FOX News - Glenn Beck - Constitution Under Attack: Prop 8 Under Court Review

The California Supreme Court has heard arguments in an effort to overturn Proposition 8 - a measure in which California voters approved an amendment that bans same-sex marriage.  ACLJ Chief Counsel Jay Sekulow discussed the issue on FOX News with Glenn Beck.

Watch the interview here. 

GLENN BECK:  Well, another day, another attack on the Constitution. Today, in California, the Supreme Court has heard arguments over the constitutionality of Proposition 8, a voter approved ban on same-sex marriage.

By the way, this is the second time the people of California have voted and passed this bill. This one was just passed because it was to clean up the language because the last one was also unconstitutional, they said.

The ballot initiative happened in November. It had 52 percent support, which is huge in California. It changed the state's constitution overturning the state Supreme Court decision that legalized same-sex marriage.

We are back now with Jonah Goldberg, syndicated columnist and author of "Liberal Fascism," and Jay Sekulow - he is the chief counsel for the American Center for Law and Justice.

OK. Jay, help me out, because I want to take the same-sex part out of it ...

JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE: Sure.

BECK: ... because that's what makes everybody all upset, so let's just take that out. Let's just say that California wanted to - what do I love - ban donuts and M & Ms. And they wanted to ban donuts and M & Ms. The people said, "We want to put this into our Constitution." The people have a right to do that.

No matter what the M & M Mars people say, they have a legal right to change the Constitution and do whatever they want.

(CROSS TALK)

Yes? Go ahead.

SEKULOW: Someone said to me today, you know, it's unconstitutional what the people of California did. I said, wait a minute. No, it's not. They passed a constitutional amendment.

BECK: Right.

SEKULOW: When you pass a constitutional amendment, you're changing the Constitution.

BECK: Right.

SEKULOW: That's the right of the people. And you're absolutely right, Glenn, by the way, in saying you can take the issue of same-sex marriage out of this completely.

BECK: Right.

SEKULOW: The real question here is who decides what the laws are in the state of California and what their constitution is going to be.

BECK: OK. That's the difference. Correct me - I mean, Jonah, jump in here. Correct me if I'm wrong. That's what America has going for it. That's why we don't - for instance, prohibition - we put it in there. That's why we don't take it out. We leave the scars of what the people have done to the Constitution for a reason.

Jefferson people will come - they can change the Constitution. But things will change and they'll come to their senses and they'll repair that mistake and change it back. When did we turn into a country where the people don't have control of what they want in the Constitution?

JONAH GOLDBERG, AUTHOR, "LIBERAL FASCISM": Well, I think one of the problems we have in this culture - I always like to ask college kids, can something be bad and still be constitutional? Or can something be good and be unconstitutional?

And they tend to look at me the same way my Bassett hound used to look at me when I tried to feed it a grape, you know, with total unblinking incomprehension. How can something bad be constitutional and something good be unconstitutional?

BECK: Right.

GOLDBERG: The point is that the Constitution means something. And if there's something bad in there, hopefully, we'll fix it. What I find amazing in this entire debate is California considers it perfectly constitutional to ban people from smoking outside or smoking in their own homes.

But somehow they think that this is something that you can't possibly put in the Constitution, even when you amend the Constitution itself.

BECK: But Jay, when you say -

SEKULOW: I think, actually, the good news on this, from the Supreme Court argument today, and we saw the brief on behalf of actually the members of Congress and citizens in California. The good news is that most of the justices, at least from the oral argument, appeared to take the position, even those that were in favor of same-sex marriage, that this was perfectly within the rights of the citizens to pass this constitutional amendment.

So I think that reason and thought processes are going to develop here in the right way and we're not going to have this knee-jerk reaction as Jonah was just talking about where all good is bad and bad is good cannot be unconstitutional. The answer is if people vote on it, that's the Constitution.

BECK: OK. But then, let me go back to you, Jonah, and say you know the history of the progressive movement. If the Supreme Court says it is constitutional, then what happens on the streets of California? And again, take the same-sex marriage part out.

Just take it - say it's a bunch of Glenns out there that are fighting for donuts. I'd be pretty passionate. What happens with progressives usually when they don't get their way?

GOLDBERG: Look, I'm actually - I'm much more ambivalent about the actual marriage - the gay marriage debate than a lot of people might think. But I think the point that you are trying to get at, which I think is absolutely right, is that, look, the history of progressivism is going to wherever the field is open.

If they can win at the ballot box with elections, then all of a sudden, progressives are all about democracy. If they can't win at the ballot box, they will go to the courts and say, "We're all about the courts."

BECK: Right.

GOLDBERG: If they can't win at the courts, they use the executive branch. It is wherever they have open field. So I mean, this is just - they're going to keep going at this until they win.

BECK: OK. So Jay, let me play the opposite on this.

SEKULOW: Yes.

BECK: Wouldn't this be a civil right? I mean, can you ban civil rights?

SEKULOW: Well, sure you can, I mean, not in the sense of a fundamental right. No courts recognize that this is a fundamental right. That would be under what is called the supremacy clause, the idea that the U.S. Constitution - if it is a right in the U.S. Constitution, the state can't get rid of, say, the right of freedom of religion, the free exercise of religion or it can't get rid of the freedom of speech and the freedom of the press.

But no federal court and certainly not the Supreme Court of the United States is recognized in this particular case, whether it's a protest on donuts or whether it's an issue involving the definition of marriage that that's a fundamental constitutional right.

So when you've got a situation like this where it's strictly up to the states to make the determination, it's up to those citizens of the states to make that determination.

Jonah said something very important, and that is when the progressives are not successful in the halls of Congress, they move to the courts. When they are not successful in the courts, where are they going to move next?

Well, you know, they have the right to protest and picket. But the end of the day is when the court coming to the right conclusion will decide that these citizens were well within their rights in amending their constitution, no federal claim involved here.

BECK: OK. Let me ask you this, because I'm amazed at the argument that you can't amend the Constitution. You can't change the Constitution. That's what our founders designed.

Isn't this - maybe I'm wrong. I have never heard of the people's representative, the people that - if a guy is supposed to uphold the laws that the people pass goes to the Supreme Court and say, "I know I'm the chief guy. I'm the attorney general. I'm the chief guy to uphold the law and the people said this is the law but the people can't do that." Has this ever happened before?

SEKULOW: Well, you know, this idea is called "confession of error." And basically, that's what the attorney general's office did. They are supposed to be defending the people. They did not.

But Glenn, I want to focus on something you just said regards this directly. You know, the Supreme Court of the United States in the 1950s(sic) in the Dred Scott case basically said that slaves while entitled to (UNINTELLIGIBLE) rights of citizenship, were not persons under the Constitution.

It took, what, a constitutional amendment to change that, and that passed through the constitutional amendment process and became the law of the land. And now you've got here, and to complicate this case, you've got an attorney general that is supposed to be supporting the people, taking the contrary position.

Fortunately, Ken Starr, from all indications, did a very good job today and the court was very receptive. Even those justices that were in favor of the issue of marriage being redefined were saying, "Look, the individual citizens here had the right to speak out," and that's exactly what they did.