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What Does Allowing Gay Marriage Mean Now?
Aired November 18, 2003 - 10:03 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: For some legal perspective let's go ahead and bring in our legal analyst Jeffrey Toobin joining us from New York by phone.
Jeff, we're having a chance just to look at the decision. And the court in its writing saying that it fully recognizes the huge decision and the huge change that this could make in marriage law, not just in Massachusetts but across the country. Talking about the strong feelings on both sides of the issue, talking about the moral and ethical convictions that people have when it comes to homosexuality.
Interesting enough, when it gets down to it, the court is saying but that doesn't answer and that doesn't go to the question they thought was before them, and that it was a constitutional issue that they felt they had to look at.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Daryn, obviously I have not read the full opinion myself, yet. But this does sound like an enormously important decision. Certainly the most important decision since Vermont.
The Vermont supreme court ordered Vermont to allow civil unions but here it sounds like the court is mandating that Massachusetts allow gay couples to get married.
This is, of course, important for Massachusetts but it's also important to remember that states honor each other's marriages, traditionally. So there will be a big issue of whether and how these marriages which, will start to take place in Massachusetts, are honored in the other 49 states.
KAGAN: OK, a lot of things to go over here. First of all, the difference between what happened here in Massachusetts and Vermont. Vermont was civil unions. Outside of Vermont, states didn't have to recognize those unions.
TOOBIN: I mean, this is all developing as we speak. I mean the law is not clear. But certainly they don't have to recognize the -- they have not had to recognize all of the legal rights that people have in Vermont.
But with marriage, because marriage is -- is different. Marriage is something that is recognized in all 50 states. So the question will be, will these marriages be honored in other states?
KAGAN: The federal government and 37 other states, Jeff, have DOMAs, Defense Of Marriage Acts. How would one come up against the other?
TOOBIN: Well that's a good question. And I don't think I know the answer to that and I think there's going to be a lot of litigation about that. The Defense Of Marriage Act was passed under President Clinton, signed by President Clinton. But it has not stopped the adoption of -- it has not stopped civil unions in Vermont. And I don't think it will stop the Massachusetts from going its own way.
KAGAN: I know we're kind of blind siding you with this and you might not have access to the same wires that I do. So I just want to share with you what the court said. Just this little tidbit here. It said that the state, which was the defendant here, "failed to identify any constitutionally adequate reason for denying civil marriage to same sex couples."
TOOBIN: That's the core of the argument. That is what supporters of gay marriage have said all along, that there is no reason to deny gay people the right to get married except that we simply don't like the idea and marriage is something that is exclusively between men and women.
I don't mean to belittle that argument at all because it is certainly the position of President Bush, it is the position of all of the Democratic contenders for president, even those who support civil unions. There are no Democratic presidential candidates who support gay marriage.
So this decision by the Massachusetts court is well ahead of where most politicians are at this moment.
KAGAN: Well and it seems like you have two different movements moving along very quickly here through the courts, whether it was the Supreme Court striking down the anti-sodomy laws earlier this year, also recognizing the rights of many gays to adopt.
And then what's coming out of Massachusetts today, you have that going down one line. But then through President Bush and the move to even come up with a constitutional amendment to ban same sex marriage. There's a huge moment going on on that side as well. It looks like these are two trains that are just ready to collide.
TOOBIN: And they're heading in -- or -- that's one way to look at it, they're heading to collide. Another way of looking at it is they're going in opposite directions.
One of the interesting -- and I think to many people, surprising implications of the Supreme Court's decision is that even though it was widely hailed the idea you could not ban gay -- you could not make gay sodomy illegal -- that did the not lead to greater popularity for that position.
In fact, there was some public backlash to that, that support for gay rights in public opinion poll went down. And that may be a similar reaction to this gay marriage decision in Massachusetts.
KAGAN: And once again these are very emotional issues with people feeling very strongly on both sides of it. It seems, though, the courts, though, tried to sidestep the emotion and go to just some legal issues, like in the anti-sodomy laws. Privacy here, constitutional rights. And tried to get around the emotion that seems to cloud the issue for many people.
TOOBIN: Lots of luck, trying to avoid the emotional issues when you're talking about marriage. I mean, this is a decision that is, you know, highly emotional, goes to the heart of people's personal lives. It has enormous religious implications.
And though the court may try to lower the temperature, I'm sure the reaction on both sides, that is quite impossible to do.
KAGAN: Well let's go back to the Supreme Court. Do you think this ruling coming today out of the Massachusetts supreme court -- is the next step the U.S. Supreme Court?
TOOBIN: I think it's very unlikely to wind up in the Supreme Court, the U.S. Supreme Court, because this is a decision, as I understand it, decided exclusively under the Massachusetts constitution. And the United States Supreme Court does not review state court decisions of their -- decided under state constitution.
So I think it is unlikely -- I mean, predictions are always difficult to make. But I think United States Supreme Court decisions -- review of this decision is extremely unlikely.
KAGAN: And then, well, just looking at different avenues for people not happy with this ruling, can they go through the state legislature and try to come up with a state law that would then ban what the courts have said would be allowed?
TOOBIN: I think the way this decision can be overturned is to amend the Massachusetts constitution. I think that will be the only sure way to get it overturned.
I think the United States Supreme Court is not a likely option. And the legislature cannot pass a law to overturn its own constitution. Only the constitution can be amended. And I suspect in Massachusetts there will be at least some people talking about that.
KAGAN: All right, well, Jeff, thanks for the legal insight in this.
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