Gay Marriage: Until Order, Chaos

Gay Marriage: 2 gay men kissing over the Supreme Court
Attorney Andrew Cohen analyzes legal issues for CBS News and

Now that it has started, the frenzied legal debate over gay marriage will not end with a ruling by any old California trial judge, or by any old California Supreme Court justice, or even by a ruling from the U.S. Supreme Court itself.

It will not end in Massachusetts, where legislators try to work around a court ruling that requires the state to recognize same-sex marriages. It will not end in Ohio, where legislators recently passed a law that precludes recognition in their state of same-sex marriages recognized in other states. It will not end in New Hampshire, where legislators this week were mulling over a similar law. It will not end in Utah, where this week the House of Representatives banned gay marriage, or in Hawaii, where politicians Friday were arguing over civil unions.

It will not end in New Mexico, where a dispute has arisen between county clerks over whether the state permits (or at least does not forbid) same-sex marriages. It will not end in New Jersey, where a handful of same-sex couples denied marriage licenses have sued the state. It will not end with this presidential campaign, whether or not the issue becomes Willie Horton-ized, and it will not end with any lengthy and complicated attempt to pass a federal constitutional amendment that declares to the world that marriage in America means only the union of a man and a woman.

Like the wrenching debate over abortion, the fight over gay marriage may never end.

Same-sex marriage involves as its subsets just about every top-shelf topic -- politics, religion, sex, family, money -- that renders people unable to consider different points of view. And you can just tell from the tone and tenor of the debate that neither side in the fight is going to be willing to accept compromise anytime soon.

"These people are going to be stopped, aren't they?" someone asked me last week and for a brief moment I didn't know precisely who "these people" were. Were they the people who flocked to San Francisco to get married or the people who rallied against them? Either way, I figure, once we start calling each other "these people" you know we're in for a culture clash the likes of which we've rarely seen.

Putting aside the political, religious, sexual and familial elements of the issue, the legal dispute over same-sex marriage is not terribly complicated. The core question in California and, ultimately, around the country, is whether the denial of the right for same-sex couples to marry violates the constitutional guarantee of equal protection under the law.

In Massachusetts, a majority of justices on the Supreme Judicial Court answered "yes" and while there is no guarantee that their California colleagues will do likewise there is no reason to think that the "equal protection" argument made by proponents of same-sex marriage is nearly as bogus as its opponents claim.

Whether or not the California courts ultimately sanction the marriages now being recognized in San Francisco, it's clear there is now a legal divide in America over whether and to what extent same-sex couples are entitled to the right to be married. Over the next few years, we'll probably see dozens of judicial opinions on the topic, opinions that surely will offer partisans on both sides of the fight plenty of ammunition. Ultimately, the Supreme Court will be asked, and will be forced, to offer a broad opinion on what the federal Constitution says about equal protection and gay marriages.

Ultimately, the Justices will be the ones who will decide what the "ceiling" (or, depending upon your point of view, "floor") will be when it comes to what states may and may not do in making up rules about marriage licenses.

Until then -- until the Justices try to offer order out of the chaos -- gay marriage opponents will focus upon two themes.

The first is that "the people" should have the final word on the issue and that judges should not interpose their own personal beliefs into their decision-making on the topic. This is a false premise. The "people," i.e. the "majority," have plenty of rights and powers under the Constitution. One right and power the majority does not have, however, is the right to take away certain fundamental rights belonging to all citizens, including those who hold minority views.

And who gets to decide when the majority is seeking to exercise its democratic power in an improper way? Judges, of course. You can argue over whether gays have a "fundamental" right to marry under the Constitution but you cannot argue that judges will be the ones who get to decide the question. That's why all this talk of constitutional amendments is more about political positioning than it is about legal strategy. Only a constitutional amendment that comports with the Bill of Rights is going to pass muster with the judiciary. And any state statute that gets passed now with an eye toward prohibiting or endorsing same-sex marriages will similarly face judicial review. The "people" get to elect their representatives and, perhaps when the lobbyists all die off, to dictate public policy. But the "people" do not get to tell each other what the Constitution says and does.

The second theme has to do with that old standby, the "rule of law." Already, San Francisco mayor Gavin Newsom, the man's whose actions precipitated this frenzied debate, has been accused of ignoring the "rule of law." But Newsom is no Judge Roy Moore, at least not yet. Unlike Moore, the former Alabama Supreme Court Justice who violated a federal court order to remove the Ten Commandments from a public building in Montgomery, Newsom has not yet violated a court order. Indeed, all he has done so far is to make a determination that California's constitution trumps the state's prohibition against gay marriage and to seek a judicial declaration to that effect. Unless and until the California courts resolve the question, Newsom is acting perfectly within the "rule of law" by raising a legitimate constitutional question.

Gay marriage proponents, meanwhile, also will try to focus upon two themes. And at first glance their two themes also don't figure to have a huge impact on the legal debate. The first theme is the "glass-houses" theme -- that heterosexuals have no exclusive right to the "sanctity" of marriage since half of them have failed in their own marriages. Richard M. Daley, the mayoral scion of Chicago, made this point about hypocrisy last Thursday when he told the papers that he has "no problem" with same-sex marriage. "Marriage has been undermined by divorce," he told the New York Times. "So don't tell me about marriage. People should look at their own life and look into their own mirror." Ralph Nader echoed the sentiment on Sunday when he said he supports gay marriage because "love and commitment is not exactly in surplus in this country … the main tragedy … what undermines marriage is divorce."

Gay rights supporters might win over a few hearts and minds on logic alone but they aren't going to win any court battles with that argument. Just because heterosexual marriage isn't what it used to be doesn't mean that gays have a constitutional right to try it. Likewise, the "same-sex-marriage-has-no-victims" theme is likely to resonate more on an emotional level than on a doctrinal one. When President Bush said he was "troubled" by the same-sex marriage gold rush by the Bay, Newsom invited the President to "come out and meet with the three-plus thousand couples that have committed themselves to one another, committed to a long-term loving relationship with equal status, the same status that he and his wife are afforded. And recognize the spirit and the pride that comes with that."

Spirit and pride are powerful things. And so are the images from San Francisco of happy gay couples getting married. But will those images have an impact on the legal fight? I don't know. Images can be powerful catalysts for formal change; just look at what happened during the Civil Rights movement of the 1950s and 1960s, when television images from the South changed public opinion all over the country. But feelings toward gay marriage seems to have hardened since San Francisco opened its doors to the practice amid the camera's glare. The Boston Globe on Sunday published a poll showing that a strong majority of people in Massachusetts now oppose gay marriage -- a sharp decrease since last November in support for the concept. Clearly, it is going to take a lot more than smiles and glee to convince a working majority on any court that gay marriage is here and ought to stay.

By Andrew Cohen