NY Trial Court Strikes Down Marriage Law:
The Associated Press reports:
A judge declared Friday that a law banning same-sex marriage violates the state constitution, a first-of-its-kind ruling in New York that would clear the way for gay couples to wed if it survives on appeal.
  It's worth noting that this is only the decision of a trial court; it will be up to the New York state appellate courts to figure out whether the decision will stand. (Hat tip: Howard).

  Are there any experts on the NY state appellate courts who can make some informed guesses about what the appellate judges will do? If so, please enlighten us in the comment section.

  UPDATE: The opinion is available here. My very quick skim of the opinion suggests that the provisions of the NY Constitution the court relied on are textually identical to the U.S. Constitution's Due Process and Equal Protection clauses, and that the trial court relied on a mix of judicial precedents interpreting the U.S. constitution, the Massachusetts constitution, the Hawaiian constitution, the Washington State constitution, the Vermont constitution, New York law, and Canadian law to justify its result.

  ANOTHER UPDATE: A bit of background on the judge who decided the case is available here.

  YET ANOTHER UPDATE: You can find links to recent state court cases on gay marriage here. And Scrappleface chimes in on this judicial trend with a post, "NY Judge Bans Heterosexual Marriage":
  A day after ruling that New York City must allow homosexual marriages, a state judge today declared traditional heterosexual marriage unconstitutional.
  "Homosexual marriage rests on the bedrock of judicial opinion," wrote Justice Doris Ling-Cohan, "But heterosexual marriage finds justification in little more than religious myth, antiquated tradition and a few unconstitutional state and local laws. These are all hollow arguments when compared with the firm foundation provided by a growing number of judges."
Link via Howard.

Related Posts (on one page):

  1. More on NY Same Sex Marriage Decision:
  2. NY Trial Court Strikes Down Marriage Law:
Instead of "who can make some informed guesses about what the appellate judges will do?", how about what does the constitution/law really say.

Maybe the NY constitution is either poorly, broadly or stupidly written that this was the right decision UNDER NY LAW?
2.4.2005 9:01pm
arbitraryaardvark (mail):
There's the opinion, via Alas A Blog. I've read it; it's very well researched and argued. I suspect the people of new york would cheerfully repeal that pesky due process and equal protection clause in order to change the result. One factor was that the statute didn't really specify anything anti-gay. The court could have decided on narrower grounds. possible outcome: new statute, new case filed in different court.
- arbitrary aardvark
2.4.2005 9:37pm
Uncle J (mail):
There is already a circuit split in NY state. An Albany court denied a license to a same sex couple, stating that marriage is not a fundamental right (got the link from

Merely changing the statute would not help, since the decision labeled marriage a fundamental right, and NY constitutionally protects sexual orientation as a class. The only legislative "remedy" is an amendment. Barring overturn on appeal (I have no idea on that, either), a hate amendment is the path that must be followed.

I suspect that NY will be similar in composition to Mass., and their ruling looks like it will stand.
2.5.2005 12:13am
Anonymous Law Student:
Those assumptions may not be valid- the California Supreme Court, for example, is considerably more conservative than the state's voting record would suggest.
2.5.2005 1:06am
noahp (mail) (www):
Well, a New York judge has discovered a new right that just happens to favor a trendy political cause. The right to gay marriage was peacefully reposing in the New York constitution until this wise judge summoned it out of its hiding place and revealed it in all of its glory to the world. Isn't it great that we've created a group of unelected wise men, smarter than us, trained specially to recognize what type of legislation renders people "unequal" and what legislation does not, to erratically create and un-create policy for us?
2.5.2005 3:55am
Barry P. (mail):
Hey, Noahp:

You don't appear to understand what a constitution is. It isn't a list of the rights that people have - it is a list of powers given to government.

Currently, governments give many priveliges and financial rewards to people who undergo a ceremony in front of a proxy for their god declaring their commitment to each other. Any sensible reading of any sort of equal protection clause would lead one to think that such government reqards can not be predicated upon gender or sexual orientation.

The proper answer to all of this, IMO, is to get government out of the mariage business altogether. Let a marriage be between the two people and whatever higher power they choose to acknowledge, with zero interaction from the state.
2.5.2005 4:41am
kipp (mail):
One man's "trend" is another man's civil rights movement. Those abolitionists in the 1850's and those desegregationists in the 1950's sure were the ultimate trendsters. They all had a common message, too: 'We don't want new rights - we want the rights we're supposed to have already.' You know, the kind of rights important enough for people of privelege to pass oppresive statutes to protect. The kind of privelege so important to certain among us they are incapable of seeing the irrational and immoral nature of exclusion upon which their privelege rests.
2.5.2005 4:48am
FMC (mail) (www):
It's an interesting opinion, and one that reads a lot like the Goodridge opinion, though it takes less care to distinguish the New York constitution from the federal constitution.

NoahP, I don't think the opinion says anywhere that the right to homosexual marriage had been "hiding" in the Constitution all along. The opinion rests on a synthesis of U.S. Supreme Court cases and New York cases and laws recognizing an "evolving commitment to protect and respect same-sex relationships."

Henry Yung, blog comment spam is the worst.

Justice Ling-Cohan does a good job of cutting through the nonsense on the statutory interpretation question and in dismissing the framing of the argument as sex discrimination (p. 50)

The main flaw I find in the NY opinion is the same one I saw in the Goodridge opinion, and which was pointed out in (SJC Mass) Justice Sosman's dissent -- the failure to adequately address possible rational bases for the law. Rational basis scrutiny is undemanding, and her analysis of possible state interests on pp. 34-42 is unconvincing.

She also fails to explain why sexual orientation is a classification on the same level as race (and why, therefore, her repeated analogies to miscegenation laws are valid). She just parrots the rhetoric of the left on this and seems to find the proposition self-evident (unless I missed this somewhere in the opinion).

The final point on which the opinion does not persuade me is the discussion of New York's "evolving commitment" to recognition of same-sex relationships. What does a trend in the legislature have to do with constitutional interpretation? There are also trends in legislatures toward restricting plaintiffs' rights to sue for torts, cracking down on spammers and telemarketers, and banning smoking in public establishments.
2.5.2005 10:09am
John Thacker (mail):
Interesting that the ruling cited Canadian law, when the Supreme Court of Canada recently rejected a right to homosexual marriage.

Such an interesting tactic; cherry-pick all examples which aid your cause and ignore the ones that don't, proclaiming that the examples are part of an inevitable wave of change that you must follow.
2.5.2005 12:30pm
Some Jarhead:
"firm foundation provided by a growing number of judges..."

Yeah - pudding firm.

It is time (again) to explain the difference between adjudicating and legislating; we are a nation that has laws, not the other way around.

One of these days a judge is going to try this in a real state, and the Governor is going to bulldoze the court house (and ride that bulldozer to the White House). I'd at least cut the power to the building before the ink was dry on the opinion.

Judges aren't kings, even if lawyers tend to live like them... (nyuck nyuck)
2.5.2005 12:56pm
One interesting question: will this be appealed at all? Who's going to appeal it? Bloomberg? Spitzer? Aren't both running for reelection shortly? Don't they both want to attract NY's (fairly extensive) gay community? If they decline, does anyone else have standing to appeal?
2.5.2005 2:44pm
Barry P. (mail):

One function of the courts is to *adjudicate* as to whether laws written by politicians pass the most basic of tests: whether they violate federal and state constitutions.

You seem to be arguing that there should be no oversight or correction to unconstitutional laws by the courts - i.e., that a majority may trample the rights of some minority any time they wish by sheer dint of being a majority. That's the sort of "mobocracy" that many right-wingers have argued against in the past.

Do you think it is right and proper for governments to proffer financial rewards and priveliges on citizens based solely upon their gender?
2.5.2005 11:01pm
SupremacyClaus (mail):
Barry: Stop defending judge tyranny with lawyer gibberish. This level of decision is above the judge paygrade, and lies with the legislature. Settle down. We are not children here.

The biggest reason for this development in 2005, rather than in 1905, is lawyer welfare. Family law is nearly extinct, thanks to predatory overfishing practices. This is where the hapless, hard working husband must pay the legal fees of his skank, multi-tatooed wife. He has to give her what she does not deserve, so she may blow it on tootskie and entertain the attorney. Sex with clients is ethical in this business. Fewer hets are stupid enough to fall for that. Family lawyerin' is ahurtin'. It is time for fresh business. The judge is a lawyer running the standard con.

From the NY Code of Conduct, for entertainment purposes only. Please ask any children in the room to leave, before scrolling down.

"DR 5-111 [§1200.29-a] Sexual Relations with Clients.

A. “Sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse.

B. A lawyer shall not:

1. Require or demand sexual relations with a client or third party incident to or as a condition of any professional representation.

2. Employ coercion, intimidation, or undue influence in entering into sexual relations with a client.

3. In domestic relations matters, enter into sexual relations with a client during the course of the lawyer’s representation of the client."

Ooh. They have to wait until the case is over. That just spices the punch even more.
2.5.2005 11:33pm
Guest (mail):
Prof. Kerr,

This thread seems like a prime example of why I imagine that many blogs don't use comments. Very little of substance, lots of one-liners, and after the first 8 posts or so, it devolves into off-topic name-calling.

Balkin has some thoughts here

Not much else in the way of thoughtful analysis out there.
2.5.2005 11:57pm
SupremacyClaus (mail):
If someone denies the Holocaust, they are a liar. What possible scholarly discussion?

Changing the definition of marriage is a legislative grade decision. Even at that level, any change should be confirmed with a voter referendum. It is not a decision for a low level judge to make, nor even for a Supreme Court Justice. Shortcuts reduce legitimacy, prolong painful conflict, failing the prime function of adjudication. See Roe v Wade, a famous short cut. See Dred Scott, Plaintiff in error, v. John FA Sandford. S Ct 60 US 393, another really painful shortcut.

Perhaps, it is a coincidence. The marriage rate has dropped. Up pops a lawyer job opportunity. Judges in lawyer competitive venues love it.

Lawyer rent seeking is a theory. It predicts support at the Supreme Court for homosexual marriage, but not for sheep marriage (no person jurisdiction ... yet). It is neutral on polygamy. Splitting community assets 10 ways: less attractive than 2 ways. If the data fail to support, it's dropped.
2.6.2005 6:58am
I remain puzzled by this eagerness to expand the definition of people who can marry. Married people face capricious family courts and at least 65 penalty clauses in the Federal tax. I read that four million couples live in sin today (including me and my girlfriend), compared with 65,000 in 1960.

The state should get out of this business. Marriage should be a religious rite only, without legal recognition, like communion or bar mitzvah.

Any two adults should be able to register a domestic partnership with all the legal and fiscal consequences of what we today call marriage.
2.6.2005 10:52am
SupremacyClaus (mail):
JDS: I neither agree nor disagree with you that marriage should no longer be a state function. I respect your viewpoint. I am willing to listen carefully to any data and logic you have.

I am certain that you should convince the state legislature of any changes you wish. As a back up, get a voter referendum, and convince the public. If a decision affects more than 5% of the population, it must be kicked upstairs, to the accountable branches. A decision that will affect 50% of people needs to be made by the public. That way, they cannot scapegoat if it is a mistake.

Don't be breakin' in through no back door, sneakin' massive changes in social function by convincin' some skank insurrectionist judge.
2.6.2005 1:07pm