What was moderate 20 years ago is a lot different than what's moderate today.

AMAR: The court has shifted. There are justices who come on the court who, because they don't want the court to seem politicized, actually sign on to decisions made by the court before they got on that that they may disagree with. That's what O'Connor and Kennedy and Souter said in the Casey case, that maybe Roe was wrong, but we are going to accept it as a matter of stari decisis because we think the court should make more continuity.

Others could come along and say: No, if the decision was wrong, you should admit you made a mistake. Everyone else in America admits their mistakes.

VAN SUSTEREN: What do you think should happen? Do you think a court should? AMAR: I actually think that the court has been rather bad over 200 years at admitting its mistakes. Even Brown didn't openly say, you know, we really messed up in Plessy versus Ferguson.

COSSACK: Chai, let me just jump in. In terms of what we originally started off with, the notion of the court handling more and more social issues. As a trend, do you think that that is something that is a good idea, or don't you think these should be handled by the legislature?

FELDBLUM: The Supreme Court is a reflection of America, and America does things in the legislature, and then sometimes the court gets that. I think it's fine for the Supreme Court to be involved in some of these issues. I think that some of the decisions they make, especially for example in the Boy Scouts, are not the right ones. And you know what, the public, at the end, will change those decisions by their actions in the legislature and in their day-to-day lives.

VAN SUSTEREN: Brett, do you want to respond to that?

KAVANAUGH: One of the big issues in the Warren court, or big legacies in the Warren court was in issues such as school prayer, and then right after the Warren court, abortion, the Miranda warnings, the exclusionary role. What is interesting with the Rehnquist court, which was supposed to be more conservative, is all of those doctrines have gotten more firmly entrenched under the Rehnquist court, which no one would have expected in 1986 when he took...

COSSACK: The exclusionary rule certainly didn't get more entrenched. As the guy who lost U.S. versus Leon before the United States Supreme Court, I beg to differ with you, the exclusionary rule I think is just about gone.

KAVANAUGH: Well, the Miranda case, this term, was probably a very important case, very surprising that Chief Justice Rehnquist would write the opinion strongly reaffirming probably the most well known opinion of Chief Justice Earl Warren.

COSSACK: That's all the time we have for today. Thanks to our guests and thank you for watching.

How much police protection does Braves pitcher John Rocker need? Weigh-in on "TALKBACK LIVE" at 3:00 p.m. Eastern time and noon Pacific.

VAN SUSTEREN: And before we go, on Tuesday, my dear friend Roger Cossack made a crack about me serving on jury duty, he felt sorry for the other jurors. Well, Roger doesn't have a little sister and he may not be familiar with the adage of what goes around comes around.

COSSACK: What am I getting now?

VAN SUSTEREN: I happen to have in my possession the new "People" magazine. It is America's hundred most eligible bachelors. Make sure you go out and get this edition at page 104, and you will see that one of the eligible bachelors is my co-host Roger Cossack. Join us again for our next edition of BURDEN OF PROOF.

COSSACK: I have learned my lesson, I will never say another bad word again as long as I live.



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