[Banfield:] The Supreme Court could finally be forced to decide the constitutionality of same sex marriage because a federal appeals court in Cincinnati has just upheld a ban, a big one, on gay marriage in Ohio and Michigan and Tennessee and Kentucky. The ruling is definitely in conflict with other federal appeals court decisions that overturn those bans on same sex marriage in a number of states saying, "That's just not right. Gay people should be allowed to marry too." Joining me to talk about the court's role in same sex marriage and what happens next, senior legal analyst Jeffrey Toobin. So here's the thing that I think a lot of people maybe are confused about at times. It seemed like there was this ball rolling across the country and one by one, each of this circuit decisions was going away of gay marriage. And then boom, comes the sixth circuit and said, "No, we're going to keep that ban in place." Why does that all of a sudden get the attention of the Supreme Court when the others did not.
[Jeffrey Toobin, Cnn Senior Legal Analyst:] Because the Supreme Court exists. One of the reasons we have a Supreme Court is to settle disputes among the lower courts. Now we and they happen fairly often. It's not like this is some novel thing. There are often legal issues where some appeals courts decide the same issue one way, some decide the other. That's why we have a Supreme Court. So this pretty much guarantees that the Supreme Court will address this issues here.
[Banfield:] So the Notorious RBG, Ruth Bader Ginsburg...
[Toobin:] Ruth Bader Ginsburg, yes.
[Banfield:] That is truly her blog, right? I mean...
[Toobin:] Well she doesn't have her own blog.
[Banfield:] Well, did OK. Give me a break. So what she said was, now if that court, the sixth, should disagree with the others, then there will be some urgency in the court taking the case. But when all the courts of appeals are in agreement, there's no need for us to rush or step in. Effectively what you just said. Here's what I'm not clear on, why did the sixth circuit see these things because it sounded to me and I'm a lay guy, that it was kind of social commentary, their decision, as opposed to something steeped in actual contemplation of jurisprudence law. I don't get where they were.
[Toobin:] I would put slightly differently. The judge in that case, Jeff Sutton is a very conservative George W. Bush appointee. The dissenting judge was Martha Daughtrey, a more liberal Clinton appointee, these political issues affect the judiciary. Bush nominees tend to look at this issue one way, Clinton and Obama issues judges look at it in another way.
[Banfield:] I usually think that in the Supreme Court.
[Toobin:] It's lower courts too. When you get to really high profile, political type issues like, this...
[Banfield:] Really high profile.
[Toobin:] Absolutely. That's why judicial confirmations are such hot topics in the Senate even with lower court judges because the politics...
[Banfield:] Even Ms. Daugthrey said though but she even made a comment about this. Like you said, circuit court judge Martha Craig Daughtrey. In her dissent, she said, "My colleagues view the plaintiffs as social activist who have somehow stumbled into federal court." This isn't social activism, I means there're cases that need to be decided based on law, not on concept.
[Toobin:] Well, and in fairness to the majority in this case, Jeff Sutton said, "Look, if we are going to look at the original intent of the framers of the Constitution, they did not think that they were legalizing same sex marriage." Which is probably a fair point, except that Martha Daughtrey would respond that we have had lots of cases since then interpreting the Constitution which leads to a conclusion that there is a right to same sex marriage.
[Banfield:] I only have 10 seconds. When is this going to be [inaudible]?
[Toobin:] Probably by June.
[Banfield:] By June.
[Toobin:] Decided by June.
[Banfield:] Decided...
[Toobin:] I think this will take at this term.
[Banfield:] You busy in June?
[Toobin:] I this is what I do. This is...
[Banfield:] It's what you do.
[Toobin:] This is my busyness.
[Banfield:] But you're on contract don't be busy in June. Jeffrey Toobin, thank you.
[Toobin:] No, I have a work plan.
[Banfield:] Stick around because we've got a case that is right up Jeffrey Toobin's alley. Yes, the Supreme Court guy loves really hard rock. And the drummer from a popular band was charged with a long list of dirty deeds yes, this is a hint as to what band. And now the most serious charges against ACDC's Phil Rudd have been dropped. But what happened and what was going on in that courtroom? It's next.