Supreme Court Won't Rush Same-Sex Ruling
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.
Copyright 2009 CBS. All rights reserved. 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.
Wow, 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