April 8, 2009
Supreme Court Won’t Rush Same-Sex Ruling
Andrew Cohen: A Few States Have Recognized Gay Marriage, But No National Consensus
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Rep. Jason Lorber, D-Burlington, right, gets a hug from Stan Baker following the passage of a gay marriage bill in Montpelier, Vt., Tuesday, April 7, 2009. (AP Photo/Toby Talbot)
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Photo Essay Taking The Plunge In Calif. Festive atmosphere as gay and lesbian couples take their marriage vows.
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Blog Court Watch CBSNews.com Legal Analyst Andrew Cohen's new blog on the big issues and analyzes important cases of the day.
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- Hotsheet: $1.5 Million Spent On Anti-Gay Marriage Ad
- Vermont Nixes Veto, Legalizes Gay Marriage
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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See all 46 CommentsWow, those sure were the days!
But now women get to own property, instead of being property like they're supposed to. We've even allowed them to vote! And we banned slavery after some silly thing called the Civil War and passed laws against polygamy and even bigamy. Along with pesky laws against marital rape.
What a loss for traditional marriage! What is this world coming to?
My opinion (and it is just that) is that all people are born heterosexual...this is just the natural way of gendered animals. I would imagine that a conscious decision would have to be made at some point to engage in a homosexual act, again decide if it is the person's preferred orientation. Being straight myself, I guess I can't really address what goes on in the mind of a homosexual person...perhaps it would be prudent to ask several and see if they all chose, all always felt that way, or if there might be a mixture of both. I am capable of feeling a certain appreciation for what I consider a well-formed male body. Does that make me bisexual? However, I choose not to attempt intimate relations with it. I choose to be straight. I don't think I would enjoy homosexual activity.
Posted by slownewsday05
Sadly you proclaiming something to be the case doesn't make it so.
Posted by VictorMakarov at 5:42 AM : Apr 9, 2009
Well, read your own conflicting posts again, since you apparently missed them the first time:
"You really are a sad individual aren't you." and "Rational people don't argue from "inevitability." ", insinuating the other person was sad and irrational,
both conflict with "More name calling and abuse? Is that all that you are going to do?"
And:
"Sadly when you retreat to ad hominem attacks and petty arguments from emotion you damage your cause. Would you care to try again? "
conflicts with your ad hominem (and yes, it is ad hominem, if you read any dictionary definition more than one meaning deep) attack "If you had thought through what I asked you (and apparently you can't) you would see why."
If you cannot understand that, then your fundamental logic and reasoning is flawing. And yes, I have just proved it. If you are going to claim it's incorrect, prove it's incorrect.
Sadly you proclaiming something to be the case doesn't make it so.
"--------More evidence that you conflict yourself. Don't like ad hominem attacks unless YOU'RE using them, eh? Hmmm."
Perhaps you should learning what constitutes "ad hominem" before trying to respond?
Posted by VictorMakarov
Nice - a bunch of non-answers. And, for the record, if you check the thread, I asked the original questions which you failed to answer.
Look up "ad hominem" if you don't understand it. I know the dictionary definitions quite well. If you have developed other definitions, that's your own business, but don't expect me to accept them.
You accuse me of insults, but are incapable of anything but them, yourself.
If you want to discuss things, fine. If you just want to air your superiority complex, bug someone else with it.
You asked a question. I answered "taxes", then submitted two questions to you which you have entirely failed to address. Dismissing them as "irrelevant" is not a an answer.
You have obviously never formally debated.
Answer my two questions honestly and completely, and I will entertain more of yours, but not until then.
So - to repost for you:
"Who is forcing you to get a gay marriage?
And if they aren't, how in the world are you being dragged along for the ride? "
They are valid because you say they are? Really? Yet for some reason you don't want to attempt an answer to my very simple question. I'll give you credit, you tried a rather vapid response with your "taxes" answer to the first question, but since that time you've been nothing but abusive. Why?
Oh by the way what you just tried is a recognized logical fallacy. You are going to have to do better than that.
"-------The right answer is to mind your own business, and allow the government to do what it is legally obligated to do."
You seem to have a fundamental misunderstanding of what the government is "legally obligated to do."
"-------Your inability to answer any questions with anything other than "no, you are wrong" and "can you guess the answer?" is a strong suggestion that you have no actual argument."
I asked you a few questions. You have yet to even attempt an answer to most of them. You are the one who is responding in a rather curious manner. It's quite telling.
"-------Do you even read what you write? You conflict yourself constantly. Can't eat your cake and have it, too, Vic."
Sadly you proclaiming something to be the case doesn't make it so.
"--------More evidence that you conflict yourself. Don't like ad hominem attacks unless YOU'RE using them, eh? Hmmm."
Perhaps you should learning what constitutes "ad hominem" before trying to respond?
If you had thought through what I asked you (and apparently you can't) you would see why.
Posted by VictorMakarov
More evidence that you conflict yourself. Don't like ad hominem attacks unless YOU'RE using them, eh? Hmmm.
More name calling and abuse? Is that all that you are going to do?
Rational people don't argue from "inevitability." Such predictions have a way of failing.
Posted by VictorMakarov
Do you even read what you write? You conflict yourself constantly. Can't eat your cake and have it, too, Vic.
Sadly when you retreat to ad hominem attacks and petty arguments from emotion you damage your cause. Would you care to try again?
"--------- Talking point? It was my question to you."
No, it's a talking point. You didn't invent the question, and the question is irrelevant. If you had thought through what I asked you (and apparently you can't) you would see why.
Posted by VictorMakarov
My questions to you are all valid, Mr. Dismissive - do you have ANY logic to back you up, or are you just a religious zealot? That's not an "attack" - I am just trying to understand your angle. If you see it as an attack, then you probably are what I am asking about...
The right answer is to mind your own business, and allow the government to do what it is legally obligated to do.
Your inability to answer any questions with anything other than "no, you are wrong" and "can you guess the answer?" is a strong suggestion that you have no actual argument.
They already tell me WHAT I can smoke.
"The choice to be homosexual..."
Do you really believe orientation to be a choice? At what point did you make your choice? I am a straight male, and there was no time in my life when I considered whether I wanted to go after Betty or Billy. I think this was set for me at birth, and signaled to me when I had some discomfort while seeing Tina Turner and the Ikettes in mini-skirts (Ike did notthing for me), or Barbara Eden, or Marcia Brady, Linda Ronstadt, etc.
But, I agree with most of what you say
Nice try, but that won't work. :)
You really are a sad individual aren't you. You know nothing about me, yet you want to attribute a bunch of nonsense to me? Do you realize how fallicious and stupid such a tactic is? Your hate filled diatribe is quite telling as to the position from which you are arguing. FYI: Arguing from such emotion is a terribly tenuous position.
"---------A fallacy. Gay marriage doesn't have anything to do with you, your church, your religion or your rights. Nobody is forcing you to get a gay marriage. Nobody is attempting to force any churches to marry gay people. This is about CIVIL MARRIAGE, not RELIGIOUS MARRIAGE and the two concepts are totally and completely separate. You claim to be persecuted because you believe it helps you justify your bigotry. I have news for you - no honest mind would buy that."
More name calling and abuse? Is that all that you are going to do? I will point out that your premise is quite faulty as I mentioned absolutely nothing about religion. You seem to be assuming quite a bit. Moreover, I would ask you to explain the cases of the Ocean Grove Camp Meeting Association, Elane Photography and E-Harmony.
"---------Great. Move to Canada. oh wait. They have gay marriage. How about the Netherlands? Nope, you can't go there either. Norway, Spain, Sweden, South Africa, Belgium, all out. Better move quick, bigot. You're likely to run out of places to move TO."
You really missed the point. Try again. Think hard. No one said anything about "religious bigots" moving. Think about what the circumstances were in previous times where "it became necessary for one people to dissolve the political bands which have connected them with another." (It had nothing to do with anyone moving.)
"------If you think that equal civil rights for gay and lesbian Americans is NOT inevitable then the only fool around here is YOU."
Rational people don't argue from "inevitability." Such predictions have a way of failing.
The question of same-sex marriage won't "ripen", either. There's no reason SCOTUS should not rule now. This issue has divided us long enough.
The Supremem Court permanently crippled itself with its intervention into the presidential election of 2000. The decision to enter the case and appoint a president was so bad, so far beyond reasonable, and so universally derided that they now refuse to rule in cases that desperately need their expertise.
They determined our president once more, in 2008, by refusing to hear cases brought before them asking that Barack Obama produce the same ORIGINAL birth certificate that John McCain did. Had they upheld the Constitution and forced Obama to prove he was qualified for the office he sought, I believe Mr. Obama would have gracefully withdrawn.
Of course, that would have aggravated Democrats and SCOTUS couldn't do that. They're asking Congress for a raise, you know, and they certainly don't want to offend the reigning party.
See? In the end it's still about money, even with the Supreme Court. When someone figures out how to make big bucks off same-sex unions they'll become legal PDQ.
You are mistaken, I didn't misinterpret you at all. My question remains the same, why are taxes relevant? Can't the government collect taxes in any way that it wishes regardless of marital status? Why does the goverment give "tax breaks" to those who are married? (This goes back to the question that you can't answer.)
"--------- not the case. Go fish."
Really now? Then why does marriage exist as an institution? Why does government issue licenses at all?
"--------- I already have my answer - it should be allowed for gays as well as straights.Do you support that, or oppose it? And why? Any logical basis, or just bible thumpery?"
Sadly when you retreat to ad hominem attacks and petty arguments from emotion you damage your cause. Would you care to try again?
"--------- Talking point? It was my question to you."
No, it's a talking point. You didn't invent the question, and the question is irrelevant. If you had thought through what I asked you (and apparently you can't) you would see why.
The only thing that annoys me about some homosexual people is when they try and get special rights by claiming minority status. The choice to be homosexual does not make one a minority any more than the choice to own a pet monkey. If gay people are allowed to claim minority status, then smokers, people who wear '70s disco fashion, and Mac users should be able to as well.
Passing laws made up by liberal legislators and enforced by liberal judges to exalt liberal lifestyles full of desease and violence above conservative lifestyles that are less complicated, speaks highly of political correctness, but says nothing of common sense.
Posted by Aldymac at 3:49 AM : Apr 9, 2009 [end quote]
Thank you.
1st we let inter-religion marriages. Then they had the nerve to let inter-racial marriage happen. You can't just up and treat everyone the same. I mean how could you tell the good people from the bad people. Lets face it, only good white god fearing christian should be able to marry and multiply. And for those who don't understand that was sarcasm. This post was as stupid as the one I quoted.
Passing laws made up by liberal legislators and enforced by liberal judges to exalt liberal lifestyles full of desease and violence above conservative lifestyles that are less complicated, speaks highly of political correctness, but says nothing of common sense.
What people do not "get":
If marriage rights are not granted on a civil basis, the next step is going to be on a religious basis. Gays have been summarily removed from most mainline denominations by being ostracized. And in response they have founded their own denominations or joined the few which do not condemn them.
If acquisition of these rights fail on a civil basis, they will enter litigation based on "freedom of religion". An argument from a freedom of religion standpoint is a lock- even a conservative court would have to decide in favor of gay marriage because because of it's religious meaning in the context of "their religion"- or at least the "equality of religions". Every religion has the right to sanctify marriage and have it registered with the state.
True this may lead to the re-introduction of group marriage, polyamory, and polygamy to the culture. But the litmus test for a marriage contract needs to be based on the consent of the parties involved and not a religious moral test.
What we are seeing here is a moral test, based on religious mores. Since a religious test is specifically disallowed by the constitution, the state must grant any form of marriage sanctified by a religion assuming the participants enter into the agreement consensually.
Freedom, at it's best, allows gays to marry, without limiting someone who may be Amish (As an example) from continuing a luddite existence. Both sets of values need to be serviced and respected by the civil arm of the government.
That is the argument that you can expect to see- and quite frankly- I think even a conservative court would come to the conclusion that the form of marriage, given it's religious basis, cannot be dictated by the state.
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