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.

[irliberal]

ALLRIGHT CALIFORNIA!! WOOHOO! 2 states for civil rights, 48 to go! RAH RAH!

[sjc_1]

There used to be laws against interracial marriage. They were not right nor legal and it took a long time to see that as well.

[roger3815]

Last time I check homosexuals paid just as much in taxes as hetero''s. They shouldn''t have to pay for benefits that they are banned from getting.

[joyous88]

its in the constitution,

equality for all,

if you don''t like it take your fascist evangelical asss

and move to country without a constitution

a religious place, you know! Like Iran or Iraq

[tj428]

The Hate threat is a global one, its successful advance in one sector threatens the destruction of every other sector. You can not appease or otherwise surrender to hate in America (George Bush and your fight against terrorism) without simultaneously undermining our efforts to halt its advance in the Middle East.
John F Kennedy said, %u201C United there is little we can not do in a host of cooperative ventures, divided there is little we can do for we dare not meet a powerful challenge at odds and slip asunder.%u201D

We the people who truly believe in freedom and liberty must stand strong together because we do out number the hateful and the oppressor and we can prevail.

[jeannelagu]

Not too long ago California voted not to have same *** marriages. Why do we bother to vote when judges can change the will of the people?

[futureosophy]

What should most be highlighted by this decision is that the foundation of the institution of marriage is fundamentally flawed and that the entire structure has for years been slipping into the sea taking all couples, straight or gay, to a watery grave.

I do not say this because homosexuals don%u2019t deserve the right to be married, they do, but because it would be better to completely strike down the very notion of being married.

http://www.futureosophy.com/2008/05/overturning-marriage.html

[wireferee]

Jeannelagu,%2

[wireferee]

Jeannelagu, you must keep in mind that California is unique in the way laws can be passed. The vote that passed in 2000 didn''t outlaw same-*** marriages. It prohibited the recognition of out-of-state same-*** marriages. Furthermore, through the Proposition, California voters can pass a law themselves by-passing the governor and legislature. That is unique in America. Furthermore, a Constitution is written to protect the minority from the tyranny of the majority, and it''s the Supreme Court''s job to interpret that Constitution. Therefore, neither the legislature nor the people through the Proposition system can pass a law that is unconstitutional or in this case infringes on the rights of a minority. So actually the system of checks and balances worked like it was supposed to...like James Madison said it should, "A constitution is there to protect the rights of the minority from the tyranny of the majority."

[flagship-usa]

Jeannelagu at 05:10 PM : May 16, 2008: Your argument is not a strong one. We The People have but One Constitution that holds this nation together. No State can subvert it.

[alanrobisch]

Gee I heard from this guy in his last time that activist judges didn''t make law. Wow. Each time gay marriages were approved it was a judge that decided not the people. Its truly amazing that a majority of californians a large majority were against this and voted to ban gay marriages yet the courts felt they had the right to create this new breed of marriage for the first time in history and without the approval of the majority. He also thinks they should be decided by the supreme court not the states. Gee I guess we who think this is a democracy should think again.

This isn''t an instance of the legislatures or people ignoring sticky wickets. It is a case of judges that they know better. We have a degree of judicial tyranny here and yet mr cohen wonders why there is a disrespect for judges in this land and a resentment for their overarching decisions that are often not even supported by the document they are supposed to be interpreting

[joyous88]

right wing evangelical BS,

the contitution is clear, equal rights for all,

it does not mention your silly god or *** either

[joyous88]

talk about evangelical BS

the wingnut censor blocks out the word g''a''ays

[sharncedar]

Judges who wouldn''t speak up when Americans were being tortured and denied habeus corpus have now found their voice to protect a perverted minority of rich men''s sons and daughters who act up with their flagrant and grostesque s3xual addictions.

Judges who said nothing about the telecoms spying on American citizens right in California are now raising up indignant to insure the right of perverted sodomites to get a thrill out of playing at "marriage" which is another way of juicing up their thrills, another kind of virtual cross-dressing for them. As these gross sodomites get bored with their little perversions, which are ultimately empty and meaningless, they need to constantly up the ante to get the old thrill back, and that means doing it in public, acting out in a more and more offensive public manner especially in front of children. Thus the sudden "right" to pretend at marriage, just more gender role playing for a thrill.

These judges who wouldn''t protect us from Bush''s illegal patriot act are now finding their backbone to protect as holy and inalienable the right of sodomites to make public displays making marriage something obscene.

Brave California judges, defenders of liberty.

[jimbo554]

Alanrobisch2, do you understand what the Bill of Rights is about? It is there to protect the minority from the majority. The majority does not need to worry about freedom of speech. That is there for the benefit of the minority. The judges did their jobs. They said some rights are so fundamental they cannot be prohibited by the majority.

[joyous88]

Hey! Lets all face it, let''s be real.

The right wing, republicon, evangelical,

is Un American. The judges did their job, the

constitution is very clear on equality for all,

Christians simply do not accept the higher power of the constitution,

they are Un American and a threat to all other Americans

[sharncedar]

That''s a lot of garbage about the constitution being there to "protect the minority from the majority". The constitution is there to protect the majority from the minority. Think about it. What do you think democarcy is? To protect the people from a king, to protect the public from the rich or privileged, to protect the mass of the people from the government itself - in all cases it is to protectt THE MAJORITY FROM THE MINORITY. Is that rocket science? Or does gender bending ruin your intellect as well.

These judges are an elite minority, the sodomites they love and cosset are an elite minority as well (study the demographics of gender twisting perverts, overwhelmingly from upper or upper middle class families). The purpose of Democracy and our constitutions are to protect us from these people, these usurpers of the public authority.

[sharncedar]

And no matter what you say, no matter you do, homosexual behavior will be considered gross and disgusting by the vast majority of people on earth. Like that stinky cheese, some peopel grow to love it but most people think it stinks. You''d have to rewire the human brain to change it. Be glad you live in America where we can tolerate people their stinky gross cheese in private. But don''t go waving it in public or smearing it all over us, WE DON''T LIKE YOUR STINKY GROSS CHEESE metaphorically. The human brain is hard-wired to feel revulsion at certain things - snakes, spiders, stink, human feces, and homosexuality. Judges can''t change it. Calling it "marriage" can''t change it. It''s just bizarre how unreal some people get.

[joyous88]

what you think about homosexual behavior, exactly

like what I think about homesexual behavior, is

irrelevant, the constitution states that we are all

equal, people like you enslaved the blacks, and the

jews, and now the ****''s,

but that does not make it right, it merely makes you

Un American, NO! Anti-American, thats you.

[gaye5]

joyous88, at the top of your note you say...what you think about homosexual behavior....

I cannot see how anyone who thinks that homosexuality is normal,.. The typical sexual practices of homosexuals are a medical horror story - imagine exchanging saliva, feces (which is from an act called rimming, which is using their tongue arouund the ***), *** (into the mouth and ***)and/or blood with dozens of different men each year. Imagine drinking urine, ingesting feces and experiencing rectal trauma on a regular basis.

Every year, a quarter or more of homosexuals visit another country. Fresh American germs get taken to Europe, Africa and Asia. And fresh pathogens from these continents come here. Foreign homosexuals regularly visit the U.S. and participate in this biological swapmeet.

Unfortunately the danger of these exchanges does not merely affect homosexuals, as many men are hetrosexuals, thus passing it on to unsuspecting women.
Those who treat AIDS patients are at great risk of accidents, but also from TB and new strains of other diseases. 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. He said that If AIDS is not eliminated, other new lethal microbes will emerge, and neither safe *** nor drug free practices will prevent them."

[gaye5]

As the net delets certain words I will change it..

The typical sexual practices of homosexuals are a medical horror story - imagine exchanging saliva, feces (which is from an act called rimming, which is using their tongue arouund the second rear end hole), S?X (into the mouth and rare end)
Why is the 3 to 4% of homosexuals pushing the world to change Mum and dad into what ever and all the other things that they want, Hetrosexuals aer now being discriminated against because we want Mum and dad used in schools etc. Come on lets hear from the 97% of the population who want to protect their children against this below..

In the mid-20th century, male homosexuals constituted about 8% of men afflicted with anal cancer; by the mid-1980s, this figure had risen to 72%. (1) The transmission of certain types of human papilloma viruses explains the association of anal intercourse with anal cancer.

In a sample of 735 MSM in San Francisco, 4.6% had hepatitis-C and 81% had hepatitis-B infection. (7) Hepatitis-B appears to be transmitted 8.6-fold more efficiently than HIV-1 among homosexual men, according to a study. (8)

The weakened immune system of AIDS patients brought a resurgence of tuberculosis too. Health care workers that deal with AIDS patients risk getting tuberculosis.

[gaye5]

During the 1990s, syphilis occurred predominantly among African-American heterosexuals in the South and in large cities but another huge outbreaks occurred around 1997 amongst a cluster of homosexuals. 68% of syphilis patients were MSM, among whom 66% were also HIV-positive. By 2003, the incidence of syphilis was on the rise.

It hardly needs mentioning who gets rectal gonorrhoea. Homosexuals also get gonorrhoea in the *** (urethral gonorrhoea) and mouth (pharyngeal gonorrhoea). The male homosexual community is ideally poised to function as a reservoir of the gonorrhoea pathogen.
A 2004 U.S. report mentioned increasing drug-resistant gonorrhoea among MSM; the incidence of this drug-resistant form of gonorrhoea was 12-fold higher in MSM compared to the general population.

Parasitic intestinal infections are common among homosexuals; they result from the consumption of faecal material via rimming and other sexual practices.
Amebic liver abscess, a disease usually found in developing tropical countries is found elsewhere among individuals who have visited these countries and also among MSM. (20)
Between December 1999 and November 2001, multidrug-resistant C. jejuni jejuni was found in the intestines of some male homosexuals in Montreal, Canada, and appeared to have been acquired via sexual activity. And the list goes on and this is what we want for our children...

[gaye5]

Thanks sillywilly4, I am disgusted that our leaders would push this in our schools and put our children at danger, there are thousands of homosexuals coming out of homosexuality but the media wont print it, one can only wonder WHY??.. It appears that many homosexuals have either not had a dad or had a rotten one, and are in fact looking for a father image or they have been got at as a child and as a massive percentage of homosexuals are also pedophiles it stands to reason why they are pushing this through the schools.. I was raped so does that mean that I should be turned off men, no instead I got through it by telling myself that it was only one B and not all men are like that.
We try to educate our population about the dangers to their health in drugs, wrong foods etc so why the hell not homosexuality because of the disease it causes, and especially as their life expectancy is only about 50 years where ours is 70.
Why oh why would our left wing push this on our schools and children who just want to be children, there has to be another agenda.. are they in fact getting at them early for their own use...???

[paris1969]

what is this bad Jewish journalists day? ... first Jonah Goldberg''s diatribe against Hillary and now this guy ... where are the excellent Jewish journalists that could do a much better job for these publications? What he left out here is that reasonable people understand that so social change; i.e. black civil rights, interracial marriage, etc. has ever been gained through the popular vote. This is a civil rights issue not a sales tax proposal for God''s sake ... and for those "Ted Haggard" buddies who are against this, I would just like to ask them: "Who vote for your marriage?" ... yes, even bigoted idiots can legally get married ... that is what is so great about our Constitution!!

[samthetvcat]

---"The purpose of Democracy and our constitutions are to protect us from these people, these usurpers of the public authority."---
Posted by SharnCedar

Faux News (Charles Krauthammer et al) seems to be under the impression that these judges are insulated from voter approval - WRONG! All 4 who concurred with the opinion have had to face retention elections . . . all three Republicans have had to face two.

Chief Justice Ronald George is a great, great judge. Very smart, very thorough, very ethical. Higher caliber than most on the US Supreme Court imo, rules from the center, leads with holdings that stand the test of time. Don''t forget this is virtually the same court that 4 years ago held 7/0 that the same-*** marriages that had been performed in SF were in violation of State Law. If they were truly ''activists'' they certainly had the ''freedom'' to impose their will over public sentiment at that time.

Since then, two laws have been passed by the State Senate which Gov. Schwarzenegger vetoed. So who''s really upholding the will of the people and who is thwarting that will?

Fifty years from now, this Court is going to be hailed as the trailblazer and the Bushies are going to have people asking what they were thinking . . .

[bluestardad]

ONCE AGAIN THE REPIGS ARE TRYING TO GET THIS AS A DISTRACTION WEDGE ISSUE TO ENERGIZE THEIR BASE!

WHILE THEY ARE HIDING IN BATHROOM STALLS, MARK FOLEY IS CHASING MALE PAIGES THRU THE HALLS OF CONGRESS, AND TED HAGGERT IS PREACHING AGAINST IT WHILE SEEING HIS MALE BOYFRIEND!

AMERICA ARE YOU STUPID ENOUGH TO FALL FOR IT AGAIN?

[jimbo554]

Clearly there are some people here who do not understand even the basics about the way our government works. They need to get a little better educated. Democracy is not simply "the majority rules." The phrase "liberty and justice for all" is what it''s all about. I know some people hate to hear that, but that''s the way it is.

[hypnotoad72]

The phrase "liberty and justice for all" is what it''''s all about. I know some people hate to hear that, but that''''s the way it is.

Posted by Jimbo554
-------------

A valid point that leads into a valid tangent: How would you dispense justice to serial killers, rapists, and other vile people?

I will reiterate the key word here: "Tangent". I am not equating *** with serial killers or anyone else. But you said "justice for all". I would like it if you were to define justice.

[hypnotoad72]

Gaye5 11:24pm; Excellent points, I couldn''''t have said it better

Posted by sillywilly4
-----------


Seconded.

[grumpas]

What don''t a lot of you people understand about the word democracy????? How can you call it a democracy when there is a segment of society out there you constantly strive to make certain doesn''t have the same freedoms you do????? It happened with African American''s in the 50''s and 60''s until they finally rebelled. Now it''s happening to ***! Most of you conservative neo con''s freaks don''t have a clue about the Constitution, Bill of Rights or anything else this country has always stood for. Do everyone a favor and either educate yourself or leave and found your utopia somewhere else! My moto ''Live and let live''! What these people do is none of your business!

[jimbo554]

Somebody asked what I mean by justice. Serial killers, etc should be put through the criminal justice process.

I''m not understanding what this has to do with the subject at hand.

[newz4i]

The argument that same-*** and interracial marriage ruins the institution of marriage cannot stack up against divorce.

More children have lost a parent ... a family to divorce than to any person of any color or of any sexuality in the entire history of the institution of marriage.

But for some reason religious fanatics sidestep the issue of divorce. Is this because they want a way out (of a marriage) in case "they" need one?

[hypnotoad72]

What these people do is none of your business!

Posted by grumpa
---------------------------

If it''s nobody''s business, why do they advertise their lives?

As for your other quote, "live and let live", tell that to all the people infected with AIDS and those who willfully spread it to others. (the day somebody responded to a personal ad I made was the day I knew people aren''t lying when they say people will give it freely). Otherwise good and/or talented people have died early and needless deaths and you bet that''s awful!

Some of us speak up out of blind hate for whatever reason. There ARE health risks, and many in the "community" ostracize those who are for relationships. Some of us respond because we DO care. And that''s something many within that "community" don''t.

[ubrew12]

Title: "Jury of Judges Still Out On Gay Marriage"

Well, uh, what are they DOING in that deliberations room anyway??

[wireferee]

hypnotoad72, how do *** and lesbians advertise their lives? We have one parade once a year celebrating who we are, yet every time I walk down the street or walk the mall, I''m constantly bombarded with straight people advertising their lives. Straights are always holding their hands, kissing each other, etc. In the halls of the high school where I work, kids are constantly seen making out. Straights ask each other to marry at ball parks in front of thousands of people, signs in front of churches and halls across America congratulate straight people and their relationships. I can''t say that I''ve seen a single gay couple walk through the mall holding hands more of less with thier hands in each other''s pockets or sucking face like the straight people are always doing. No, hypnotoad72, you tell me how *** and our one parade a year stacks up to constant advertising by the straight people out there like YOU!

[hypnotoad72]

constant advertising by the straight people out there like YOU!

Posted by wireferee
--------------------

Cool. I like the term "straight" better than "ex-gay". But I''m fine with either epithet. :)

[irliberal]

Cool. I like the term "straight" better than "ex-gay".

Posted by hypnotoad72 at 07:13 PM

Now look who''s advertising. And now we know your motivation for posting here. You''ll have to exorcise your self-hatred some other way though I think, because you''ll find no redemption here. Try church. But stay away from priests, k? Especially the *** ones.

[irliberal]

Last line was supposed to read, "Especially the se.xy ones."

[ofbyfor1]

Constitution is written to protect the minority from the tyranny of the majority, and it''''s the Supreme Court''''s job to interpret that Constitution. Therefore, neither the legislature nor the people through the Proposition system can pass a law that is unconstitutional or in this case infringes on the rights of a minority. So actually the system of checks and balances worked like it was supposed to...like James Madison said it should, "A constitution is there to protect the rights of the minority from the tyranny of the majority."

Posted by wireferee at 07:04 PM

Thought this might be worth repeating for those of you who have no clue as to how the Constitution works.

[boudica13]

I am a straight woman and I have never understood the anger against two people that love one another. All the silly sayings are just that. Do you want someone to tell you who to or not to love? Leave religion out of it, cause we all know what hypocrites they are. Stay out of peoples love lives and their bedrooms.

[joyous88]

the constitution states, that we are all equal,

is you don''t like that you should take your

bible and your BS and move to a religious country

you know, like Iran or Iraq

[joyous88]

the neo cons, the republicons, the evangelicals,

they have one thing in common

thay are anti american and they are spying on your bedroom

[joyous88]

i know i know! thats two things

I am just another republicon, can''t count

[joyous88]

bush is a criminal he started all this Spying

sorry to say that McBushCain is the exact same type pf

a criminal

[nearl4511]

Just when you thought that the Democrats have it made in November, along comes an knee jerk voting issue like this one.

It''s a repeat of 2004, when Repubs will try to put gay marriage ban initiatives on ballots just to ensure that all thumpers show up. This is the real erason why Kerry lost Ohio. Another one of those visceral issues that brings out the extremes.

Why can''t they rule on these Right wind touch stones on the off years.
***!

[hypnotoad72]

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

Only 5% of G@ys marry in Canada! (so what''s the fight all about, if nobody does it?)

[hypnotoad72]

(babble including the phrase) "because you''''ll find no redemption here."

Posted by IRLiberal
-------------------

Who said I was looking for redemption from this forum, or from the likes of you?

And what''s wrong with advertising when it''s about doing something right? If I was ashamed or hateful of myself, I wouldn''t exactly be advertising it...

Find another mouth to put words in. You''ll get nowhere with me.

[hypnotoad72]

Just when you thought that the Democrats have it made in November, along comes an knee jerk voting issue like this one.

It''''s a repeat of 2004, when Repubs will try to put gay marriage ban initiatives on ballots just to ensure that all thumpers show up. This is the real erason why Kerry lost Ohio. Another one of those visceral issues that brings out the extremes.

Why can''''t they rule on these Right wind touch stones on the off years.
***!

Posted by Nearl4511
--------------------

And just like in 2004 and previous big election years, the *** love it -- every single time and proving their narcissism by saying it''s always better to address this before rather than after an election because it brings up awareness... amongst other empty excuses that only highlight their hubris and false sense of self-worth even more so.

Wow. The irony. Nice shade of chartreuse.

[justsane-2009]

well, i''m a little late to the game here, but gaye5 has posted so many completely false "statistics" that i couldn''t just let them go. where, oh where are you getting your information from dear? let''s start with your assertion that a "massive percentage of homosexuals are pedophiles"--blatantly not true. pedophiles almost exclusively identify as straight (and frequently married) men. i''d continue, but it''s late and i''m tired. try getting your information from someplace other than right wing "christian" sources...

[irliberal]

I am a straight woman and I have never understood the anger against two people that love one another. All the silly sayings are just that. Do you want someone to tell you who to or not to love? Leave religion out of it, cause we all know what hypocrites they are. Stay out of peoples love lives and their bedrooms.

Posted by boudica13 at 07:50 PM

Very well said! 8-)