Should the Supreme Court impose a nationwide mandate on same-sex marriage?
(CBS News) Heading into arguments for two major same-sex marriage cases this week, the Supreme Court isn't likely to impose a 50-state solution, CBS News chief legal correspondent Jan Crawford said today on "Face the Nation."
"Predicting the Supreme Court is a very dangerous business," Crawford said. "That said, I believe that it's very unlikely the Supreme Court is going to say you have a constitutional right - a broad-based constitutional right to gay marriage. This is a Supreme Court that doesn't really like to get very far out in front of public opinion. Nine states now allow gay marriage. It seems unlikely - and I think people on both sides agree - that they're not going to say to the other 41, 'You've got to change your rules and allow it.'"
The court's cases this week include decisions over whether voters can say no to same-sex marriage as they did with California's Proposition 8, and whether the 1996 Defense of Marriage Act - which defined marriage as between a man and a woman - is constitutional. Austin Nimocks, part of the legal team defending California's Proposition 8, said during a gay marriage panel earlier in the program that the debate is "too young" to be stifled by a nationwide decision.
"That's exactly what we don't need when we see Americans of all walks of life, all different faiths and backgrounds, and creeds, engaging in the marriage debate," Nimocks said. "President Obama said there are people of good will on both sides of the debate, and the last thing we need is to shut down the debate, have the Supreme Court redefine marriage for everybody, instead of letting us work through this question through our democratic institutions. That's why we have them.
"The Supreme Court is not a legislature," Nimocks continued. "We have ballot boxes for a reason and we're asking the Supreme Court not to interject itself in this question."
Evan Wolfson, who heads the group Freedom to Marry, argued that marriage is an issue that should be federally mandated, "not left to every family to have to fight and struggle over."
"When the question of race restrictions of who could marry whom having come before the Supreme Court again, the court having gotten it wrong before they got it right, the court ruled in favor of the freedom to marry - and 70 percent of the American people at that time were against interracial marriage," Wolfson said. "Fortunately, in America we don't put everything up to a vote. We don't force families to put their freedom of speech or freedom of religion or freedom to marry up to a vote."
Conservative columnist David Frum, who once opposed gay marriage but now supports it, said the "single most important question is: How do you maximize the number of children who grow up in stable two-parent households?"
"...Since we've started debating this issue intensely, almost now 20 years ago, the proportion of American kids born outside of marriage has risen from about a third to nearly one-half," Frum said. "We will soon cross - it will become the majority way. While this social crisis is raging, we have been debating this other topic. The two issues seem to have less and less and less to do with one another.
"So my concern is instead of wasting energy trying to make 3 percent of the population the target for all of our anxieties about what is happening to the American family - happiness is happiness," Frum continued. "Let 3 percent choose, let them lead a more fulfilled life and let our redirect our attention to the crisis in the 97 percent where children are being failed by the institution of the family and marriage."
Joining the panel remotely, Baltimore Ravens linebacker Brendon Ayanbadejo, who filed a brief in the court supporting same-sex marriage, agreed with Frum: "Kids really need love from two parents. It doesn't matter if it's a mom and a mom, or a dad and a dad. Kids need love, and kids are not getting enough love in America because kids haven't been going the right way. We need to protect families by allowing same-sex couples to get married."
Family Research Council President Tony Perkins, though, argued a 50-state mandate - something he said would be a "big mistake" - would "move us further and further away from the ideal goal of giving kids a mom and a dad, because by law we would be denying kids a mom and a dad." Perkins also made the case that a social shift toward accepting gay marriage isn't inevitable, "as the media would like us to believe."
"We're far from being at a point where America has embraced same-sex marriage," Perkins said. "The American people, when they've had the opportunity to speak on this, have spoken overwhelmingly: 30 states... have the definition of natural marriage [written] into their statutes."
Wolfson shot back that gay Americans' decision to marry "doesn't change Tony Perkins's marriage."
"My marriage is my marriage, and it means I'm able to share in the same aspirations of commitment and love and support and dedication and connectedness, and that my parents are able to dance at our wedding, and that our family and friends are able to support and celebrate and hold us accountable for the commitment we've made to one another," Wolfson said. "That takes nothing away from anyone else.
"The gay people are not going to use up all the marriage licenses when we enter marriage," Wolfson continued. "and this is not just somebody saying it: We now have nine states - plus the District of Columbia - 14 countries on four continents in which gay people share in the freedom to marry and the results is families are helped and no one is hurt."
