With the Supreme Court set to hear a couple of monumental same-sex marriage cases this week, Saturday's CBS This Morning brought on two law professors to analyze the cases and the likely outcomes. They were not, however, impartial scholars; they were a pair of gay rights activists, Kenji Yoshino and Suzanne Goldberg.
Yoshino is a New York University legal scholar who specializes in constitutional law, anti-discrimination law, and law and literature. He is also an openly gay man who has written numerous commentaries, for various outlets, advocating LGBT rights, including same-sex marriage. But CBS introduced him only as a “specialist in constitutional law now working on a book on the Proposition 8 litigation in California.”
Goldberg is a Columbia law professor and, as CBS noted, the director of Columbia’s Sexuality and Gender Law Clinic. The Columbia Law School website lists one of her specialties as “Immigration and Asylum related to gender and sexual orientation.” She was the founder and past president of the board of directors of Immigration Equality, formerly called the Lesbian and Gay Immigration Rights Task Force.
With analysts like this, it was clear where this discussion was headed. Yoshino and Goldberg both rejoiced at the thought that the Defense of Marriage Act might get overturned. Yoshino couldn’t hide his glee: “With respect to the DOMA case, I'm quite bullish on this. I'm pretty confident the Defense of Marriage Act will get struck down.”
Goldberg concurred: “Yeah, I tend to agree with Kenji. I think we're at the end of the day for the federal Defense of Marriage Act.”
The two professors discussed the cases entirely from the pro-gay marriage side. Co-anchor Rebecca Jarvis helped them out with a broad opening question: “Kenji, what's at stake here?” Yoshino replied that there was a lot at stake: the equal treatment of homosexual couples under the Constitution was hanging in the balance. He framed the cases like this:
"So the two issues that are being teed up in these cases are first the equality claim -- can you say that you're treating gay couples fairly if you're denying them access to marriage? And second, a fundamental right to marriage claim, which is to say shouldn't all Americans have the right to marry the person that they love?"
From the way he asks the questions, you can tell what he thinks the answers are. If there had been a traditional marriage defender on the panel, and if Jarvis had asked him or her what was at stake, he or she would have replied in a much different way. But there was no such panelist there, so CBS’s viewers never got to hear the other side of the story.
Co-anchor Anthony Mason did ask Goldberg what the arguments were in favor of the status quo. Of course, Goldberg was not interested in defending the status quo, so she offered up a lame argument: “The main argument in these cases tends to be that marriage should be reserved to different sex couples because different sex couples can procreate accidentally.”
How about the fact that only opposite-sex couples can procreate at all? What about the argument that children raised by a mother and father enjoy better childhoods than children raised by two homosexual parents? (Goldberg denied that argument, but it has been made before.) CBS at least owes its viewers a fair and balanced picture of this very controversial issue. Unfortunately, by choosing Yoshino and Goldberg to discuss the issue, they failed to do so.
Below is a transcript of the segment:
REBECCA JARVIS: And for more on how the high court may deal with this enormous issue we're joined this morning by Kenji Yoshino of the New York University Law School. He’s a specialist in constitutional law now working on a book on the Proposition 8 litigation in California, and Suzanne Goldberg, a professor of the Columbia University Law School and director of Columbia’s sexuality and gender law clinic. It’s so nice to have both of you with us. Good morning.
BOTH: Good morning.
JARVIS: Kenji, what's at stake here?
KENJI YOSHINO: Well, I mean a huge amount is at stake with respect to the equality and the equal treatment of same-sex couples under the Constitution. So the two issues that are being teed up in these cases are first the equality claim -- can you say that you're treating gay couples fairly if you're denying them access to marriage? And second, a fundamental right to marriage claim, which is to say shouldn't all Americans have the right to marry the person that they love?
ANTHONY MASON: Suzanne, is one of these cases ultimately more important than the other, do you think?
SUZANNE GOLDBERG: I think the two cases are enormously important but they're quite different so the Proposition 8 case is really about marriage at the state level. What do states have to do? Do states have to recognize same-sex couples’ marriages? And the second case, the federal Defense of Marriage Act case, is really about the federal government. Can the federal government deny benefits to same-sex couples who are already married?
JARVIS: And the supreme court is going to be looking at this question on a constitutional basis. What will be the arguments that we hear in that court?
YOSINO: Yeah. So with respect to the Prop 8 case, it's both equality claims that I mentioned and the right to access to marriage claim, the fundamental right claim. With respect to the Defense of Marriage Act claim, it's only an equal protection claim, because the idea there is, look, these individuals are already married in the states that provide marriage.
JARVIS: Nine states.
YOSINO: Exactly. Nine states and the District of Columbia. The fact pattern of the Windsor case is actually a really good way of bringing Suzanne's point home, which is to say that Edie Windsor was with her partner for forty years. Married her in Canada, which was recognized in New York at the end of her – their life, at the end of Thea’s life. When her spouse passed away, Edie was deemed to be her wife for the purposes of New York law, so Thea's remains were released to her, for example. But in the eyes of the federal government they were legal strangers, so she was hit with an estate tax of $363,000, which would not have been levied against her had she been married to a man.
MASON: So what are the arguments going to be in favor of keeping the status quo here?
GOLDBERG: So the argument for the status quo -- the main argument in these cases tends to be that marriage should be reserved to different sex couples because different sex couples can procreate accidentally. Now, you might think – most people might think, well, that's not what my marriage turns on, but that tends to be the argument and the response to the argument has been two things. One, that denying marriage or denying the marriage benefits to same-sex couples has nothing do with whether heterosexual couples procreate accidentally or whether they take responsibility for their children. And the second point is that, as the American Academy of Pediatrics has shown for many, many years and as many other professional organizations have shown, there is no difference in the parenting abilities of gay and non-gay parents. And so the idea that parenting discrimination would come into marriage discrimination really makes no sense.
JARVIS: What do we expect the outcome to be here, and could it be something along the lines of we're going to make this a state by state issue versus a federal issue? Is there room within what’s on the table right now for that to be the case, as it has been previously?
YOSHINO: Yes, absolutely. So, with respect to the DOMA case, I'm quite bullish on this. I'm pretty confident the Defense of Marriage Act will get struck down in part because even the conservatives on the court tend to be states’ rights advocates. And marriage has historically been deemed to be an issue of state law, right? So I think that there's going to be a conflict because the right wing of the court tends to be less pro-gay, but they tend to be more pro states’ rights, and so DOMA, which interferes with states' rights while being anti-gay, presents kind of a problem for them. So I think that's going to go. And I think that's very constitutionally vulnerable.
GOLDBERG: Yeah, I tend to agree with Kenji. I think we're at the end of the day for the federal Defense of Marriage Act. The California Prop 8 case is a little bit different because there, I think if we get to the equality question, it's pretty clear that there is no legitimate reason for states to treat gay and non-gay couples differently for purposes of marriage, but there's a first question, which is can Proposition 8 sponsors actually ask the federal court to take their case, and they're private citizens, so they don't have the same rights as a government there.
JARVIS: Suzanne Goldberg, Kenji Yoshino. Thanks so much. Appreciate it.
