The Flip Side Of Same-Sex Marriage

CBS News legal analyst Andrew Cohen has some thoughts on a "legal head-scratcher" about same-sex marriage that emerged this week. -- Ed.

Turns out that same-sex couples were unable or unwilling to wait for the nation's intricate justice system to fully resolve the same-sex marriage question before creating another legal head-scratcher—what to do about same-sex divorce? Earlier this week, a trial in Rhode Island threw up his hands and refused to decide whether a same-sex couple who had been married in Massachusetts (where such marriages are legal, remember) could apply for a divorce in Rhode Island (where such marriages are not).

Meanwhile, the named plaintiffs in that landmark Massachusetts same-sex marriage case have split up, as have the folks who were high-profile plaintiffs in California's big same-sex marriage lawsuit. All over the country, in fact, same-sex couples seem to be doing precisely what many opposite-sex couples do a few years or months after they get married—they are getting separated and divorced. People being people, no matter what their sexual orientation, I suppose this was as inevitable as it is disappointing. The courts soon will figure out a solution to the same-sex divorce question just as they are working on some certainty about same-sex marriage. I can't tell you how the Rhode Island case will come out. But I do know that the law cannot delay for long the desire of two consenting adults to separate their lives from one another.

Advocates of same-sex marriage and other gay rights issues have long argued that all gays and lesbians really want in the end is be treated like the rest of society. Opponents of this movement, on the other hand, have long argued that same-sex couples are different because they cannot naturally procreate and because history and our nation's Judeo-Christian traditions have not recognized their unions. This debate will go on forever and cannot be resolved to the satisfaction of all. But what now cannot be disputed is that same-sex couples have proven through their recent break-ups that they are, in this way if not in many others, just like the rest of the millions of us who are divorced. We all have failed to achieve or maintain the "sanctity" of marriage, whatever that means. We all, and for better and worse, have contributed to the demise of the institution as it once was known. So that "otherness" argument that same-sex marriage opponents have used against gays and lesbians seems in this case at least to me to have been knocked down a peg.

I'm a divorced dad. And because I failed at marriage I refuse on a personal level to judge anyone, gay or lesbian, white or black, nice or mean, who is hopeful or courageous (or just plain stupid) enough to give the institution of marriage a shot. In fact, if I were the King of the World, I would preclude any divorced person from ever voting in any election having to do with the same-sex marriage. Why? Because by getting divorced, for whatever reason, I believe we have forfeited our right to preclude others from trying to do better than we have. I feel bad for the same-sex couples who have split. K-Fed and Britney aside, I feel bad whenever any married couple splits up. But it happens. In fact, divorce is about as normal these days, unfortunately, as marriage is. That's a reality, we now know, that also has transcended the once-stout gay-straight barrier.