Kendall Coffey: Gay Marriage Will Be Decided in a Few Years

Kendall Coffey Interviews

Discussing current legal cases, Kendall Coffey appeared on the Steve Malzberg Show on Thursday, December 26, 2013.  Transcript of Kendall Coffey’s quotes below.
Gay marriage in Utah being evaluated by the Supreme Court, falling to Sotomayor to decide whether to uphold the ban on gay marriage.


kendall coffey on the supreme court
Justice Sonia Sotomayor

Kendall Coffey: Most people are not expecting her to reimpose the ban on gay marriage in Utah. What we’re in the middle of is an inevitability. Because the cases seem to be consistently landing in favor of gay marriage, so much so that some have asked ‘Why hasn’t the Supreme Court simply selected one of the cases, chosen an opportunity to speak and settle the issue once and for all? Why is this being battled out stat by state?’  All the more so, when they could have addressed it six months ago when they had two gay marriage cases on their dockets.  There isn’t a clear answer, but it wouldn’t surprise me if the Supreme Court wants to get a little more development in the law, and also that they themselves might still be divided on the issue.  For a court that includes five conservatives, this is not an easy question.


Is it a question of liberal judges or social pressure?


Kendall Coffey: I think they are trying to interpret the Supreme Court’s decision on DOMA, the Defense of Marriage Act.  Some language that seemed to be supportive, not directly, but generally seemed to be a supportive of a constitutional right to gay marriage and I also think that judges at every level see this as inevitable, that this is where the law is going and do not want to be seen as resisting what is portrayed by many as a civil rights issue. It will eventually end up being determined in favor of gay marriage.  When will the Supreme Court step into it? I think in the next couple of years.


When people vote on gay marriage, it is usually to ban it.  Some would say that judges are overturning the will of the people.


Kendall Coffey: Judges will say that they are indifferent to the will of the people, that they don’t read tracking polls. Yet, I think that all of us have a sense that they do indeed care about what the public thinks, even if it directly related to the specifics of a case.  Opposition to gay marriage according to some polls seems to be slowing down.  If it gets to a sufficient level where the Supreme Court thinks that there is in fact a national majority support on gay marriage, then that at that point, they will pick up the question and answer it in favor of a constitutional right to gay marriage.


There is a case in Texas of a woman who is being kept alive in a hospital because she is 14 weeks pregnant.


Kendall Coffey: The family is frustrated with the law, and they’re considering whether to in affect file a court challenge.  The essence of the court challenge would be that she has this tragically impaired woman has some right of privacy to determine her own death with dignity.  What I haven’t developed in the law, and certainly, other people who are not carrying a human life inside them, no question can provide living wills that specify under certain conditions.  Such as when someone’s brain does not seem to have maintained cognitive ability, they have a constitutional right to terminate their life.  This situation, though I haven’t seen a court that says she has the right to end her own life if it eliminates the life of an unborn child.  That is the decision that has to be accepted.  Nor do I know, and haven’t been able to find the details whether she still wanted her own life terminated if she were pregnant. Surely this is not a situation that they would have anticipated at the time that the directive was given, but I would suggest that from a constitutional standpoint, that she is being described as virtually brain dead, it seems to be that there has to be a greater respect for the life of the unborn child, where her own life is irretrievably damaged.

This is not the normal situation of a Roe v. Wade where you have a healthy vibrant person who is in full possession of their power and chooses to invoke a decision of their constitutional right to privacy.  This is someone who is no longer capable of making any decision at all.  So in that situation, do you override the laws of Texas, which says that if there is an ability to keep an unborn fetus alive to maturity then that is what the law requires?  It’s very different than some the cases we’ve been talking about.

Kendall Coffey unborn life rightsI think it’s a fundamentally different question if the woman is pregnant, and I don’t know if there is any evidence that she said she would want to be taken off of life support even with an unborn child.  There’s a lot of discussion between balancing the rights of a woman and the later months in pregnancy.  It’s a much more difficult question when the only life that is able to be saved is that of the child.


Native group suing film producers for negative portrayal of native people.


Kendall Coffey: I think it’s a really tough lawsuit.  Can you imagine all the lawsuits that we lawyers would have filed by now if people who portray lawyers in a negative light were violating something?  My goodness.  And the laws of defamation are much more demanding than these plaintiffs will be able to establish. There’s so many legal issues that seem to stand in the way of this group of plaintiffs to stand any chance in a courtroom.