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Legal View with Ashleigh Banfield

Arizona Bill; Michigan Gay Nurses Challenge State's Same-Sex Marriage and Adoption Ban; Google Lobbies for No Google-Glass Legislation

Aired February 25, 2014 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ASHLEIGH BANFIELD, CNN ANCHOR: Does religious freedom give businesses the right to turn away gay customers? In Arizona, the answer will be yes if the governor signs that bill that is right now sitting on her desk. But now even some of the lawmakers who passed it are urging her not to sign it.

Also this hour, is Google going head-to-head with state lawmakers to head off restrictions on driving while wearing Google glass? That tiny little computer in front of your eyes, that wouldn't really be a distraction on the highway now would it?

And, after a blind man uses Florida's stand your ground law to justify gunning down a drinking buddy, the court is forced to give him back his guns. I did say he's a blind man, right? He's getting his guns back. Can't wait for our legal team to take on this one.

Hello, everyone. It is Tuesday, February the 25th. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

This is the biggest question in politics right now, will she or won't she? And, guess what, this time I am not referring to Hillary Clinton and a certain presidential race. I'm referring to this woman instead, Jan Brewer, the Republican governor of Arizona, who is believed to right now be signaling possibly a veto of the latest legislation from the state to set off a firestorm.

As we first reported on CNN, sources are saying that Brewer is likely to veto the bill. It's a senate bill called 1062, SB 1062, better known as maybe the Religious Freedom Restoration Act. It is an act that would shield Arizona businesses and the owners of those businesses from lawsuits if they decide to deny service to certain people based on their own, their business owners' own religious beliefs. The governor, Jan Brewer, spoke exclusively with CNN's Dana Bash.

(BEGIN VIDEO CLIP)

GOV. JAN BREWER (R), ARIZONA: I have a history of deliberating and having an open dialogue on bills that are controversial, to listen to both sides of those issues. I have to look at what it says and what the law says and take that information and do the right thing.

(END VIDEO CLIP)

BANFIELD: So Dana Bash joins me live now with more on this.

Dana, what does that mean, do the right thing? I could see that being either thing depending on how you look at this issue.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: That's right. But according to sources who are close to her, who know her thinking, do the right thing from her perspective is vetoing this bill because she is a very pro-business governor. That's what she considers to be her hallmark of her term there. And she is very well aware of the fact that if she signs this, or at least let's this bill become law, it will have a backlash of really dire proportions when it comes to the economic stability of the state of Arizona.

So as we have been reporting since last night, she is very cautious in her public comments. She was to me there. And she is going to continue to do that until she formally announces her decision. But it is very, very clear to those who are familiar with her thinking that she is going to go back to Arizona. In fact, she's on her way back to Arizona right now from here in Washington, to sort of formally deliberate, but that unless something dramatic happens, she is expected to veto this bill.

BANFIELD: What would be dramatic? Because I was just looking at her past, and her record on gay rights is kind of thin, so it's a little hard to read into her record. However, last year she ended domestic partnership benefits for state employees and I think that speaks volumes to some people. So what could be dramatic that would have her veto this?

BASH: Well, I think that the veto is -- my understanding, according to sources, this is not just my opinion, but that the veto is where she's heading and she's expected to do (ph) that likely.

BANFIELD: Sorry, I meant to say what would happen - what would be dramatic that would have her not veto it. Sorry, I should have posed it that way.

BASH: I see. I see. You know, who - no, that's OK. I mean who knows. You never know what happens in politics. But I think that the thing that we have to focus on, which I think is sort of fascinating is that she seems to be coming at this from much more of a perspective of the effect it would have on businesses, the effect it would have on the economic viability of her state, which she has really pushed hard to make better over the past several years in the term she took over from Janet Napolitano, and, of course, in as well.

And she doesn't want to do anything to jeopardize that. She understands, she has gotten calls from executives at Apple, from executives at American Airlines, she knows that the Super Bowl is going to be here, or at least supposed to be in her state next year. She understands the economic implications and she seems to be coming much more from the standpoint of not hurting the state economically rather than doing the right thing when it comes to not doing anything to promote discrimination. So that's --

BANFIELD: And, yes, it doesn't -

BASH: That seems to be - that seems to be where she's coming from, much more than kind of the social issue, because that's shakier ground because, as you heard her say in my interview with her yesterday, she says she understands where those who are promoting this are coming from, in that they have religious rights and they see this as maintaining their religious rights. Having said that, again, I think it's the economics and the viability of her state that is going to be the issue that's (INAUDIBLE).

BANFIELD: Well, and, you know, Dana, I'll be honest with you, there aren't a lot of polls on it, but the polls that are out there right now don't necessarily suggest that the critics have the people on their side on this one.

You know what, hold that thought, if you will, for a minute. I want to sort of dig into the legal aspects of this and what it really covers. Dana Bash is live for us, but my legal team is also here. They have a lot to say on this as well, defense attorney, former New York prosecutor, legal analyst for CNN, Paul Callan is with me, defense attorney and HLN legal analyst, Joey Jackson. Both of you here with me.

Let's just be real clear on what this means. This is not just the bill that affects gay and lesbian couples. Paul, this can affect a lot of people. It can affect single mothers. It can affect Jews and Muslims, Christians if you don't happen to like them. I mean this is really far-ranging.

JOEY JACKSON, HLN LEGAL ANALYST: Very broad.

PAUL CALLAN, CNN LEGAL ANALYST: Well, it is far-ranging, but in another sense it's sort of - it's sort of cleverly worded also to get around certain things. There's -- I notice there's a provision in the law that says if something previously was illegal or criminal, that's not going to be affected by this legislation. Hence, if there are statutes on the book protecting single mothers or protecting, for instance, African-American people from discrimination, this will not overrule that. However, there's a little loophole here in that there are no laws protecting gays.

JACKSON: Right.

CALLAN: So that's why I believe this law, although it looks neutral on its face, it's a road map for discrimination against gay people.

BANFIELD: So, Joey -

JACKSON: Which is why --

BANFIELD: Yes, go ahead, counselor.

JACKSON: Which is why, in my view, even if she does sign this bill, it will invite litigation, it will welcome it, and indeed, what I believe, is it will be found unconstitutional. You see, Ashleigh, we have this thing in the Constitution and it's called the Equal Protection Clause of the 14th Amendment.

BANFIELD: Fourteenth Amendment.

JACKSON: And it's been applied throughout the years in our history in America to go against issues that relate to discrimination, right? There was that case in 1896, Plessy versus Ferguson, remember that?

BANFIELD: Sure.

JACKSON: Separate but equal, being the law of the land, right?

BANFIELD: Are you seriously asking me if I remember in the 1860s?

JACKSON: Well, in a sarcastic way.

BANFIELD: Heavens (ph).

JACKSON: But, look, it's history. And what ended up happening was, in 1954, Brown versus the Board of Education -

BANFIELD: Yes.

JACKSON: Led to another interpretation of that. And so Equal Protection Clause has to be viewed at evaluating everybody's rights equally. And on the issue of the bill, which I have right here, I'm struck by the language of the bill, which is so broad. Look at this. It's not only, Ashleigh, religious beliefs, but whether or not the exercise is compulsory or central to your larger belief system. And so I think it's very broad-based religiously, it invites discrimination, and it will be declared unconstitutional if it's passed.

BANFIELD: Paul, why hasn't Plessy versus -

CALLAN: I'll take - I'll take your Plessy versus Ferguson and raise you a Marbury v. Madison.

BANFIELD: You know, why hasn't Plessy versus Ferguson applied to gay rights until now? Why hasn't it?

CALLAN: Why hasn't it? Why -

BANFIELD: Why hasn't it extended?

CALLAN: Well, are we talking about the 14th Amendment to the Constitution? With equal protection? It's a very complicated doctrine.

BANFIELD: Just not a protected class?

CALLAN: Well, no, no. What the law is - what the 14th Amendment says is this. If you're going to have - if you're going to treat certain people differently, I call it the "you better have a good reason for it" rule.

BANFIELD: Right. CALLAN: So, for instance, in prison, all right, prisoners don't have the same free speech that we have out in the street. Well, there's a good reason for that. They're prisoners. OK. So whenever you treat people differently, you've got to establish there's what they call a compelling state interest to do this.

Now, in the past, of course, there's sort of been this tradition that we don't recognize gay marriage, we don't recognize gay couples. So it was sanctioned under the 14th Amendment. But society is changing, culture is changing and the courts now are saying -

JACKSON: Right.

CALLAN: You know something, there doesn't look to be that good, compelling interest now to support discrimination against gays.

JACKSON: And -

CALLAN: So the law has changed through the years.

JACKSON: Absolutely. And in any amendment, Ashleigh, what's done is a balancing test is done, right? We have this First Amendment. We know all about it. It's the freedom of speech, right? But we can't say anything and everything we want, because it could be defamatory. We can't yell "fire" in the theater.

We have the Second Amendment, right to bear arms. It doesn't mean that we can walk around with firearms because there's a regulatory interest. So I get and respect the fact that people have religious rights and religious beliefs. However, when you balance that against other rights, you can't detriment other people. And it's based upon that balancing test that I think this bill, if passed, will fail (ph).

BANFIELD: And by the way, Eric Holder, today, is suggesting that his A.G.'s across the country don't need to defend laws that they don't like. So that would mean that ultimately if Jan Brewer decided to pass this thing, or at least sign it anyway, I think, you know, they're right to suggest there be, probably the next day there would be a challenge.

JACKSON: Right.

BANFIELD: And also leave that A.G., depending on his or her, you know, you know, prevoliction (ph), I'd say to hell with it.

CALLAN: And - but it happened in California, by the way, on that statue -- on the California amendment that prohibited gay marriage. The attorney general would not defend it.

BANFIELD: All right.

CALLAN: And eventually it was thrown out.

BANFIELD: This continues in a different vein, so hold on, you know, both of you because there's a lot more to it and it gets a little deeper and chewier, because I'm going to turn from Arizona to Michigan, where same-sex parenting now is going on trial in federal court. There's a Detroit couple being barred from marrying for from adopting each other's kids. So now comes the experts to say just how good or bad are the parents when it comes to gay parenting? That's coming up next.

(COMMERCIAL BREAK)

BANFIELD: The nation's top law enforcement officer is weighing in on state laws that are similar to the proposed laws that we were just talking about before the break, like those laws that allow businesses to refuse services based on the religious views of the business holder.

In a speech this morning to state attorneys general in Washington, D.C., this man, U.S. Attorney General Eric Holder, said that those attorneys general across the country are under no obligation to stand up for the laws that they consider discriminatory, especially against gay people.

(BEGIN VIDEO CLIP)

ERIC HOLDER, ATTORNEY GENERAL: I believe that we must be suspicious of legal classifications based solely on sexual orientation. And we must endeavor, in all of our efforts, to uphold and advance the values that once lead our forbears to declare unequivocally that all are created equal and entitled to equal opportunity.

(END VIDEO CLIP)

BANFIELD: Recently attorneys general in at least four different states have said no, they refuse to defend bans on same-sex marriage. All of them are Democrats. The Republican president of the state Attorneys General Association says, though, Holder should be staying out of state affairs.

This is a ground breaking day for gay rights, particularly in Michigan, a case challenging that state's ban on same-sex marriage, but not just the marriage, the adoption of the children of the marriages. Two Detroit nurses who between them have two sons and a daughter want to get married, and be the legal mothers of all three children.

And today they are in a federal courtroom for a trial that's going to raise the question, among many other questions, of whether gay or straight couples make better or worse parents, or whether, scientifically, there is any known difference at all.

Cue the experts on both sides, because they're going to be a parade of them going through this courtroom.

JACKSON: Yes.

BANFIELD: And I know the two of you have seen this happen before. Everybody goes out and mines and fingers for the best people to tell their version of the science.

CALLAN: That's right.

BANFIELD: And it's very, very convincing. To me, it's like me who sit on juries and expect, if you're a doctor, you must know best, how can you know different? Explain how this is going to work. Start, Paul, and tell me how this is going to play out.

CALLAN: I'm sort of stunned by this, because when you get into the issue of parenting, and whether a same-sex couple is better than a heterosexual or worse than a heterosexual couple, well, what about single mothers that are out there? We don't take children away from single mothers.

BANFIELD: Or teenage mothers or teenage fathers.

CALLAN: And by the way, there's a lot of -- I hate to say this, but there is a lot of statistical studies indicating that a two-parent household might be -- all things being equal, a better place to raise a child than a single parent household. There are studies that say that.

But we don't say single mothers can't raise kids or single fathers can't raise kids. So to think that a judge is going to look at these two nurses who undoubtedly love these kids to death and know how to raise kids and make a decision, I don't know. Tough.

BANFIELD: And, Joey, how about a heterosexual household that is full of violence, physical and verbal abuse?

JACKSON: It's a wonderful point. See, it's an interesting twist, though, because when you add the issue, you have the original issue of gay and lesbian, so that's an equal protection argument. But the twist here, when you talk about children, is the best interests of the child analysis. So the focus becomes, is it in the best interest of the children to be raised by gay or lesbian parents.

And so what will happen is, as you started out saying, you'll have all these experts opining about who would be better, how would they be better. And in any courtroom, Ashleigh, you have two professors in the room, right? You have the one professor in the room who is arguing their point of view. And that's no, we cannot let gay and lesbians raise children. And they have expert analysis and statistics as to the propriety of their claims and they'll be heard. And then you have the other ones.

BANFIELD: And they're being paid.

JACKSON: And they're being paid, top dollar.

And you have the others who say, look, loving parents, regardless of who they are, regardless of whether they're gay, straight, lesbian, green, yellow, brown, they can be loving parents.

BANFIELD: And they're being paid.

JACKSON: And they're being paid too.

BANFIELD: Top dollar.

JACKSON: Of course.

BANFIELD: And they usually cancel each other out. Many of the courtrooms I've been in, that's what the juries will say. I don't get it. How can two doctors, both equally smart, be so different?

JACKSON: This happens every day.

CALLAN: This is going to be a --

BANFIELD: This is a federal judge.

Quickly, can you just -- because I've got to get on to the next segment. This is a federal judge. What ramifications is this for the rest of the country? This is Michigan. What about me here in New York or Connecticut?

CALLAN: His district is strictly a district in that geographic area, but it sets a precedent that can be used nationwide and the eventually the U.S. Supreme Court will weigh in.

JACKSON: But it doesn't mean that the precedent will be followed. Regardless of what this judge says, Ashleigh, does not mean that another jurisdiction would be inclined to follow it or should follow it. Let's see what the judge says.

BANFIELD: The floodgates are open to this debate. I don't care where you stand on it. You've got to discuss it. You have to be part of this dialogue across this country, this watershed moment.

JACKSON: Loving parent are loving parents.

BANFIELD: Gay, straight, pink, black, white, green, honestly.

CALLAN: We've got to move on.

BANFIELD: That's for tomorrow. You have to wait for tomorrow.

CALLAN: OK. I'll wait.

BANFIELD: Class dismissed.

Hey, Google tech -- the giant tech company, Google, is ready to take on states, and the states trying to limit how drivers use their product, that fabulously fancy-schmancy expensive Google Glass.

You know those headsets? You think they're safe if you're driving? Will lobbying the lawmakers actually work for Google?

I've got to explain this one. And you may think differently of Google after this or you may be behind that company.

Legal panel is next.

(COMMERCIAL BREAK) BANFIELD: OK. I love this story. If talking and texting and eating and putting on y'all's lipstick and your mascara while you're behind the wheel is not a big enough distraction while on the highway -- please, who among you has not done this -- how about this thing? This is Google Glass. Hello lover. OK, so you know what this is. It's those glasses with the teensy-weensy computer over one eye, and they're coming soon to a street near you.

And several states are already talking about ways to restrict them. Because, really, what could possibly go wrong while you're driving, right?

Apparently Google does not agree with what I just said and they are on the offensive, too. According to Reuters, Google is lobbying lawmakers in three states to convince them that legislation is not necessary here.

I find this very fascinating. So we reached out to Google. I'm thinking, What? was my question. And this was the answer to a statement. Google was very kind to let us know this.

"Technology issues are a big part of the current policy discussion in individual states, and we think it's important to be part of those discussions.

"While Glasses are currently in the hands of a small group of explorers, we find when people try it for themselves, they better understand the underlying principle that it is not meant to distract, but rather connect people more with the world around them."

I'm starting to get this. Joined now by tech expert and tech analyst, Brett Larson. I'm not sure he agrees. And our legal panel is going to weigh in as Joey Jackson and Paul Callan are here, too.

So, Brett, first to you, I've never -- full disclaimer, I've never had these things on, but I'll tell you one thing. I have been behind the wheel of my parents' very fancy car and their display comes up on the windshield of how fast I'm going and the radio dial. And I thought it was quite helpful so I wouldn't have to look down and distract myself. So that's why I started to wonder if Google might be onto something here.

BRETT LARSON, CNN TECHNOLOGY ANALYST: For that, I think it's a great idea. It's one less thing on your dashboard that you're going to have to look away to.

It's not the GPS in the center console or the GPS down between, you know -- at your steering wheel. Maybe the steering wheel's not adjusted properly so you have to duck your head. It's the information right in front of you. And it's not -- the information that comes up in the Google Glass doesn't go over both of your eyes.

BANFIELD: It's OK. It doesn't block you.

LARSON: It's not like watching a 3-D movie where you're sitting there and stuff is literally flying at you while you're out and about. In this example, you can see that there is the time, which is probably not going to bother you.

BANFIELD: But that's helpful, because it does show you can continue doing what you're doing, especially if it's intricate like paragliding or hang gliding.

LARSON: And that's kind of the point of Google Glass is that it's supposed to just be there to sort of give you some information, as you go throughout your day. I haven't worn them. I've worn other wearable technology that gives you sort of a heads-up display.

People have walked past me on the street with Google Glass on. I think it looks a little strange, but they didn't bump into me, and they didn't walk off the curb or anything like that.

BANFIELD: You were taking it personally.

LARSON: I was hoping I was going to end up in a Vine somewhere.

BANFIELD: Super quickly, I want to just sort of get the nuggets on the legal discussion here, because my first inclination was real knee- jerk.

Oh, what could possibly go wrong? Really, honestly, isn't that a fair reaction?

CALLAN: I'm glad you're not a Luddite, you know?

BANFIELD: I'm not a Luddite. I have a computer.

CALLAN: I think Google -- there is a risk to Google, obviously, if they market this and people get in accidents and there are lawsuits.

But I think, you know, suppose, for instance, it has a thing built in that when you close your eyes or you start to nod off, the change in the altitude wakes you up. This thing could be a safety device if it's designed properly.

So let's not ban it before it's even come out.

JACKSON: However --

CALLAN: It hasn't been --

BANFIELD: Got to love Joey. Joey, get in there.

CALLAN: Speaking of Luddites.

JACKSON: Listen, any state has an interest in ensuring the safety of its drivers. And to the extent that this may be unsafe, then the state, of course, has a regulatory interest to ensure that it is safe.

And so just like on certain cars, right, the dashboard will refuse to work if you want to plug in navigation, you can't do it while the car is operable. And so as a result of that, states need to jump on this of the and the other concern I have is that technology is burgeoning, and so states' regulatory measures are not keeping up with technology. So I think it's important to get ahead of it.

CALLAN: But can't we wait for it to come out -

JACKSON: But not so far --

CALLAN: -- before we ban it?

LARSON: You've hit the nail on the head. The problem with technology now is the technologies are way ahead of legislation.

And the other thing is we can't legislate away common sense. We're not -- you could have --

BANFIELD: Guys, I've got to just -- just to be on record here. I can't talk on a cell phone hands-free without being distracted. I'm distracted right here, by the handsomeness of my panel.

JACKSON: Yeah, right. Not as distracted as we are by you.

BANFIELD: Oh, you're adorable. My Valentine from you.

JACKSON: He doesn't need any technology.

BANFIELD: Oh. Joey. Love you guys. Brett, thank you. And you guys, you are going to have to stick around for further legal discussions.

Coming up, children in California are testing positive with something that had a lot of us shaking our heads.

It's this mysterious illness, but what's a bit frightening here is these symptoms are polio-like.

Doctors do not know what they have on their hands, and this little girl's story might shake you to the core. The story is next.

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