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The Rachel Maddow Show, Transcript 03/27/13

Guests: Mary Bonauto, Nicolle Wallace

RACHEL MADDOW, HOST: Good evening, Alex. Thank you very much. Appreciate it. And thanks to you at home for joining us this hour. Last week, "The Washington Post" did a little human interest profile on a burly ex-paratrooper who is a personal trainer for two of the justices who are currently sitting on the Supreme Court. In that profile, we learned that Justice Ruth Bader Ginsburg may be 80-years-old. She may weigh less than 100 pounds. She may have survived very serious bouts with cancer twice already, but you know what? Ruth Bader Ginsburg can do more push-ups than I can. So behold, today, Justice Ruth Bader Ginsburg punching well above her weight at a much anticipated rock `em, sock `em Supreme Court oral arguments on same-sex marriage. Now, the first voice you`re going to hear is the voice of Paul Clement, who is the conservative attorney who is making the case for the anti-gay rights side. But then listen for Justice Ginsburg. (BEGIN AUDIO CLIP) PAUL CLEMENT, ATTORNEY: No state loses any benefits by recognizing same-sex marriage. Things stay the same. What they don`t do is they don`t sort of open up an additional class of beneficiaries under their state law that get additional federal benefits. But things stay the same. And that`s why in this sense -- JUSTICE RUTH BADER GINSBURG, U.S. SUPREME COURT: They`re not -- they`re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security, I mean, it`s pervasive. It`s not as though there`s this little federal sphere and it`s only a tax question. It`s -- as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so you`re really diminishing what the state has said is marriage. You`re saying, no, state said two kinds of marriages; the full marriage, and then a sort of skim milk marriage. (END AUDIO CLIP) MADDOW: Standing five feet tall from Brooklyn, New York, appointed by President Bill Clinton -- Justice Ruth Bader Ginsburg, frankly, kind of winning the day today by christening this particular variety of American second class citizenship as skim milk marriage, which is what it will forever be known as now. And, by the way, in so doing, she skillfully was being very political there, when she -- in her admonishment of the attorney there, roped into her discussion, the all important swing justice on the court, Justice Kennedy. She roped him into her answer in a way that puts him on her side of the case. She`s always doing stuff like that. It`s amazing. Today was day two on this issue at the Supreme Court, right? Yesterday`s case was about a state law, California voters amending their state constitution in 2008 to say that gay people are banned from getting married in that state. When a federal court struck that down that California law as constitutionally, federally, that`s something that states may very well want to do, but the U.S. Constitution blocks them from doing it. When that happened, a weird thing happened in California politics. The California state government said, you know what? We actually think the judge is right here. We think our state`s law, this amendment, is unconstitutional. And so we, the government of the state, are not going to appeal the judge`s ruling and we are not going to defend this bad law. We want to let it die. So, that was a really interesting about day one of these two big cases of gay rights cases at the Supreme Court. Yesterday, they did fight some about the big underlying question of whether states can ban gay marriage or whether the U.S. Constitution blocks that. But, mostly, they fought about that weird way that California handled it and they thought about who has the right to defend that law when California`s attorney general refuses to defend the law. She was our guest last night on this. Since she and California officially as a state government would not defend their ban on gay marriage, did the people who did want to defend it have the right to do so instead? And frankly, could addressing that part of the question be a really convenient way for the Supreme Court to avoid the whole mishegas, the whole politically fraught question of whether gay people and straight people should have equal rights in this country. So that was yesterday, where it looked like that standing issue, that issue of how the case got to the court might end up diverting the court from making a decision on the big case. That was yesterday. It was one hour`s argument. It was about one state`s law. Today it was two hours` argument and it was about a different case. Today it was not about a one state`s law. Today it was about a federal law. It was about one part of one federal law that starts with this. When Edie Windsor and Thea Spire got married in 2007, they had already been together for 42 years and counting. Spire by then has advanced MS. She had been told she had less than a year to live. They flew to Toronto, they got married. Thea died. And because of the Defense of Marriage Act, in death, Thea Spire was not recognized as having a surviving spouse. Now, at one level, this case which led to today`s arguments, it is an incredibly romantic story of these two young women in love who became two old women in love, a romance only ended in death in its fifth decade. But this case arises from not this romantic truth but rather the unromantic, mathematical truth of the law treating your spouse as a stranger in death when other romantic couples are deferred to as a family. The 1996 Defense of Marriage Act puts a law that the federal government that the federal government must discriminate. The federal government of course doesn`t perform marriages. Federal government doesn`t issue marriage licenses. It never has. It`s the states who govern who is and who isn`t married. But under this law, under DOMA, the federal government has to comb through the marriages that the states do recognize and pick out the ones that are same-sex couples and then it must overtly deny specifically to those couples all the rights that other marriages get. At the court today, here was the lawyer for the pro-gay rights side, Roberta Kaplan, arguing that point, with an interjection from Justice Stephen Breyer, who is the most professorial of all the judges, and you`ll hear it in this clip. Check this out. (BEGIN AUDIO CLIP) ROBERTA KAPLAN, ATTORNEY: No one has identified in this case, and I don`t think we`ve heard it in the argument from my friend, any legitimate difference between married gay couples on the one hand and straight married couples on the other, that can possibly explain the sweeping, undifferentiated and categorical discrimination of DOMA, section three of DOMA. And no one has identified any legitimate federal interest that is being served by Congress`s decision for the first time in our nation`s history to undermine the determination of the sovereign states with respect to eligibility for marriage. I would respectfully contend that this is because there is none. Rather, as the title of the statute makes clear, DOMA was enacted to defend against the marriages of gay people. This discriminatory purpose was rooted in moral disapproval as Justice Kagan pointed out. JUSTICE STEPHEN BREYER, U.S. SUPREME COURT: What do you think is -- the argument that I heard was to put the other side, at least one part of it, as I understand it, look, the federal government needs a uniform rule. There has been this uniform one man-one woman rule for several hundred years, whatever, and there`s a revolution going on in the states. We either adopt the revolution or push is along a little, or we stay out of it. And I think Mr. Clement was saying, well, we`ve decided to stay out of it. The way to stay out is to go with the traditional thing. That`s an argument. So your answer is what? KAPLAN: I think that`s an incorrect argument. BREYER: I understand you do. I`d like to know the reason. KAPLAN: Of course, Congress did not stay out of it. Section three of DOMA is not staying out of it. Section three of DOMA is stopping the recognition by the federal government of couples who are already married solely based on their sexual orientation, and what it`s doing is undermining as you can see in the briefs of New York and others, it`s undermining the policy decisions by those states that have permitted gay couples to marry -- states that have already resolved the political, moral, whatever other controversies that are resolved in those states. And by fencing those couples off, couples who are already married and treating them as unmarried for the purposes of federal law, you`re not taking it one step at a time, you`re not promoting caution. You`re putting a stop button on it and you`re having discrimination for the first time in our nation`s history against a class of married couples. (END AUDIO CLIP) MADDOW: Discrimination says the side that wants what it sees as discrimination overturned. And, of course, in that argument she gets an assist sort of from one of the more liberal justices who`s probably inclined to agree with her assessment. Now, as to the other side, here`s what`s really interesting. Like the California case yesterday, there is a kind of strange situation about the anti-gay side in this, wherein the government doesn`t want to defend it. This is a federal law, remember? And President Obama and his Justice Department and the solicitor general agree that this is a bad law. They think this law is discriminatory and that it`s unconstitutional, and they are not defending it. So who`s defending it then? Somebody else had to be brought onboard to defend it, and in this case it was the House Republicans. Hi, John Boehner, who decided that they would defend it with your taxpayer money. They hired a really good conservative lawyer named Paul Clement to argue their side, to argue to the anti-gay rights side of this, to argue to uphold the law. And Paul Clement`s argument today was that this isn`t discrimination at all. It`s just that the federal government likes to keep things simple. Listen. (BEGIN AUDIO CLIP) CLEMENT: I think what that shows and that when the federal government gets involved in the issue of marriage, it has a particularly acute interest in treatment of people across state lines. So, Ms. Windsor wants to point to the unfairness of the differential treatment of treating two New York married couples differently. And, of course, for the purposes of New York law, that`s exactly the right focus. But for purposes of federal law, it`s much more rational for Congress to say, and certainly a rational available choice for Congress to say, we want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma and treat them the same. Or even more to point of purposes -- JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: But that`s begging the question, because you`re treating the married couples differently. You`re saying that New York`s married couples are different than Nebraska`s. CLEMENT: But the -- SOTOMAYOR: I picked that out of a hat. But the point is, there`s a difference. CLEMENT: The only way there`s a difference is because of the way that state law treats them. (END AUDIO CLIP) MADDOW: Right, the way that state laws treat them. States` laws treat gay people and straight people differently. And the question here is whether the federal government should be part of that discrimination, whether the federal government should in fact compound that. For an answer to that, we go to the heavy hitter for the day, Justice Ginsburg. Go, go! (BEGIN AUDIO CLIP) GINSBURG: Mr. Clement, the problem is that it would totally thwart the states` decision that there is a marriage between two people for the federal government then to come in and say, no joint return, no marital deduction, no Social Security benefits. Your spouse is very sick, but you can`t get leave. People -- if that set of attributes, one might well ask, what kind of marriage is this? CLEMENT: And I think the answer to that, Justice Ginsburg, would be to say that that`s a marriage under state law. (END AUDIO CLIP) MADDOW: Ow. And that`s whereupon in the arguments we got to the point where Justice Ginsburg ended up calling those marriages skim milk marriages, which frankly is a grave offense to skim milk, which is delicious, but it`s otherwise kind of amazing and will stick. We have the expert -- the expert -- in the country on this case, like the single expert on this case, who`s here in just a moment to talk in just a moment how all this went today and what happens next. And how these oral arguments might tell us what`s going to happen on this issue. But before we do that, there`s one other thing from today`s case that I think is totally worth hearing. This is not one of those smackdown moments for either side, but it was the very end of the arguments, very end of the two hours, and it showed the strange and, I don`t know, this unstable political core that`s at the heart of these legal fights, right, because we have fights about the law but those fights do not happen totally independent of the political world in which we live. And the combination of legal and political sometimes gets a little woolly. And it was Chief Justice John Roberts today who showed that most clearly in him trying to make the case that gay people should not be protected against discrimination because gay people aren`t discriminated against in this country. And the way you can tell that gay people aren`t discriminated against in this country is that discrimination against gay people in some cases is starting to be politically embarrassing for the bigot. And also, he points out, gay people have really good lawyers now. He says that to the gay rights lawyer arguing before him at the Supreme Court. It`s a really strange and kind of unstable moment. This is the last piece of tape I want to play for you. It`s a very end of the argument. Just watch this. (BEGIN AUDIO CLIP) CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case? KAPLAN: I disagree with that, Mr. Chief Justice. I think the sea change has to do, just as was discussed in Bowers and Lawrence, was an understanding that there was no difference, there was no fundamental difference that could justify this kind of, quote, "categorical discrimination" between gay couples and -- ROBERTS: You don`t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you? KAPLAN: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor. ROBERTS: Really? KAPLAN: Yes. ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case. KAPLAN: The fact of the matter is, Mr. Chief Justice, is that no other group in history has been subjected to popular referenda to take away rights that have already given or exclude those rights the way gay people have. And only two of those referenda have ever lost. One was in Arizona; it then passed a couple of years alter. One was in Minnesota where they already have a statute on the books that prohibits marriages between gay people. So I don`t think -- and until 1990, gay people were not allowed to enter this country. So, I don`t think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous -- I think gay people are far weaker than women were at the time of Frontiero. ROBERTS: Well, but you just referred to a sea change in people`s understandings and values from 1996, when DOMA was enacted, and I`m trying to see where that comes from, if not from the political effectiveness of groups on your side of the case. KAPLAN: To flip the language of the House Report, Mr. Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples` relationships are not significantly different than the relationship of straight married couples. I don`t think -- ROBERTS: I understand that. I`m just trying to see where that moral understanding came from, if not the political effectiveness of a particular group. KAPLAN: I think it came, again used very similarly to what you saw between Bowers and Lawrence. I think it came to a societal understanding. I don`t believe that societal understanding came strictly through political power. And I don`t think gay people today have political power as that -- this court has used that term with in connection with the heightened scrutiny analysis. ROBERTS: Thank you, Ms. Kaplan. (END AUDIO CLIP) MADDOW: And that was it. That`s how it ended, on that incredibly intense moment that how is it that gay people can be so hated, that you can be here arguing for this now. Doesn`t that mean that you`ve got access to people like me? Amazing. But at that moment, the lawyer, Roberta Kaplan sat down, finished the day. But I have to tell you, the reason that Roberta Kaplan, that lawyer there, and the solicitor general today, and those plaintiffs, and any of those people were there in that courtroom at all today, it`s not just some amorphous sense of gay peoples` political power that straight people need to be afraid of in fact -- the fact that there are same-sex marriages in the United States against which discrimination is now under debate, that`s the product of a very specific legal path. And it`s significantly attributable to our next guest tonight. Stay with us. (COMMERCIAL BREAK) MADDOW: OK. I said I was done playing clips, but I wanted you to hear this too. Sorry. All right. The thing you are listening for here, from today at the Supreme Court, is the audience gasping at something that Justice Elena Kagan says. Listen for the audience here. Listen. (BEGIN AUDIO CLIP) CLEMENT: When you look at Congress doing something that is unusual, that deviates from how they`ve proceeded in the past, you have to ask, was there a good reason? And in the sense, you have to understand that 1996, something`s happening that is in a sense forcing Congress to choose between its historic practice of deferring to the states and its historic practice preferring uniformity. JUSTICE ELENA KAGAN, U.S. SUPREME COURT: Well, what is what happened in 1996, and I`m going to quote from the House Report here, is that Congress decided to reflect an honor, a collective moral judgment and to express moral disapproval of homosexuality. Is that what happened in 1996? CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that`s enough to invalidate the statute, then you should invalidate the statute. But that`s never been your approach. (END AUDIO CLIP) MADDOW: You could hear the audience react, gasping incredulous sort of at the way Congress thought way back when in the `90s. Amazing stuff. Joining us is Mary Bonauto, whose legal work over the past 13 years revolutionized gay capital rights in this country. In Vermont, her legal work was the catalyst for creating civil unions. In Massachusetts, she won the case that caused the state to legalize same-sex marriage, the first state to do so. And then, last year, she helped persuade a federal appeals court that DOMA was unconstitutional, which led to today`s amazing hearing at the court. Mary is the civil rights project director for Gay and Lesbian Advocates and Defenders. Mary Bonauto, congratulations on your big day. Thanks for being here. MARY BONAUTO, GLAD CIVIL RIGHTS ATTORNEY: Thank you. MADDOW: I know that you are at the courtroom today. You saw the oral arguments. How do you feel about how everything went today? BONAUTO: It was an excellent day. It was an excellent day because we finally had our day in court. You know, we have, as you`ve heard, a uniform rule in this country of taking state marriage laws, refined it, but the rules were changed. When it looked like same-sex couples would marry, and the issues today were very clear. Why are we treating only married straight couples different from all other couples? And the clips you showed revealed that there wasn`t much of an answer. MADDOW: You have been such an important strategist in this legal fight. I mean, right up to winning the first circuit case that led to today at the Supreme Court. When you look at all the work done over the last decade toward today, what do you think was the most important preparations to make the strongest case today? BONAUTO: You know, I answer that on two levels, because I think when couples started legally marrying in Massachusetts, it was just 10 years ago this month that we argue that case in Massachusetts, and then (INAUDIBLE) before that couple started marrying, it changed everything, when people could see with their own eyes what it looked like when same-sex couples committed in marriage. And it was happy, it was joyous and people understand it`s about love and it`s commitment and it`s about being there for each other for the long haul and we actually will share a lot of values. And so, that`s changed the conversation. And then more and more, as more states have decided through court decisions or legislators or even the ballot that it`s a good policy and it`s the right constitutional thing for same-sex couples to marry. So, there`s that. And then with DOMA, obviously working so hard for couples to marry and defending that victory in Massachusetts, it was extremely important to people to have their marriages be marriages, but they found out immediately they were in second class marriages and that our national government was saying that their marriages didn`t count. They were actually wiped, for all federal purposes, all 1,100 of them. And this was a day that needed to happen. It happened because being treated equally under the law is clearly about principles and so on. But being treated unequally really scars your soul and it makes a difference in people`s lives in the protections they do or don`t have. So, today was a day long and coming because there are many couples who really just need their government to treat them fairly and equally, and like other married couples. MADDOW: A lot of people have made foolish by predicting what will happen in important cases based on the oral arguments that day, a lot of people in cable news in particular. So, I tried to avoid that as much as I can. But if, hypothetically, if the court strikes down DOMA in a way that sort of legally they are most likely to strike down DOMA based on the way this case was presented to them, what would happen next? What would be the practical consequences of a ruling like that, if that`s what they decided come June? BONAUTO: The clearest practical consequences that same-sex couples who are legally married in their state will now be treated like other married couples in their state, whether it means they pay more in taxes or they pay less, but they are married, and they come to the federal government as married people and plug into that social safety net and all those protections, and all the responsibilities that come along with it. That`s the clearest consequence. No effect on the laws of other states. MADDOW: So states where you can`t currently get married if you`re a same-sex couple, this ruling in this particular case wouldn`t have any impact on that? BONAUTO: Yes, this is about the unusual, unprecedented rule that Congress made in 1996 to say we`re not going to follow our usual pattern of just, you know, adopting whatever the states say. We`re going to actually create rules to exclude married same-sex couples from any federal protections. MADDOW: Mary Bonauto, civil rights project director for Gay and Lesbian Advocates and Defenders, this has been your fight and your strategy for more than a decade. And everybody who knows stuff about this legally knows that you are the helm of it, have been at the helm of it in so many different ways. I think a lot of just going into this politically maybe meeting you for the first time. And we really appreciate you being here with us to do that. Thank you very much. BONAUTO: Thank you so much. MADDOW: Thanks. All right. Lots still ahead, including a story that has nothing to do with the Supreme Court or politics, but about which I`m nevertheless obsessed and which comes with this picture. We`ll explain that coming up. (COMMERCIAL BREAK) MADDOW: December 22nd, 2010, Wednesday morning in Washington when this happened. (BEGIN VIDEO CLIP) BARACK OBAMA, PRESIDENT OF THE UNITED STATES: This is done. (CHEERS AND APPLAUSE) (END VIDEO CLIP) MADDOW: When President Obama did that in December 2010, he set up an ostensibly unlikely player in the case presented to the Supreme Court today. Unexpected allies, next. (COMMERCIAL BREAK) MADDOW: When it came time at the Supreme Court today for the government solicitor general to start his argument about why the president and the administration are refusing to defend the federal marriage ban, the solicitor started right off the bat in kind of a surprising place. (BEGIN AUDIO CLIP) ROBERTS: General Verrilli? DONALD VERRILLI, SOLICITOR GENERAL: Mr. Chief Justice, and may it please the court: the equal protection analysis in this case should focus on two fundamental points. First, what does section 3 do, and second, to whom does section 3 do it. What section 3 does is exclude from an array of federal benefits lawfully married couples. That means that the spouse of a soldier killed in a line of duty cannot receive the dignity and solace of an official notification of next of kin. (END AUDIO CLIP) MADDOW: Interesting point about how the federal marriage ban works, right? It`s given pride of place at the top of the government`s arguments today. When the government repealed "don`t ask, don`t tell" so gay people can serve openly in the military, the military itself insisted that that was it as an institution wanted, that it was against the principles and the operational interest of the military to discriminate, that the armed forces needed to be able to treat its members purely on the basis of merit or the military would not work as well as it should. But if that is the case, the Defense of Marriage Act, which is what was being fought over a the Supreme Court today, the Defense of Marriage Act creates a real problem specifically for the military because that act, says the federal government, the whole thing, is banned from recognizing a marriage if the people in the marriage are a same-sex couple. So the military, which is part of the federal government, is recognizing gay people in its ranks, it`s treating them equally to all of their service members now, and wants to, except other services` members spouses and families are recognized by the military, but DOMA blocks the military from doing that for gay service members. Gay soldiers` spouses and families can`t be recognized by the military at all because of DOMA. They have to be seen as strangers in the military. DOMA bans equal treatment even if it was what the military wants. And so, one of the briefs filed in today`s case urging the court to overturn the gay marriage ban was filed by more than 30 former high ranking, former military officers and Defense Department officials and military organizations. Quote, "The Defense of Marriage Act prohibits the military from providing all service members and their families with necessary care and support. DOMA discriminates against certain legally married service members and their families by denying them numerous benefits including healthcare, equal pay, educational assistance and survivor benefits. The question is whether the military should be permitted to provide equal treatment to all legally married service members and their families, or if it must discriminate against certain service members and their families in a manner that research, experience, and common sense show is harmful to service members and to the military collectively. For those experienced in military leadership and familiar with military values, the answer is easy. You know, fights over issues like these used to be predictable, right? You`d have gay people and liberals who like gay people on one side and you`d have everybody else either on the other side of the fight or trying to stay out of it. The chief justice talking ruefully about a sea change of the politicos here. Well, part of that sea change is seeing the military, seeing these veterans groups and defense officials and flag rank officers as one of many non-usual suspects who are willing now to stand on the side that used to be frankly way more lonely. Joining us now is Nicolle Wallace, former senior advisor for the McCain-Palin campaign, who helped make happen one of the other non-usual suspects to take a pro-gay rights stand at the court this week. Nicolle was more than 130 Republican Party bigwigs to sign this brief in yesterday`s case, urging the court to strike down California`s anti-gay Prop 8. Nicolle, it is great to see you. NICOLLE WALLACE, FORMER GEORGE W. BUSH COMM. DIR.: Thank you for having me back. MADDOW: You like being one of the non-usual suspects. Yes, it sort of scrambles my circuits. I do like that -- (CROSSTALK) WALLACE: You know what I thought when I read this, was if the Supreme Court doesn`t strike down DOMA, I wonder if this very, very issue would lead to a congressional repeal of DOMA, because this is such an urgent matter, and this is -- to me, I went straight to the logistics of this. If you were on a base and you`re married and you have kids, are they denied access? Because everything is provided by the federal government. So if you live on a base with your spouse and with your children, are you denied access to child care? I mean, how did they -- (CROSSTALK) MADDOW: They`re denied on-base privileges. I mean, the -- WALLACE: So do you even live on base -- I mean, this is shocking, if heaven forbid your spouse is injured, are you not flown? I mean, this to me seems like one of the most urgent examples of how this affects people`s lives. This is no longer especially for my party, just a question of I simply believe marriage is just a man and woman, which is the sentiment that understandably a lot of people in my party hang on which they believe something different than I do. But this example of military families and the real, I think, damage it can do to military families. And forget about the spouse and children for an instant. Think about the soldier on the battlefield worried about their families. The whole reason we have this promise to the families is so that our soldiers are out there and kicking butt and, you know, doing what they have to do to protect all of us. So, this to me provides such an urgent need to be addressed in a way that really, I hope, can bring some progress. MADDOW: But you know, the concerns of gay service members and their families were not enough to move most Republicans to supporting the repeal of "don`t ask, don`t tell". The difference here I think is that, (a), there`s a lot more to be known, the politics are changing, but the military as an institution is saying, it is greatly disruptive to us as a hierarchical institution where people need to follow orders if our orders are -- if our orders and privileges are delivered unequally. We can`t function as a discriminatory organization. You have to let us stop doing this. WALLACE: I mean, a base -- I mean, I think it`s difficult. People think of the military as this gigantic institution, which it is, but think about just life on a base. I mean, it is so stark, I think it brings into such sharp focus the problem with DOMA. HAYES: You know, there`s been not a peep out of elected Republicans this week. Not a peep, even as everybody else -- WALLACE: I said let me defend my fellow Republicans. You have to start somewhere. MADDOW: Yes, it`s true. I wonder though, I mean, the lawyer the Republicans hired, the House Republicans hire to defend DOMA, Paul Clement, walked right past the press and wouldn`t even talk to them after the argument. WALLACE: Yes, look, he`s a very, very smart, well-respected attorney on the right. So -- MADDOW: But do you think him not wanting to talk to the press and no elected Republicans wanting to talk about this at all this week, even as the whole rest of the country is talking about it, do think it`s in part because of your brief, because these 130 Republicans, including yourself, came out and said, actually, we`re not taking the party line? WALLACE: Maybe and I think there`s a tremendous amount of respect for Ted Olson and for what he`s done. I mean, he`s represented President Bush in Bush v. Gore. I mean, he has a deep well of I think respect and it`s not support for exactly the case that he`s arguing, support for himself personally among Republicans. And I think Republicans are, as I always say, there`s just some that simply disagree with us, but I think that people open to it really are doing a little bit of soul searching. MADDOW: Why aren`t the ones disagreeing with you, who are on the anti-gay side of this, why aren`t they talking? WALLACE: I don`t know. I mean, I think -- and I said it the last time I was here, the political sands have shifted so dramatically that I think you`re now at a case where being against marriage equality, even if it`s simply, I don`t know, I know a minority of Catholics, a majority of young evangelicals, I mean, I can`t even think of a group that would oppose this as a group, or just an individual that may oppose marriage equality, I think it may become sort of thing that people are just quiet and move toward a place that they are maybe embarrassed about. MADDOW: Yes. And that will make the politics of this really weird for a long time. WALLACE: I think it will accelerate the politics very quickly. And we`ll be in a place -- I mean, you know, obviously, our brief was to support overturning Prop 8, but I think, someone said something this week that the movement now has so much strength it could withstand any outcome of the court. Now, I hope that doesn`t happen because I think that people`s lives are hanging in the balance waiting for these decisions, but I think the movement has seized the opportunity to speak directly to the American people about the families behind these discriminatory laws. MADDOW: Nicolle Wallace, former senior adviser to the McCain-Palin campaign, my favorite kind of contrarian, a nice one, it`s really good to have you here. WALLACE: Thanks for having me. Thank you. MADDOW: All right. We`ll be right back. (COMMERCIAL BREAK) MADDOW: OK, fair warning. I am obsessed with this story. This is the USS Guardian back in mid-January stuck in the Sulu Sea off the coast of the Philippines. A giant ship like an avenger class Navy minesweeper being stuck on something is never a good thing. But this one happened to get stuck specifically on a UNESCO World Heritage site, embedding its rudders into a pristine, gorgeous, world heritage coral reef, home to 600 species of fish, 13 species of dolphins and whales, and about half of all of the coral species in the world, and is the national park in the Philippines and is aggressively protected. Early on, once we got stuck on it, the plan was to tow the ship of the reef at high tide. That did not work. In fact, the minesweeper only got more stuck. After many tries to yank off the reef, ultimately, the Navy had to give up the ship. Navy agreed for the first time in more than 40 years to scrap the ship. This $277 million mine sweeper, they decided they have to cut into pieces to finally get it pried off of that reef. They hired giant crane ships to come help lift the pieces of the ship off of the reef and dump them onto a barge. The first crane ship to arrive was this one, the Smith Borneo, but it spent several days trying to drop its four anchors safely near the reef and could do it. Plan B was to wait for the second crane ship, that JASCON 25, a ship that does need to drop anchors in order to remain in position. It somehow uses GPS to stay in place, which is awesome. But, of course, once Plan B, the second ship arrived, the weather got really rough so they still couldn`t get started. It took another week. The salvage operation finally began at the end of February, more than a month after the USS Guardian got stuck on the reef. They started by removing lose equipment and some of the board structures that were relatively easy to take down, stuff like the mast. Then early in March, the whole bridge, look, that whole deck of the ship, was lifted off the ship by crane. And then the truly amazing part: preparing this 224-foot-long ship to be cut into four pieces, through the hull. To make the cuts, the seventh fleet supervisor of salvage said this week, quote, "We have had to painstakingly clear about a two-foot path in the ship, removing everything in our way. They had divers using chain saws and reciprocating saws and underwater cutting tools to just cut a two-foot-wide straight line through the ship, leading ultimately -- look at that -- to this. Yes, that is a cross-section of a U.S. Navy minesweeper, the first big piece of the ship, the bow being craned up into the air yesterday, that piece weighs approximately 250 tons. Look at that. They hoisted it up using one of the crane ships. They dumped it on the barge, and then went back for more. That piece was followed today by another section, an approximately 200-ton piece of the ship containing the auxiliary motor room. So that leaves two quarters of the ship, one half of the ship and two pieces still stuck on the reef but now ready to go. A Philippine coast guard spokesman says the cutting work is expected to be completed by the end of next week, and the remaining 990 tons of steel should be lifted out of there the week after that. Meanwhile, on land, as you might imagine, the grounding of this U.S. Navy vessel has sparked anti-American anger in the Philippines. Shortly after it happened, protesters threw paint at police guarding the U.S. embassy in Manila. The Philippine government not only say they want answers to how this happened in the first place. Look, they`ve got guys in scuba suits out there with tape measures recording the exact amount of inches of reef that we have damaged with our minesweeper. And then we are going to have to pay a by the inch fine. There is still no definitive word on why the USS Guardian got stuck in that reef in the first place, but presumably once all the pieces are taken out of harm`s way, authorities will be able to concentrate fully on finding the answer. And we will keep you posted I promise because I`m uncontrollably obsessed with this story. (COMMERCIAL BREAK) MADDOW: What you`re looking at here is a video recorded by Mark Kelly. Mark Kelly, the husband of Gabby Giffords, the Arizona congresswoman who was shot and nearly killed at a political event she was hosting in Tucson, Arizona, two years ago. Mark Kelly just released this video from the pro-gun reform group that he and Gabby Giffords has since formed. You notice that the video looks a little strange and disjointed with this odd camera angles. That`s in part because the video was recorded in secret from Mark Kelly`s pocket. He recorded this video to demystify the issue of background checks that`s being debated right now in state legislatures and across the country. In this video, he shows getting a background check doesn`t take very long, in his case, five minutes, and 36 seconds. It shows that it`s not very intrusive, and most importantly, it absolutely doesn`t stop you from getting a gun if you legally should be allowed to get a gun. (BEGIN VIDEO CLIP) MARK KELLY, GABBY GIFFORDS` HUSBAND: Today, we`re going to demonstrate what the whole process is and how relatively simple it is. This will not be my only gun. I`ve got a 9 millimeter Ruger, a hunting rifle, a shotgun, a .25 semi automatic pistol. Hey, I was -- you don`t have that Colt 45 any more, do you? I wanted to buy that Colt 45 that was here. UNIDENTIFIED MALE: Two important things. KELLY: Are you under indictment for a felony? No. Have you ever been convicted of a felony? No. Are you a fugitive? No. Are you an unlawful user addicted to marijuana? No. Have you ever been adjudicated mentally defective? No. Are you subject to a court restraining order? No. Have you been convicted in any court for domestic violence? No. OK. Appreciate it. Thank you. UNIDENTIFIED MALE: My pleasure. UNIDENTIFIED FEMALE: You too, take care. (END VIDEO CLIP) MADDOW: Five minutes, 36 seconds later. The point is, background checks are not a pain. Background checks do not infringe on lawful gun owners in any meaningful way. This past weekend, we hit the 100-day mark since the elementary school massacre at Newtown. They tell us that people are supposed to now start forgetting or not caring about this now. We have hit that point, things are supposed to slow down, get quieter now. That is not happening. You just look at the last few days. On Thursday, Joe Biden in New York City with Mayor Mike Bloomberg, press conference calling on Congress to act on the gun bill, Press conference included parents whose kids were among those murdered at Newtown, including Neil Heslin who was front and center after his son Jessie. That same day, in the afternoon, a group called Moms Demand Action for Gun Sense led a march and rally in Harlem to protect the gun safety bill that already passed in New York state. The same day, in Boca Raton, Florida, local activists reacting to news that that state`s gun safety bill won`t include an assault weapons ban. The activists weren`t pleased. In protest, they hung on the trees names of people killed by gun violence. On Saturday, there was a big gun buyback in Atlantic City, New Jersey. Over the course of two days, people turned in more than 2,000 guns, including assault weapons. This was the fifth gun buy back in Atlantic City just since Newtown. Same day, Mayors Against Illegal Guns announces a $12 million ad buy, two ads advocating gun safety legislation in Congress to run in 13 states. The ad support universal background checks, specifically, which of course is supported by nine of 10 Americans, but people on the Beltway say maybe can`t pass Congress. President Obama then devoted his entire weekly address on Saturday to pushing for gun safety legislation. Also, Saturday, Wilmington, North Carolina, Carolinians for Sensible Gun Laws hold a rally in support of gun safety reform. They`re outside of Best Western. You can see it is a crowd that`s small, but inside the Best Western was an NRA fundraiser. The group was pretty deeply focused getting local media attention to what they were doing outside that fund-raiser which is pretty much the point of these things. Then, Monday, hundreds of clergy and parishioners from Episcopal diocese around the country gathered in D.C. to promote gun reform. They marched from the White House to the Capitol. Also on Monday in Atlanta, Georgia, more religious leaders gathering to protest a state bill to force churches to allow concealed weapons on their premises, even if they don`t want them. Those clergy think that`s a bad idea. Hartford, Connecticut, same day, the state`s two senators hold a press conference with Connecticut Against Gun Violence and with the Newtown Action Alliance. See those familiar green ribbons symbolizing support for Sandy Hook. Senators in the group insisting that Connecticut should lead on gun safety legislation and not wait for the federal government to act. And now, Vote Vets, the nonpartisan, progressive veterans group, releases this ad aimed at Arizona Senator Jeff Flake. Watch. (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: I had to pass a background check to join the Marine Corps before I could carry a weapon similar to this one in Iraq. Here at home, anyone can purchase this weapon, no questions asked. I support the Second Amendment, but we have seen what can happen when these fall in the wrong hands. I needed a background check to carry similar weapons in combat. We should rear the same at home. Call Senator Flake, and tell him to support universal background checks. (END VIDEO CLIP) MADDOW: We are more than 100 days out now from Newtown, the Beltway script says we`re all supposed to be over Newtown now, the issue should return to the quiet stasis of the NRA getting everything it wants, even though it represents only a rump, minority extreme view. And the nation that overwhelming wants this issue handled in a centrist way. The Beltway in Washington is trying to follow that same script, but the politics are not necessarily following along. You can say because you expected it to happen that the momentum is stopping, but if you actually look at the news, the day by day, here, there, everywhere, unrelenting, heterogeneous unpredictable pressure for gun reform is off-script. Within the last 24 hours, a conservative Democratic senator with A rating from the NRA just came out in favor of universal background checks, Senator Joe Donnelly. He`s telling local media in his home state in Indiana that he is now supportive of universal background checks. Not only are people not for getting but things are moving. And now, factor in a new round of action by the White House. We`re told in the next few weeks, President Obama will hit the road to pressure specific senators to vote for gun reform. And not exactly separately, you have the organization formerly known as the president`s re-election campaign, Organizing for Action, you have them announcing that tomorrow, they and Mayors Against Illegal Guns are holding 100 events across the country to support efforts against gun violence. The Beltway common wisdom on gun control is that it`s losing steam, as a potent political issue. But, yes, sure, there was once a roiling boiled of urgency after the Newtown massacre. But it is now a low simmer and heat is dropping every day. That`s how it works, right? That`s the line from the Beltway press. But it is not true this time. We have become a different country the last three months. Newtown changed us. You can tell from the way we`re acting and it doesn`t seem like unchanging any time soon. Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL". Have a great night. END