Jury of Judges Still Out On Gay Marriage

Andrew Cohen: Complicated Issue No Clearer After California Ruling

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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Over the past few years the issue of the constitutionality of same-sex marriage has reached supreme courts in Massachusetts, California, Washington, New Jersey and New York. In the course of those bitterly-contested cases hundreds of lawyers have filed hundreds of briefs containing tens of thousands of pages of argument and slick barristers have spent scores of hours in oral argument debating the merits of issue before Democrat-appointed judges, Republican-appointed judges, so-called “liberals,” so-called “conservatives” and so-called “activists.”

The result? A virtual, statistical tie. Twenty learned judges from those states have declared that same-sex couples ought to be afforded the same “privilege” (that is, to be recognized by the state as “legally” married) as opposite-sex couples. Of this number, 6 were Republican appointees and 14 were Democrat appointees. And 25 learned judges have decided that there are still valid reasons why “traditional” marriage ought to be afforded legal recognition while same-sex marriage should not. Of this number, 11 were Republican appointees and 14 were Democrat appointees.

There is not, in other words, anything resembling a clear judicial consensus that has emerged from these cases. The Massachusetts ruling back in 2003 may have generated an enormous religious and political backlash and thereby contributed to the scores of state constitutional prohibitions against same-sex marriage. But the judiciary has neither piled on same-sex couples nor spastically rushed to their defense. That’s important context to absorb as we endure a round of endless (and often silly) commentary about Thursday’s California same-sex ruling.

We have not seen another case of “liberal judges run amok” - six of the seven justices on the California Supreme Court were appointed by Republican governors and three of these GOP-appointees (Justices George, Kennard and Werdegar) voted in support of same-sex marriage. Nor have we just experienced, as the dissenting justices noted, another example of judicial policy-making. Like it or not judges are granted the authority to determine which rights, among our many, are so fundamental to us that they may not be taken away by legislative fiat.

What we have just witnessed in California, and what we saw before in those other states, is a disparate group of judges struggle with a painfully close legal question that reasonable people could and do disagree upon. On Thursday, in striking down the state’s same-sex marriage ban, the California Supreme Court cited its own 1948 decision striking down an interracial marriage ban. It’s not incidental that the United States Supreme Court didn’t follow suit for nearly 20 years -until 1967 - to do likewise. And who among us now would stand on a soap box and declare that interracial marriage has “ruined” the institution of marriage?

Honest judges have come up with candid rulings (read the New Jersey ruling, for example, and then reading the California ruling and then tell me that the judges involved were careless) that have elevated the debate over this contentious issue. For example, you can gain more insight reading these rulings than you can by listening to the claptrap offered by the presidential candidates. Anyone out there think that Hilary Clinton and Barack Obama don’t in their heart of hearts believe that same-sex couples ought to marry? Didn’t think so.

Indeed, now comes the political posturing. Already opponents of same-sex marriage are vowing to negate the California ruling by having voters authorize an amendment to the state constitution that would specifically prohibit such marriage. As amended, the state’s constitution then would not support Thursday’s ruling. But even if this occurs the bell cannot fully be un-rung. There will be thousands of same-sex marriages that were legal at the time they were finalized that would then be de-legitimized by a vote.

On the flip side, it’s only a matter of time before a married same-sex couple sues in federal court to enforce the federal Constitution’s “full faith and credit” clause that is designed to ensure some modicum of uniformity between the states. The language of the clause reads as follows: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state….” In fact, if you are looking for a path that ultimately lands this entire controversy before the U.S. Supreme Court this clause probably is it.

So Thursday ends up being a day when questions in California were both answered and raised. Yes, Republican appointees also can see the merits of same-sex marriage. No, Massachusetts will not forever stand alone in recognizing the right. Yes, a decades-long battle for equal rights in California ends with a victory for same-sex marriage proponents. No, the war continues in the ballot box, if not in the courts. But if you say you know today where all of this is going, or how far the chaos will reach before order is again restored, you’re a better man than I am, Gunga Din.

CBS Radio News chief desk assistant Lauren Seifert contributed to this column.

[guysdigdirt]

As time passes, civil rights are being recognized for gay and lesbian people, and many of the old bigotries tend to fade. But there will always be a few, like some who post here, that will seek to destroy instead of understand. That''''s life.

Posted by IRLiberal

So are you seeking to understand why some people do not want the definition of marriage to be changed? Or are you a hypocrite?

[guysdigdirt]

OMG, can''''t the Religious Right move on to something else? Even the Cuban government is trying to teach it''''s own people that *** should be granted the same protections as straight people.
Posted by jjp735i

So ggays have to be married to have the same protection of rights? I do not see why or how they need to change the definition or marriage to gain their rights or protection.

[guysdigdirt]

Gomer, judging from your ignorant views, it is probably better that you don''''t vote. We are all better off. Thank you. PS, It may be a good idea if you also do not procreate.
Posted by elz523

Somehow there seems to be a correlation in here that you should not procreate if you have backwards beliefs. How does that all relate to the fact that by their orientation ggays cannot procreate?

[elz523]

What we have here is a the people of CA voted not to have bong hole bleeders and lesbians as legally married in that state, what happens after they voted, a bunch of hacks that represent those groups of immoral guilt fed idiots go to a bunch of wortheless judges to have what the peole voted for overturned. That is what is wrong with this country. People vote for something, and it doesn''''t matter. There will always be a bunch of losers that doesn''''t represent the majority of the people and convince judges that the people were wrong. That is why I don''''t vote and never will again, your vote doesn''''t matter, I encourage all people not to vote anymore, you won''''t get what you voted for if your "majority" wins, you will see, it will always be like this. So CA you get the bong hole bledders and lesbians now, good luck you need it.


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Posted by zgomer at 10:19 AM : May 18, 2008

Gomer, judging from your ignorant views, it is probably better that you don''t vote. We are all better off. Thank you. PS, It may be a good idea if you also do not procreate.

[jon2012-2009]

Lots of bigotry and hate around these days.
Posted by IRLiberal at 11:42 AM : May 18, 2008

It''s sad and unfair. I mean I don''t support any religion and I see all these religious messages on TV and along freeways. Believers of religion can practice their beliefs and even get tax breaks. But g@ays can''t just be ga@ys even when the courts say the Constitution is not sexual-orientation-specific.

I can barely tolerate that religion targets the uneducated and the youth, the naive and ignorant, takes their money to buy their place in heaven. I can barely tolerate that religion cannot meet any standard of empirical proof and wastes the economic potential of a broad swath of the populace who spend their time going to church and studying the Bible.

But no it hasn''t occurred to me to restrict their rights to vote or marry, either of which can be argued to be detrimental to democracy.

[irliberal]

Lots of bigotry and hate around these days. People try to justify it by saying it isn''t bigotry and it isn''t hate... "oh look how disgusting this is!", as if that was some sort of automatic qualifier for damnation.

They forget (or wish to obscure) that being gay isn''t about ***. It isn''t about labels or religion or politics or laws. It''s about who you are capable of loving, body and soul, and being loved by in return. It defines a culture that has existed as long as mankind itself has existed.

Some people really hate gay and lesbian people. I can''t say for sure why. Is it because we''re not 100% like them? Is it because we may not share their religion? Is it because they don''t personally share the same feelings? I don''t know. But it is because of that hatred, exemplified in posts here, a gay man or woman might get shot, robbed, beaten or staked out on a fence in Wyoming and left to die. That''s what it means to hate.

Most gay and lesbian people have the courage to stand up to that hate, and we do. Some give into it, and begin to hate themselves. All I know is that I know who I love, and why, and there isn''t enough hatred, bigotry, rhetoric or ignorance in all the world to change that.

As time passes, civil rights are being recognized for gay and lesbian people, and many of the old bigotries tend to fade. But there will always be a few, like some who post here, that will seek to destroy instead of understand. That''s life.

We are not afraid.

[hypnotoad72]

At least 8 new sexually transmitted germs were identified between 1980 and 1997. Dr. Max Essex, chair of the Harvard AIDS Institute, warned Congress in 1992 that "AIDS has already led to other kinds of dangerous epidemics. .
Posted by Gaye5
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Which is why the Red Cross doesn''t want homosexual men donating blood. Unknown/undefined risks. If it''s discrimination, it''s for a VERY valid reason. Reality is, gay men do prefer sleeping around. While some "statistics" are inflated, it''s an inevitable truth.

http://www.townhall.com/youropinion/comments.aspx?g=da631144-3223-4c4e-a2a0-68166b617072

Given how few actually do marry (never mind, from my past experience I''ve fully left (people CAN keep it in their pants; it''s not repression to do so), gay men did not care for relationships), I''m inclined to say their actions are about rights but just to be annoying.

[jjp735i]

OMG, can''t the Religious Right move on to something else? Even the Cuban government is trying to teach it''s own people that *** should be granted the same protections as straight people. And we thought they were a backwords government and repressed people?

The Regligious Right needs to look towards it''s own. Now we have another one busted for picking up a young girl after meeting her a chat room. Male hookers, drug use, female hookers, little boys and girls, gay ***, I mean come on, you can''t control your own and yet try to demand we all follow your morals guide. Clean your own house first. Leave the rest of the country alone.

[gaye5]

here is the background for one of the other articles I posted...

At least 8 new sexually transmitted germs were identified between 1980 and 1997. Dr. Max Essex, chair of the Harvard AIDS Institute, warned Congress in 1992 that "AIDS has already led to other kinds of dangerous epidemics. .
The typical sexual practices of homosexuals are a medical horror story - imagine exchanging saliva, feces, *** and/or blood with dozens of different men each year. Imagine drinking urine, ingesting feces and experiencing rectal trauma on a regular basis.
References: 1) Karlen A Sexuality and Homosexuality NY: Norton, 1971. 2) Pines B Back to Basics NY: Morrow, 1982, p211. 5) Cameron et al The longevity of homosexuals Omega 1994;29:249-72. 16) Beral et al Risk of Kaposi''s sarcoma and sexual practices associated with fecal contact in homosexual or bisexual men with AIDS Lancet 1992;339:938. 32) CDC HIV/AIDS Surveillance Report December, 1996. 33) Dooley et all Nosocomial transmission of tuberculosis in a hospital unit for HIV-infected patients J Amer Med Assn 1992;267:2632-35. 34) Biggar Low T-lymphocyte ratios in homosexual men J Amer Med Assn 1984;251:1441-46; Wall Street Jnl 7/18/91, B1. 35) Tveit Casual sexual experience abroad Genitourin Med 1994;70:12-14. 36) Chu et al AIDS in bisexual men in the US Amer J Pub Health 1992;82:220-24. 38) Wetzstein Washington Times 4/12/97. 39) Testimony before House Health & Environment Subcommittee 2/24/92.

[gaye5]

(15) W. M. Janda, M. Bohnoff, J. A. Morello, S. A. Lerner, Jama 244, 2060 (Nov 7, 1980).
(16) T. Berglund, H. Fredlund, J. Giesecke, *** Transm Dis 28, 111 (Feb, 2001).
(17) J. D. Johansen, E. Smith, Acta Derm Venereol 82, 365 (2002).
(18) MMWR Morb Mortal Wkly Rep 53, 335 (Apr 30, 2004).
(19) A. Torre, D. Kershenobich, Ann Hepatol 1, 45 (Jan-Mar, 2002).
(20) C. Gaudreau, S. Michaud, Clin Infect Dis 37, 131 (Jul 1, 2003).
(21) S. D. Wexner, Dis Colon *** 33, 1048 (Dec, 1990).
(22) J. S. James, AIDS Treat News, 2 (Feb 7, 2003).
S. Fletcher, J Assoc Nurses AIDS Care 14, 87S (Sep-Oct, 2003).
(23) G. Hughes et al., *** Transm Dis 28, 379 (Jul, 2001).