Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Whether or not you agree with the latest script changes to the grand, national debate over same-sex marriage-Iowa and Vermont, by different means, now officially join the "pro" side-you can rest easy knowing that the United States Supreme Court isn't ready to jump up onto the podium, seize the stage, grab a microphone, and declare a winner. We are still years away from that.
In part this is because the Justices rarely resolve a dispute unless they have to, under law or in good conscience. How many centuries did it take them, for example, to tackle the scope of the Second Amendment's right to bear arms? In part the delay along the road to a same-sex marriage ruling out of the Justices is that there is great uncertainty right now for potential litigants over who the Court's members will be in a year or two, about the time the first big same-sex ruling would make its way to the Justices.
But the main reason why the Court won't involve itself in the debate is because there is no equal or even disagreement among the states over the legality of the same-sex marriage. There is no pressing cause to broker legal gridlock-one of the Court's most important reasons to take an appeal - because it's way to early to notice much. Counting Iowa and Vermont, there are now only four states in the Union (Connecticut and Massachusetts are the others) which recognize the right of same-sex couples to marry just like their opposite-sex counterparts.
The rest of the states-by more than a margin of ten-to-one-don't recognize that right, either expressly or implicitly. There is no national consensus in favor of same-sex marriage. Indeed, poll after poll suggests a majority of Americans are against it. Same-sex marriage in 2009 is not what desegregation was in 1954 or even what legal abortion was in 1973. The momentum may be on the side of the folks who endorse same-sex marriage-let's wait to see what happens in the pending California case to say for sure-but they will need years more progress before the Court will be expected to resolve this latest intractable conflict between and among Americans.
Will states that currently recognize "same-sex unions" go one step further? Will other states continue to alter their constitutions to prohibit same-sex marriage? What about the impact of these hodgepodge jurisdictions upon the "full, faith, and credit" clause of the Constitution? We've seen dramatic movement in the past five years-in both directions-but there is plenty of movement yet to come. And, until those shifts in legal precedent and political popularity stop rolling in, the Justices just won't (and, in my view, shouldn't) bite. In the sweep of American legal history, the same-sex marriage conflict is a relatively brand-new matter. And the Court doesn't like to decide brand-new matters.
In the meantime, we are left to make meaning of the past week. What's remarkable about Vermont's foray into recognizing same-sex marriage is that the push came from the state legislature, instead of the state's courts. Vermont is the first "same-sex" state to become so in that fashion. It's a manner of recognizing same-sex marriage that by its very nature precludes the argument that the practice is made legal by elite judges who aren't following the mandate of the people. And so Vermont's path to same-sex-marriage recognition will be given more weight by the Justices than, say, Iowa's path. There, the Justices might argue, the Iowa Supreme Court inappropriately usurped an issue properly left to elected officials representing the popular will via the state legislature.
But neither the legislator's stand in Vermont nor the unanimous verdict of Iowa's top judges gives us much meaningful guidance into what the California Supreme Court is going to do with its pending ruling on the topic. Same-sex-marriage advocates are not in a terribly powerful legal position in California-the passage of Prop 8 made their case much more difficult to win-and the justices in California who are pondering the matter are not required to give any precedential value to the laws of any other states. Sure, they'll read the Iowa ruling. But they don't have to follow it; Iowa's citizens didn't expressly vote against same-sex marriage the way California voters did.
After California, we'll turn our curious eyes back to New England, where legislators in New Hampshire, Maine and Rhode Island also are contemplating the "Vermont Plan," a statutory acceptance of same-sex marriage. Years after Massachusetts uttered the first formal words legalizing the practice, we are still much closer to the start of the legal debate than we are to the end.
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