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New York High Court Rejects Gay Marriage Claim:

By 4-2, the court held that the state constitution does not compel the recognition of same-sex marriages. The matter, said the court, is for the state legislature to decide. It is the first state high court to address the substance of a gay-marriage claim since the Massachusetts decision in 2003.

The ruling, coming from a fairly progressive court in a deep-blue state, has to be considered a significant set-back for gay-marriage litigants. At the same time, it undermines further the arguments of those who have claimed that a federal marriage amendment is needed to block activist courts from imposing gay marriage on the nation. Now we await decisions from high courts in New Jersey and Washington.

More on the substance of the opinion after I have a chance to read it.

not for an amendment:
I don't think this decision undermines the case for a federal amendment. The decision was 4-2, but one other judge did not participate becuase her daughter is an active advocate for gay marriage in California.

So really its a 4-3 decision, and they were at the brink of doing the same thing as Massachusets. That is the argumnet for the amendment, not that the courts have already forced it on us, but that is almost a forgone conclusion. The New York decision only reinforces that idea.
7.6.2006 12:59pm
Brett Bellmore:

At the same time, it undermines further the arguments of those who have claimed that a federal marriage amendment is needed to block activist courts from imposing gay marriage on the nation.


Undercuts it to about the same extent that my managing to make breakfast without burning the house down undercuts the argument for smoke detectors. A problem doesn't have to happen 100% of the time to be worth adressing.
7.6.2006 1:05pm
Goober (mail):
I fail to see how this represents a potential "problem." The state constitution was adopted under the authority of the good people of New York, who are free to amend it further if they desire. Since this case proceeded under a state constitutional claim, I'm not entirely sure why people outside of New York should be terribly troubled how New Yorkers choose to define marriage. This was emphatically not a case about whether New York same-sex marriages have to be respected by, say, New Jersey or Connecticut.
7.6.2006 1:19pm
Steve:
Are we now in favor of amending the U.S. Constitution based upon the "one percent doctrine"?

A smoke detector, indeed. Most people consider amending the Constitution to be just a little more serious than installing a smoke detector. If the best argument you can make for an amendment is that "gosh, someday it's possible that another court might make a bad ruling" I'd say good luck arousing the passions of the masses with that one.
7.6.2006 1:20pm
Demosthenes:
The court seems to make a basic category mistake. It characterizes the issue as whether the legislature can rationally confine the benefits/burdens of marriage to opposite sex couples. That is an interesting question, but isn't the real issue. Isn't the real issue whether the legislature can rationally recognize only opposite-sex couples as "married"?

Conceivably, if it felt like it, the legislature could recognize eliminate all the particular benefits or burdens of married persons whatsoever, except the essential one, namely, the ability to have the state bureaucracy describe a relationship as a "marriage." Thus, the question is really whether the legislature can rationally authorize the state bureaucracy to confer the word "marriage" only on opposite-sex couples.

I believe that it's plain the legislature can rationally authorize the use of the word "marriage" only to describe opposite sex couples, for the simple reason that that's how most people use the word. To this day, same sex couples rarely hold themselves as "married," because most people find this usage confusing.
7.6.2006 1:21pm
Aaron:
As interpreted by the Court of Appeals, the New York Constitution confers the most protection of individual rights in the nation. For this court to rule that THIS constitution doesn't compel a recognition of gay marriage... suffice it to say that conservative fears of activist judges are VASTLY overblown. Looks like the right will need a new drumbeat this November...
7.6.2006 1:23pm
PeterS (mail):
Why did Judge Graffeo concur in the judgment, but not in the primary opinion (which would have made a majority)? I've read the opinion just once (and quickly), but I can't figure out why she wouldn't have joined in the Judge Robert Smith's opinion (even if she wanted to write a concurrence)?
7.6.2006 2:00pm
Bryan DB:
My first quick reading presented two interesting issues, which I posted elsewhere.
First, it appears that the NY court felt that, because same sex marriages could be stronger than opposite sex marriages, it was rational for the legislature to ban same sex marriages as a way to prop up opposite sex marriages.

"The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only." [ppg. 5 and 6 of the opinion]

In other words, because same sex marriages are generally strong, and because bringing children into those marriages generally requires forethought, the legislature can rationally bar benefitting those marriages because opposite sex marriages are often crappy.

Second, the Arkansas Supreme Court recently explicitly rejected the idea (presented on ppg. 6-8 of the NY opinion) that there is a rational basis to infer that same sex couples are harmful to children. Said the Arkansas court: "There is no rational basis in the form of studies or empirical data that sustains the regulation [barring same sex couples from being foster parents]."
7.6.2006 2:02pm
SP:
It reemphasizes the problem that a constitution that does not deal in any way with gay marriage can magically be found to be dealing with it after all of these years. This will only get worse as we continue to churn out bad legal minds. And for gay marriage advocates to be like "See? We're really no threat to change the law without putting it up for a vote" - while at the same time engaging in legal actions such as these across the country - is a bit misleading.
7.6.2006 2:07pm
jvarisco (www):
I think the main reason for the MPA is to prevent other states from being forced to recognize marriages from out of state - it is needed to protect DOMA, for the rest each state can change its constitution. You can certainly argue it goes to far - but that does not mean some kinda of amendment is not needed.
7.6.2006 2:18pm
Medis:
Since this is an even-numbered year, it might have been a big deal if the case had gone the other way. But I'm not sure it actually matters otherwise--I doubt most people passionately in favor of a gay marriage amendment are really calculating the likelihood of states adopting gay marriage by litigation.

So, in a logical sense, this event might be seen as undermining this one particular argument, but in my view this issue isn't really being driven by arguments at all.
7.6.2006 2:18pm
Elais:
Is there a fundamental right to marry at all? It seems to be that if there is a fundamental right to marry, then that right can't be denied to anyone.

If there is no fundamental right to marry, then why are only opposite sex marriages allowed? What reason can you give for George Bush being allowed to marry Laura, but not allow Jim McGreevy to marry his partner?
7.6.2006 2:23pm
Syght:
Good points, Bryan DB, but you misread the argument at one point. You argue,


Second, the Arkansas Supreme Court recently explicitly rejected the idea (presented on ppg. 6-8 of the NY opinion) that there is a rational basis to infer that same sex couples are harmful to children. Said the Arkansas court: "There is no rational basis in the form of studies or empirical data that sustains the regulation [barring same sex couples from being foster parents]."


However, Judge R. Smith's opinion never asserts that the rational basis of the Legislature is (or even might be) that same-sex couples are harmful to children. Smith's opinion reads,

To support their argument, plaintiffs and amici supporting them refer to social science literature reporting studies of same-sex parents and their children...What they show, at most, is that rather limited observation has detected no marked differences. ...Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific
evidence, the Legislature could rationally proceed on the common sense premise that children will do best with a mother and father in the home.
[p. 7].


I have not seen this data nor am I familiar with the conclusions of social scientists with regards to child-rearing and homosexual couples. But it does seem to me that Judge Smith's analysis here is on point.
7.6.2006 2:32pm
Syght:
Elais,

The opinion speaks to this point to. You write,


Is there a fundamental right to marry at all? It seems to be that if there is a fundamental right to marry, then that right can't be denied to anyone.

If there is no fundamental right to marry, then why are only opposite sex marriages allowed? What reason can you give for George Bush being allowed to marry Laura, but not allow Jim McGreevy to marry his partner?


But here's the catch: in order to be a "fundamental" right as recognized by the Courts, the right must be "deeply rooted in this Nation's history and tradition" (Washington v. Glucksberg, 1997). And as Judge Smith writes,


In this case, whether the right in question is "fundamental" depends on how it is defined. The right to marry is unquestionably a fundamental right (Loving, 388 US at 12; Zablocki v Redhail, 434 US 374, 384 [1978]; Cooper, 49 NY2d at 79). The right to marry someone of the same sex, however, is not "deeply rooted"; it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.
7.6.2006 2:36pm
josh:
This opinion is simply a series of factual conclusions by the majority -- most of which I disagree with. There's not too much to dicker with from a legal standpoint, except to point out the usual inability of judges to recognize truth in the face of personally held moral beliefs.

Let's look at some of the holdings:

1.The NY legislature has a rational basis to ban gay marriage b/c straight marriage promotes the family (whatever the F that means). I'd like to bring the NY justices (judges? magistrates? what do u call judges in a state where the trial court is "supreme?") to the Cook County juvenile courthouse at the corner Ogden and Roosevelt in Chicago. They could view the thousands of abuse and neglect cases that stream through that court each year -- the thousands of incidents of sexual and physical promotion of family that virtually never are the result of homosexual "lifestyle." The notion that heterosexual couples are any less apt to entirely ruin the "traditional" family is simply not based in fact. Not to say that gay couples are uber-parents. Just that far more "straight" parents rape, beat and cage their children. At least that what the court cases show.

2. No violation of due process or equal protection. Because of Washington v. Davis and its progeny, this canard that there is not malicious intent in these types of laws continues. Of course, the court was correct in finding that the NY Legislature enacting the marriage law oh so many years ago did not intend to discriminate against gays. Ah, but the good fortune we reap from lack of foresight! The truth is, had the question been put squarely to the legislature way back when, methinks they would have voiced an opinion, and possibly recommended lynching. Ultimately, the effect is discriminatory, de facto de jure or any other latin phrase.

I honestly don't understand why courts bother with standards of review in these EP cases -- strict/intermediate scrutiny, rationalized basis, whatever. If the court had been smart it could have backed its way into strict scrutiny and held that the law was sufficiently narrowly tailored to meet the compelling government interest. Just say it and it be so.

The court held that banning gay marriage is not the same as banning interracial marriage (a la Loving). Why? Because it said so.

Those who say their is no animus against gays in the statute's intent or enforcement (even though NY didnt go as far as defining marriage as being solely between a man and woman) must be believed for the same reason (even though, as the dissent recognizes, the very same reasons for supporting interracial marriage bans are given for banning gay marriage).

This is not a legal opinion. It is an edict.
7.6.2006 2:37pm
Medis:
Syght,

I'd actually say that Judge Smith is violating Bayes' Theorem. If "common sense" tells us that there will be a correlation between same-sex parenting and negative outcomes for children, and we look for that correlation and don't find it, then we should revise "common sense".

And we don't need "conclusive scientific evidence" first (which would in fact be requiring proof of a negative). Rather, the degree to which we should be willing to revise "common sense" basically depends on how much evidence we had accumulated for this "common sense" to begin with--which, in this case, is virtually nil.
7.6.2006 2:40pm
Bryan DB:
Syght,
I saw the portion of the opinion to which you refer, but I don't think it supports the holding, and I was trying to avoid being longwinded. What that paragraph seems to say is that, in the face of evidence showing no difference in childrearing between opposite sex and same sex couples, the legislature could rationally assume that there is a difference and then proceed on that assumption. Here, the court admits that the "common sense premise" is not supported by the available data, but then says it's rational to proceed on that premise. That's not common sense, that's no sense.
7.6.2006 2:41pm
Bryan DB:
Syght,
And I should mention that your response to Elais is right on. Whether a right is "fundamental" will always depend on how the right is defined, which is a great trick for activist judges of all persuasions. If the right is "the right to marry," it'll be fundamental; if the right is "the right to marry someone from Bismarck, ND," it won't be.
7.6.2006 2:44pm
Nom (mail):
Elais: even if there is a fundamental right to marry, that doesn't mean any two (or more) people together may marry. After all, "to marry" has always meant a union with someone of the opposite sex. So the fundamental right to do that holds now for everyone - no one in this country is forbidden from marrying - that is, joining in a union with someone of the opposite sex. And just because some individuals have an eccentric view and want to redefine marriage does not mean anything - if I personally define marriage to include the right of two elderly sisters to join in a union for tax and inheritance purposes, the denial of a marriage license to that relationship does not someone violate a fundamental right to marry - because that is not marriage.

Steve: if you are so opposed to constitutional provisions that address no real problem, would you support repealing the thirteenth amendment's ban on slavery? After all, its pretty unlikely that any state will be legalizing slavery in the future, so I guess its just a meaningless add-on to the Constitution today, right? I suppose only judges may "amend" the Constitution to deal with imaginary problems, like sodomy prosecutions running rampant across the country that had to be reined in by Lawrence! Or all those prosecutions for using contraception that had to be reined in in Griswold!(I'm sure you're away of the shenanigans the liberals had to perform to gin up a case there, right?)
7.6.2006 2:45pm
Jamesaust (mail):
NY Court of Appeals: "The Legislature could [rationally] find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only."

So ... heterosexuals have children irresponsibly and therefore need government protection whereas homosexuals who have children are only likely to do so because they obtained them in a manner demonstrating personal responsibility and so do not need government protection. This is nothing more than sophistry.

While I do not disagree with the result, narrowly viewed, of referring the plaintiffs to the Legislature, I find the reasoning to be the height of absurdity. It seems that New York has not only a "rational basis" test but also a "not absolutely impossible in any circumstance" test.

Interestingly, the Court seems to focus upon what the Legislature COULD have concluded rather than any citation to evidence or claim that the Legislature in fact every concluded these rationalizations. (Given their bizarre nature, it seem quite unlikely.)

What's more, I cannot find any point where the Court evaluated whether there would be a constitutional right to various "incidents of marriage" under some other name. (New lawsuit?)

Finally, the Court's reasoning seems to focus on the procreation, raising, and care of children as a incident of marriage. Since virtually 100% of marriage are, were, or will be absent the business of procreating, raising, or caring for children for a significant period of time in the existence of any marriage, it certainly is unclear to me whether the Court has properly reviewed the institution of marriage as it in fact exists, rather than a(n) (important) substrata. In other words, if marriage existed as a temporary state premised solely upon the existence of minor children, then the Court's reasoning might make more sense.

What the Court should have done was to find that while the NY Constitution does not require marriage rights per se for same-sex couples, equal protection and due process require that the Legislature in fact DO consider point-by-point what rights they wish to restrict from same-sex couples and provide a rational basis for each. There are a substantial number of legal consequences to marriage in NY, most of which have nothing to do with children.
7.6.2006 2:46pm
Steve:
if you are so opposed to constitutional provisions that address no real problem, would you support repealing the thirteenth amendment's ban on slavery?

Wow, the things that pass for arguments nowadays.
7.6.2006 2:55pm
Nom (mail):
Jamesaust:
It is black letter law that under the rational basis test the Court only requires that "the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker." The Court is required to imagine any plausible basis for the law, regardless of whether it was in fact the reason considered by the legislature.
7.6.2006 2:57pm
anonyomousss (mail):
oddly for the commenters on a law blog, several commenters seem not to understand that rational-basis review is really "could have been a rational basis" review," not "there was a rational basis" review. all you really need to do to satisfy rational basis is come up with something that looks vaguely like a reason someone could have supported the policy.

the real problem with the decision is the way they decided that no heightened scrutiny was required. the law doesn't discriminate between straights and gays? give me a break.
7.6.2006 2:58pm
JPS3L (mail):
Elais:

The court has held that the liberty clauses of the 5th and 14th Amendments do encapsulate a fundamental right to marry. Loving v. Virginia (upholding a fundamental right to marry). However, the very definition of marriage is between a man and a woman. Thus, what gay rights activists are really asking is not for parity in marriage, but for society to change the very definition of marriage. Moreover, the court has not held that there is a fundamental right to engage in homosexual conduct on either an equal protection basis or a substantive due process basis. Indeed, in the two cases most likely for the Court to have made such a determination, it declined to do so. See Romer v. Evens (rational basis analysis to strike down Colorado's Amendment 2); Lawrence v. Texas (rational basis used to strike down state laws proscribing sodomy). Thus, the court has not yet held that homosexual conduct is a fundamental right in America, let alone hold that such conduct requires society to change its definition of marriage. This is why gay rights litigants have attempted to gain ground in the State courts. The decisions today in New York and Georgia suggest those state courts are not yet willing to add to their state constitutions what is not plainly spelled out in the text of those documents. As I see it, the real problem for any court in such cases is where to draw the line. Once a court holds that intimacy associated with consenting adults creates a zone of privacy that permits conduct that is beyond the reach of state law, then it become difficult to distinguish gay marriage from polygamy or incest or even prostitution. After all, if this were about the privacy between consenting adults, then why wouldn't Mormons be able to have multiple wives?
7.6.2006 2:59pm
jrose:
no one in this country is forbidden from marrying - that is, joining in a union with someone of the opposite sex
The only marriage that makes any sense at all for a gay person is a same-sex marriage - this being true simply because of who they are (gay). By denying a gay person the right to marry someone of the same sex, they are denied the right to marry anyone for whom marriage makes sense (not just denied the right to marry the person of their choice as the dissent argues), and are thus effectively denied the right to marry.
7.6.2006 3:01pm
Nom (mail):
Yes, Steve, your response to my post certainly is a powerful rejoinder. What of the judicial amending in Lawrence and Griswold? Were those huge problems of such a nature that the Constitution should be changed by SCOTUS? I was unaware of the epidemic of people committing sodomy being thrown in prison, or those using contraception being flogged. (the statutes at issue in those cases were never utilized by prosecutors). I understand why you would stand silent (at least on subtance) when your argument about the inadvisability of constitutional amendments that don't address today's problems is so easily turned on you.
7.6.2006 3:02pm
Luke:
JPS3L:

Why should gays have to answer for the possibility of future political activism on the parts of polygamists, the incestuous, and prostitutes? They are responsible for their own actions, not those in the groups you mentioned.
7.6.2006 3:06pm
elChato (mail):
I am a strong supporter of allowing gay marriage as a matter of legislation. I don't think the constitution is the place to obtain this right.
7.6.2006 3:10pm
Nom (mail):
jrose,

The failure here is to understand the menaing of the word "marriage," which means a union of opposite sex people. Many heterosexuals never marry. This may be due to personal predilictions of wanting to be alone. The fact that the law does not grant the benefits of marriage to those people is irrelevant, even if marriage to another person (the only thing recognized by the state as qualifying for those benefits) is not a way for them to be happy. People's personal eccentricities are not permitted to trump any collective judgment on the matter.

If I personally do not want to attend college, but instead want to go to flight school, the fact that the government provides grants for the former but not the latter does not give me the individual right to redefine "college" to include "flight school" despite the fact that my strong personal desire is to fly planes. The fact that the government refuses to include flight school in financial aid for college does not mean pilots are being discriminated against. Sorry.
7.6.2006 3:12pm
Lee, MA (mail):
As I was reading this opinion, and its citations to federal and state due process precedents regarding the fundamental right to marry, the following question (which is not necessarily directly relevant to the same-sex marriage legal or political debate) occurred to me: If marriage (for ease of analysis, consider this to mean the union of one man and one woman) is truly a "fundamental right," could a state constitutionally stop providing civil marriage altogether? Would the state's ability to do so be contingent on it having a compelling interest for its withdrawal from this field, etc?
7.6.2006 3:14pm
JPS3L (mail):
Luke,

It has nothing to do with same-sex couples answering for the behavior of future litigants, it has to do with how courts wish to write precedents that can meaningfully distinguish between, say, same-sex marriage and polygamy. A court's decision sets precedents for other courts to follow. So, if the legal standard used is too broad, then future litigants may be able to fit their own conduct with in the parameters of that court's decision. My point is that if a court can not articulate a rule of sufficient clarity and general applicability, then it should hold the case to be non- justiciable and leave it to the politicians. Because courts could not develop a rule that discovers a right to homosexual conduct or marriage in the Constitution without either (i) applying such a general rule that it would include conduct that was not intended by the court or (ii) drawing a rule that was so narrow that it necessarily discriminated against other forms of conduct that the court itself cannot meaningfully distinguish, they should not be involved in the adjudication of such cases at all.
7.6.2006 3:20pm
Jamesaust (mail):
Nom -
I'm not sure what passes for a "rational basis" test in NY, but in most states a rational basis requires that the government show that it has a compelling state interest in a particular subject and that the distinction at hand further that interest. That is "black letter" law.

Pray tell, how does the exclusion of same-sex couples (that is, ONLY the INCLUSION of opposite-sex couples) rationally further NY's interest in the welfare of the children of opposite-sex parents? This Court never tells us that, having looked at the matter upside down.

In other words, how are children of opposite-sex parents protected one bit by a refusal by NY to protect the children of same-sex parents? The Court tells us how opposite-sex marriage protects the children of opposite-sex parents but not how EXCLUDING state protection from children of same-sex couples furthers the state's interest in protecting the children of OPPOSITE-SEX parents. I believe the answer to that question is what is required of "black letter law."
7.6.2006 3:25pm
jrose:
The failure here is to understand the menaing of the word "marriage," which means a union of opposite sex people
This axiomatic claim is a lame circular argument (marriage is between opposite-sex couples because marriage is between opposite-sex couples).
People's personal eccentricities are not permitted to trump any collective judgment on the matter.
Being gay is not a "personal eccentricity" like going to flight school. Sexuality is part of who we are. Current marriage law does not allow gay people to marry anyone for whom marriage makes sense.
7.6.2006 3:30pm
Nom (mail):
Jamesaust, you are confusing the rational basis test with strict scrutiny. Rational basis essentially upholds anything. It was developed by liberals during the New Deal to uphold economic legislation. Strict scrutiny strikes down almost anything. You need to check out a hornbook on constitutional law, or any SCOTUS case discussing rational basis or strict scrutiny.
7.6.2006 3:31pm
jrose:
Rational basis essentially upholds anything. Strict scrutiny strikes down almost anything.
How do you explain Romer and Lawrence?
7.6.2006 3:34pm
Nom (mail):
jrose
How is it circular? Marriage has always, for thousands of years, in every society (even in societies that were isolated and unaware of other societies, and even in societies that tolerated homosexuality such as Greece) been between those of the opposite sex. It is the very definition of "marriage." If I say marriage is a hot dog, and you say "No, its a union between two people" I guess I could say that's circular. But that wouldn't make any sense.
7.6.2006 3:34pm
jrose:
Pray tell, how does the exclusion of same-sex couples (that is, ONLY the INCLUSION of opposite-sex couples) rationally further NY's interest in the welfare of the children of opposite-sex parents?
They could have argued - as Stanley Kurtz does for Europe - same-sex marriage will increase the number of opposite-sex couples who choose to have kids out of wedlock. It's a BS argument, but one with likely enough supporting (BS) data to meet the ever-so-low rational basis standard (which might not require any supporting data).
7.6.2006 3:38pm
Nom (mail):
jrose:
Romer and Lawrence were anomalies - they ruled that the intent was bad on the part of the legislators - "animus." It had nothing to do with rationality. That's clearly not the case with marriage laws adopted long ago- they were not drafted to oppress homosexuals. It is essentially a fact-based inquiry, and the NY Court today explained this.

But it is correct that rational basis is the most lenient sandard of review and strict scrutiny the most demanding to satisfy. Quite frankly, I never expected to have to explain this sort of thing on a site like this.
7.6.2006 3:40pm
Classmate-Wearing-Yarmulka (www):
jrose: Romer and Lawrence are the exceptions that prove the rule. That still doesn't explain your confusion of strict scrutiny and rational basis.
7.6.2006 3:41pm
JPS3L (mail):
Jamesaust:

Rational basis does not require the State to demonstrate a compelling interest; you must be thinking of strict scrutiny analysis. For rational basis, the State only needs to demonstrate a legitimate state interest that is not arbitrary or capricious. Charlton v. Kimata, 815 P.2d 946 (1991) (rational basis review is less intensive than strict scrutiny or an intermediate review that involves a determination of whether a statutory or regulatory classification of persons has a rational basis and does not deny equal protection under the Constitution -- if the classification neither affects a fundamental right, nor creates a suspect classification, nor is based on gender, then the rational basis test is applied). Thus, NY's marriage laws, which were promulgated well before the notion of same-sex unions was even contemplated, does not arbitrarily or capriciously target gay citizens, it applies equally to adults that wish to engage in polygamy or incest. Moreover, the Supreme Court has not held that gays are a suspect class or that homosexual conduct is a fundamental right. See Romer v. Evans and Lawrence v. Texas. Accordingly, NY only has to demonstrate that it has a legitimate interest in not wanting to re-write the definition of marriage to accommodate one class of citizens. Indeed, the fact that the state could not amend its marriage laws to provide for gay marriage without necessarily discriminating against Mormons or incestuous couples (or, conversely, having to open up marriage to these groups as well) seems to me to provide a legitimate reason not to amend the laws at all. Remember too, that rational basis is an extremely low bar that is almost always met by the State.
7.6.2006 3:43pm
jrose:
How is it circular?
You are kidding, right? It is trivial that a definitional claim is circular. You need to provide a reason for the definition.
7.6.2006 3:48pm
Jamesaust (mail):
Nom -
I don't believe I'm confusing anything. Nonetheless, I and Justice Kennedy will bone up on our hornbooks over the summer.

Nonetheless, you are incorrect. A "rational basis" test requires that the statute in question further the government's interest. Denying state protection to some children does not further any interest in other children.
7.6.2006 3:49pm
Nom (mail):
Jamesaust-
I hope you do bone up on that conlaw hornbook, because if you don't know the difference between the rational basis test (and tha fact that its application almost certainly sounds the death knell for any claim against the government) and strict scrutiny, I'm pretty sure Justice Kennedy will be dumping a lot of tax and bankruptcy opinions on you.
7.6.2006 3:58pm
JPS3L (mail):
Jamesaust:

Changing the definition of marriage to include same-sex couples is not a question of whether the state has a legitimate interest in protecting children. If your argument is that children need two married parents to be fully protected, then NY should also amend its adoption laws to proscribe single parent adoption. Regardless, the legal question is not whether a male and female parent provides a better home than parents of the same sex or whether two parents are better than one. The only question is whether NY has a legitimate interest in not re-defining marriage. I would suggest that it does. Indeed, the fact that the state could not amend its marriage laws to provide for gay marriage without necessarily discriminating against Mormons or incestuous couples (or, conversely, having to open up marriage to these groups as well) seems to me to provide a legitimate reason not to amend the laws at all. Remember too, that rational basis is an extremely low bar that is almost always met by the State.
7.6.2006 4:00pm
jrose:
IMO, NY's marriage law survives an animus challenge under rational basis - but just barely. Nonetheless, there is the strong smell of a pre-text in how the law is applied masking animus.
7.6.2006 4:01pm
Jamesaust (mail):
"They could have argued - as Stanley Kurtz does for Europe - same-sex marriage will increase the number of opposite-sex couples who choose to have kids out of wedlock."

Well, so would various schemes penalizing the children born out of wedlock - schemes already struck down by the courts. Still, I'd love to see the NY court's reasoning in such a case. And, of course, that isn't the argument this Court makes. Let's let them do their own lifting.

Absurd is not a synonym for rational. The idea, because some children of same-sex parents are so because of cautious rational consideration (except of course for those homosexuals who have children "naturally," which this Court doesn't seem to consider probable) and some children of opposite-sex parents are so because of incautious irrational consideration (no matter how great a majority are purposely conceived), that this substitutes for a rational possibility is indeed absurd.
7.6.2006 4:03pm
Thorley Winston (mail) (www):
The only marriage that makes any sense at all for a gay person is a same-sex marriage - this being true simply because of who they are (gay).


Except that it doesn't "make[] any sense" because marriage is between a man and a woman. If someone decides to fornicate with adults of the same sex, that's their business but they don't have the right to expect the rest of us to grant a privileged status to their relationships nor to confer any benefits on them because of it.
7.6.2006 4:03pm
logicnazi (mail) (www):
Syght, Elas
As one of you points out the supreme court ruled in Turner v. Safley that marriage is a fundamental right. Moreover, the court clearly held that even marriage which does not produce children is a fundamental right. The language O'Connor used in her majority opinion is this,


The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements [482 U.S. 78, 96] are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.


Note that the right to marry was not restricted merely to inmates who will be young enough to reproduce when freed and that the receipt of government benefits and community recognition was explicitly recognized as part of the substance of this fundamental right.

Now the judge in this case tries to squirm around this precedent by claiming the right to homosexual marriage is not deeply rooted and hence is not protected. However, this sort of argument flies directly in the face of Turner v. Safley. Obviously inmate marriages are not deeply rooted in American tradition so if this reasoning was valid the holding in Turner v. Safley would be incorrect.

The holdings of Loving v. Virginia and Zablocki v. Redhail also argue against this interpretation. In addition to the equal protection violation in Loving v. Virginia Justice Warren also held that denying the fundamental right of marriage to interracial couples is a due process violation. In his words,


These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma. See also Maynard v. Hill. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.


Though surely Virginia could have (and probably did) correctly pointed out that interracial marriage was not deeply rooted in American tradition Justice Warren still held that it deserved constitutional protection. In other words even if the type of marriage you practice has generally been condemned it is still a fundamental right deserving of court protection.

Similarly in Zablocki v. Redhail the court ruled that a Wisconsin law preventing deadbeat dads from marrying infringed on the fundamental right to marry. Yet once again you could easily point out that there is no deeply rooted tradition of allowing deadbeat dads to marry. Heck, if anything there is a long cultural disapproval of men who had fathered children with someone from leaving them and marrying again.

What a judge should do if there is a dispute about whether a practice counts as an instance of some protected right is look to the basis of the right in question. In this case that means looking at the factors that make marriage a fundamental right and seeing if they apply in the case of gay marriage. Given O'Connor's opinion this means looking at whether gay marriage provides emotional and spiritual support, recognizes and provides some legitimacy of the relationship in their community, gives government benefits. We know from that opinion that even the possibility of childrearing is not necessary to make this a fundamental right.

Basically this judge cherry picked the sorts of things he wanted to protect as marriage by cleverly choosing how to describe gay marriage. If a justice had felt strongly about Wisconsin's deadbeat dad's law or Virginia's interracial marriage law they could have pulled exactly the same trick and it would have been just as incorrect there.

Still, I can't be too hard on these state judges. They are in somewhat of a bind. The supreme court has created blatantly incompatible rulings (Turner v. Safley) yet also ruled that the federal constitution doesn't protect the right to gay marriage without overturning these rulings. What then is a state court to do when their state constitution doesn't seem to go much beyond what the federal constitution? Especially when public ignorance of prior precedent will make sure their decision is seen as hard core judicial activism.

I really don't understand why no one is informing people about Turner v. Safley and similar precedents since knowing about these totally changes how someone (at least me) views the court deciscions about gay marriage.
7.6.2006 4:13pm
Houston Lawyer:
The majority said, with regard to the petitioner's claims that marriage was a fundamental right:

"You keep using that word. I do not think it means what you think it means."
7.6.2006 4:14pm
JPS3L (mail):
Translation please:

The idea, because some children of same-sex parents are so because of cautious rational consideration (except of course for those homosexuals who have children "naturally," which this Court doesn't seem to consider probable) and some children of opposite-sex parents are so because of incautious irrational consideration (no matter how great a majority are purposely conceived), that this substitutes for a rational possibility is indeed absurd.
7.6.2006 4:15pm
JPS3L (mail):
All of the marriage cases are predicated on the definition of marriage itself, which is between one man and one woman. There is no such thing as gay marriage (except in Mass.). What same-sex couples are asking for is to change the definition of marriage to include gay couples, but that is not the same thing as trying to suggest that there is a fundamental right for two men to marry or for one man and five woman to marry. The court has only said that the liberty clauses protect marriage between a man and a woman, which is why there is no inconsistency in stating that marriage (i.e. one man and one woman) is protected, whereas gay unions (not a marriage per se) are not protected.
7.6.2006 4:26pm
Steve:
Yes, Steve, your response to my post certainly is a powerful rejoinder. What of the judicial amending in Lawrence and Griswold? Were those huge problems of such a nature that the Constitution should be changed by SCOTUS?

Yes, yes, you got me. Clearly it's "obvious" to everyone that Lawrence and Griswold were judicial amendments to the Constitution and thus I have no rejoinder. It couldn't be that I would simply disagree with your claim that a decision "changed the Constitution" just because you disagree with it.
7.6.2006 4:26pm
Nom (mail):
Steve:

Lawrence overruled Bowers v, Hardwick (1986). Before Lawrence, the Constituion permitted anti-sodomy laws. After Lawrence, it forbade them. How did that not change the Constitution?? I presume if the Court overruled Miranda, you'd consider it a change in the Constitution, no?
7.6.2006 4:30pm
Jamesaust (mail):
JPS3L -

I believe you are close but not quite there. As you quote, the issue is the classification in the statute, not the statute itself. Virtually any statute will benefit some class and the state will virtually always have an interest in benefit to its citizens. The question here is whether the classification itself is rational for some plausible reason. The Court cites to NY's interest in children - specically, children acquired in an irresponsible manner and finds this likely to occur in opposite-sex households but unlikely to occur in same-sex households. Maybe I've missed it here, but I don't notice anyone defending that argument as rational (let alone common, plausible, or likely).

"Thus, NY's marriage laws, which were promulgated well before the notion of same-sex unions was even contemplated, does not arbitrarily or capriciously target gay citizens...."

(This is like saying scientology was dreamed up after the First Amendment was written and so banning scientology - or any other "new" religion - is not arbitrary. After all, all new religions are treated identically.)

Not quite. Here's an example - again, using this Court's own reasoning. There are two 4 year olds in NY. One, Joe Adams, the other Joe Brown. Each are identical in every respect (indeed, lets just say they're twins), except one Joe has two mommies and one Joe has a mommy and a daddy. One of the ways the Joe's are identical is that they both need medical attention, which practically requires insurance. As a consquence of NY's marriage laws, one Joe can claim a parent's insurance but the other Joe cannot.

Is the distinction that the 'can'-Joe (a) has opposite-sex parents who (b) could have (but in fact did not) irresponsibly conceive him a rational basis for classifying the relationship of his parents in a different manner from the 'cannot'-Joe that further's NY's interests? If so, what is the NY interest? In other words, how does depriving one Joe of state protection further an interest in providing the other Joe protection? Is there a shortage of protection that NY needs to ration?
7.6.2006 4:34pm
Wombat:
Elais (&others):
(Note: I am not a lawyer.)
Yes, there is a right to marry. However, the states have historically limited your ability to enter into that covenant only when some (usually all) of the following are true:
A) You are of "legal age".
B) You are not already married.
C) You are marrying another person.
D) That person if of the opposite sex.
E) That person is of "legal age".
F) That person is not already married.
G) That person is not directly related to you by a certain degree (NOTE THAT SINCE THIS RULE APPLIES TO ALL MARRIAGES, THEY HISTORICALLY ASSUMED &IMPLIED THE MARRIAGE WAS HETEROSEXUAL! And, for that matter, involved individuals capable of procreation now or in the future.)
H) Various others, varying by jurisdiction.

So your theoretical homosexual has every right to marry... except that his intended partner violates rule D.

So, since few of these limitations are actually written into law (and none appear in the constitutions in any case), the question then becomes, is there a clear constitutional right that sexuality should not matter (such that D is invalid)?

In my opinion, there is not, and thus the question is not a constitutional matter, and thus should be left up to the legislature. And before you get into judging my sexual politics:

I think the gay marriage = polygamy = post-menopausal marriage.
I think the DOMA is a bad idea.
I think a "jurisdictional stripping" amendment is a fantastically good idea (for the reasoning above), while simultaneously lamenting that post New-Deal jurisprudence even makes the concept necessary.
I am mildly for Gay Marriage, if the laws are also revamped to allow polygamy, remove parental consent age modifiers (such a contract should only be allowed to adults, period), and I don't know how to handle incestuous marriage. (Clearly gay incestuous marriage should be legal if Gay Marriage in general is legal - so why should heterosexual incestuous marriage not be allowed (for the same fairness reasons the pro-gay marriage community uses)? Is the answer just to allow incestuous heterosexual marriages and allow the child to sue the parents for negligence if any genetic defects result? I am not trolling here, I am honestly and logically attempting to cover all the bases of marriage, not merely the one rule the pro gay-marriage crowd doesn't agree with.)

As for Dale's post, it is again another blatantly dishonest post from him. The decision was really a 4-3 decision, meaning that if only one of those four people had decided to read into the NY constitution some additional gay right that is textually not in it, then NY would have legal gay marriage. And while I am not opposed to gay marriage, I do not wish to have another Roe that is legalized by pulling some penumbra rabbit out of a constitutional hat.
7.6.2006 4:37pm
Nom (mail):
Jamesaust:

here's another example:
There are two 4 year olds in NY. One, Joe Adams, the other Joe Brown. Each are identical in every respect (indeed, lets just say they're twins), except one Joe has [one mommy and her female best friend] and one Joe has a mommy and a daddy. One of the ways the Joe's are identical is that they both need medical attention, which practically requires insurance. As a consquence of NY's marriage laws, one Joe can claim a parent's insurance but the other Joe cannot.

Poor Joe with a mommy and her roommate friend can't claim the insurance of mommy's roommate friend! Note that any conceivable relationship would satisfy your hypothetical, proving nothing.

Also, it is not illegal for insurance to cover same-sex relationships. That is purely a creature of contract.
7.6.2006 4:41pm
logicnazi (mail) (www):
Two more quick points.

First Turner v. Safley is another instance of rational basis striking down a law and I'm sure there are a whole bunch of others. Moreover, the prison's arguments in this case are at least as plausible as the arguments about the harm of gay marriage. I mean hell just point out that this might encourage prisoners to have children if they are released and that these children are likely to be more disposed to crime than other kids.

--

Secondly this definition of marriage buisness is just stupid . Marriage, like virtually all words, is not controlled by some absolute definition. Rather we have some prototype of what a marriage is and judge whether something is a marriage based on how close to that prototype it comes. Just as we usually conceive of a marriage as intended to be monogomous but recognize an open marriage as marriage we can similarly think of a prototypical marriage as being between members of the opposite sex but recognize gay marriage as marriage because it is otherwise similar to our prototypical notion. Much as I dislike Quine this is one thing he got right.

However, there is no reason to argue about whether or not gay marriage 'counts' as marriage since we have conclusive evidence. People in fact talk about gay marriage. Even the opponents of gay marriage unconsciously recognize that a legal ceremony binding two gay people together would in fact be validly described as marriage.

Note that resorting to the legislature's definition of marriage would be circular. We have to use the common language notion to evaulate whether the laws the legislature has passed respect the fundamental right to marriage.

If this notion still bothers you just pretend the legislature used the word blugflub in the statutes everywhere it talks about the legal notion of marriage.
7.6.2006 4:46pm
Steve:
Lawrence overruled Bowers v, Hardwick (1986). Before Lawrence, the Constituion permitted anti-sodomy laws. After Lawrence, it forbade them. How did that not change the Constitution?? I presume if the Court overruled Miranda, you'd consider it a change in the Constitution, no?

No, of course not. It would be a change in how the courts interpret the Constitution, obviously. But that happens all the time.
7.6.2006 4:49pm
Nom (mail):
Logicnazi:

I guess the fact that some speak of "pet marriage" means it too is in fact a marriage.

http://www.marryyourpet.com/

"Gay" is used to modify "marriage" when referring to same-sex relationships because the term "marriage" alone would not rationally describe it. We also refer to polygamous or bigamous or incestuous marriages but that does not require us to recognize them as valid marriages.
7.6.2006 4:52pm
Nom (mail):
Steve,
well I guess all those dire warnings of conservative judical nominees "destroying" the Constitution or "gutting" the establishment clause are not quite right because its "just a change in interpretation" they would be performing, not really changing the Constitution as currently applied. This is semantics. If tomorrow the Court held that Presidents can run for three terms it would be changing the Constitution just as an amendment would.
7.6.2006 4:56pm
Steve:
If tomorrow the Court held that Presidents can run for three terms it would be changing the Constitution just as an amendment would.

I'm afraid I'm not persuaded by your counterfactual, which has nothing in common with the Lawrence or Griswold decisions.

Whether a court decision "changes" or merely "applies" the Constitution is a function of whether you agree with the decision, and it seems foolish to pretend otherwise. But yes, I happen to agree that when someone says a conservative judge will "destroy" the Constitution, it's a figure of speech. I didn't realize that was in dispute.
7.6.2006 5:10pm
Bpbatista (mail):
All of this discussion proves that the Court made the right decision. Whether or not same sex marriage is good, bad or indifferent; whether or not children are better off in opposite sex partner homes; whether or not gay marriage is deeply rooted in our customs, etc. etc., are all contentious issues that should be debated adn resolved by elected and accountable representatives in the state legislature -- not by the diktat of the court.
7.6.2006 5:11pm
Nom (mail):
Steve,

if governmental actors have had to change their conduct after a Supreme COurt decision on the constitutionality of their actions, the Constitution (meaning the basic law that governs the scope of public law) has changed. Section 1983 enables damages suits against state actors for violation of the "Constitution." If it hasn't changed, then governmental actors would be free to do things the same way without fear of a section 1983 suit for violating the Constitution. Before Lawrence: okay to criminalize sodomy. After Lawrence: not ok, and you get sued under 1983. Same with my hypo: today: Presidents can serve two terms. After some whacky SCOTUS ruling, they may run for another term.

Even libs like Bruce Ackerman have recognized that judges are amending the Constitution through interpretation - he considers this "higher lawmaking" of "constitutional moments" that permit amendment outside Article V.

If the conduct of public actors is restricted differently after a ruling, the Constitution has changed just the same as if a formal amendment had occurred.
7.6.2006 5:17pm
anonyomousss (mail):
how does the existence of discussion prove the decision was correct? a ruling against the plaintiffs in brown v. board would have generated lots of discussion too.
7.6.2006 5:17pm
Phutatorius (www):
I think a legislature should decide whether two registered Republicans or Democrats should be allowed to marry. I personally feel that a concentration of political ideologies within a family has a deleterious effect on a child's growth into citizenhood. This is my moral judgment, and it should be written into law.

I also think the question of marriages between brown and blue-eyed people should be submitted to the democratic process -- the state has a legitimate interest in preserving the recessive blue-eyed gene.

Struggling actors should be restricted from marrying one another: I want to see a steady income from at least one parent before children are introduced into that situation. And Yankees and Mets fans shouldn't be allowed to intermarry, either. It could lead to domestic disturbances during the weeks of interleague play -- I can produce legislative findings on this point, if asked -- and honestly, is it fair to allow a child to grow up in that contentious environment?
7.6.2006 5:32pm
Colin (mail):
Phutatorius - quite right. The word "marriage" means "a union between two people of the same league orientation," and cannot be used to refer to a union between a Yankees fan and a Mets fan. The very idea is linguistically impossible. I mean, find me one literary source that uses the word "marriage" in such a context! "Inter-league marriage," as a phrase, doesn't count, of course, because that's exactly the same thing, logically, morally, and grammatically speaking, as a marriage between housepets. Just ridiculous.
7.6.2006 6:04pm
JPS3L (mail):
Jamesaust:

I should clarify that I have not yet read the NY Court's decision of today. My comments have been more focused on the general principals implicated by the question of gay marriage than by the specifics of today's decision. That said, I would note that in your example of Joe A and Joe B the simple solution for the lesbian couple would to both legally adopt the child. To the extent that state law forecloses that opportunity, then petition the legislature (who is accountable to the citizens for their actions in a way that most state supreme court judges are not) for redress.

Notwithstanding the Court's reasoning, as you have explained it to me, the reality is that NY's marriage law can still be justified. Once we agree that the State was not seeking to discriminate against homosexuals by defining marriage in the only terms then known to civilized societies (i.e. no animus), it then falls upon the state to justify at the time of adoption its classification in a rational way. NY believed that marriages were protected by law for the purpose of encouraging procreation amongst adults and to ensure a conducive environment for child rearing. Indeed, the Supreme Court justified its denial of constitutional protections for polygamy, in part, upon the grounds that it was rational for a state to sanction traditional marriage at the expense of other types of unions because of the perceived stability that traditional family offers to children. Thus, at the time NY's law was passed, it was perfectly justified by a logic that had been used by the Supreme Court itself.

The question presented by challenges to marriage laws today is really whether the State has a duty to amend its laws to meet perceived inequalities that are borne out of cultural evolution. As I have previously stated, the fact that the state could not amend its marriage laws to provide for gay marriage without necessarily discriminating against Mormons or incestuous couples (or, conversely, having to open up marriage to these groups as well) seems to me to provide a legitimate reason not to amend the laws at all. Indeed, even if the law were amended to provide for same-sex marriage, then the children of other discouraged intimate relationships would still fail to enjoy the type of state protection that you were concerned with. Polygamy, by way of example, still is practiced in areas of the country. Because he was born of a union not recognized by the state, little Joey Copa would not enjoy his father's health insurance were his mother to become unemployed. And all of this is before we begin discussing children who are simply born out of wedlock because his/her parents don't believe in the formalism of marriage. My view, therefore, is that unless a state were to allow the marriage of any conceivable make-up (same-sex, polygamy, incest, etc.) that some class of people would inherently be discriminated against, and that this reality itself provides a rational basis not to change the law at all.

At the end of the day, this is a political question because it is not justiciable. When a court cannot articulate a rule of sufficient clarity and general applicability, then it should hold the case to be non- justiciable and leave it to the politicians. Because courts cannot develop a rule that discovers a right to homosexual conduct or marriage in the Constitution without either (i) applying such a broad rule that it would include conduct that was not intended by the court or (ii) drawing a rule that was so narrow that it necessarily discriminated against other forms of conduct that the court itself cannot meaningfully distinguish, they should not be involved in the adjudication of such cases at all.

As NY's Court observed today, the proper place for this debate is in the legislature. We have encountered Constitutional norms that a majority of society felt needed to be changed before. This was why the 13th, 14th, and 15th Amendments were adopted to proscribe slavery, and this is why 19th Amendment was adopted to give women the right to vote. But the idea that a majority does not agree with your position justifies asking a court to discover new constitutional imperatives new previously contemplated is, IMHO, misguided and circumscribes the democratic process.
7.6.2006 6:07pm
Elais:
JPS3L,

Is there a fundamental right for you (presumably a male) to have sex with a woman?

Why are you so tied down to marriage meaning 'between a man and a woman'? Why can't marriage being between two people? Why this focus on 'man, woman'?

I simply see this as gays and lesbians wanting the same marriage rights as me, and I'm really wondering why people have such a problem with that. They are not asking for special rights, they are asking for the same rights. Marriage can easily be redefined to include both same-sex and opposite sex marriages.

And, as usual, people always bring up pologamy. Like THAT means anything in this arguement.

Nom,

Man has lived for presumably millions of years as a species without 'marriage' ever existing. Surely millions of years of evolution trumps a few hundreds of years of so called 'marriage'. why are you equating 'gay marriage' with beastiality and incest?

Do you honestly think that if gay marriage was allowed, all of a sudden young farm kids will ask to marry the family cow?
7.6.2006 6:15pm
NYU 2L:
logicnazi - Loving v. Virginia was all about procreation, as the concurrence correctly noted. That's why the key holding was based on Skinner (holding that forced sterilization was unconstitutional.) Zablocki says the same thing, that the important right is to procreate in the only relationship the state has deemed legally permissible. Turner only applied to inmates who would eventually get out of prison and so expected to consummate the relationship, and was distinguished from Butler which held that inmates under life sentence did not have a right to marry.

There are 2 claims here. One is a claim that the law violates the fundamental right to marriage, and the other is sexual orientation based discrimination. Because gays cannot conceive a child through their relationship, the situation isn't covered under the Loving v. Virginia right to marriage. Because there are rational, no matter how persuasive, reasons to restrict marriage to heterosexual couples, the equal protection claim falls. Most of the other stuff mentioned so far has been irrelevant fluff.

The only real issue for the court to decide was whether the right to marry encompasses homosexual couples, and it appears that under the Supreme Court's standard it doesn't.
7.6.2006 6:21pm
NYU 2L:
Phutatorius - Irrelevant analogies, because they do violate the right to marriage. Last time I checked, a couple of rival baseball fans of the opposite sex could produce a child, as can Republicans &Democrats, and struggling actors.
7.6.2006 6:24pm
Steve:
if governmental actors have had to change their conduct after a Supreme COurt decision on the constitutionality of their actions, the Constitution (meaning the basic law that governs the scope of public law) has changed.

I guess that's where we disagree. When I refer to the Constitution, I mean the written document with 7 articles and 27 amendments, not some fuzzy concept like "the basic law that governs the scope of public law."

There are a lot of debatable points in Constitutional interpretation, notwithstanding the hordes of Internet commentors who claim to have it all figured out. Indeed, the document was intentionally drafted to be vague in numerous respects. A hypothetical decision that alters the plain language of the document - like saying a President can serve three terms when the document says two - is quite different as a qualitative matter than a decision which attempts to interpret the Constitution. Whether you agree or disagree with the decision, it's still not an amendment.

Even libs like Bruce Ackerman have recognized that judges are amending the Constitution through interpretation - he considers this "higher lawmaking" of "constitutional moments" that permit amendment outside Article V.

I don't think Ackerman contends that cases like Griswold or Lawrence represented "constitutional moments." It's a free country, and you're perfectly free to disagree with any Supreme Court decision you don't like, but don't expect everyone to agree that the decisions you don't like are "judicial amendments."
7.6.2006 6:42pm
jrose:
NYU 2L,

Under today's ruling as you describe it, wouldn't the New York legislature be able to pass a law which forbids post-menopausal women from marrying? Do you really think such a law would be found constitutional?
7.6.2006 6:46pm
KeithK (mail):

Why are you so tied down to marriage meaning 'between a man and a woman'? Why can't marriage being between two people? Why this focus on 'man, woman'?

Marriage has always been a union between a man and a woman. Could society decide to redefine the term to include a union of two men or two women? Certainly. But the burden is on those who want to change the (ancient) definition of marriage to convince society to change it. That's what the political process is for.
7.6.2006 6:48pm
KeithK (mail):

Under today's ruling as you describe it, wouldn't the New York legislature be able to pass a law which forbids post-menopausal women from marrying? Do you really think such a law would be found constitutional?

There's a difference between changing a law to remove privileges from a certain class (post-menopausal women) and sustaining a long standing law (NYS marriage law) that was enacted without animus toward the class that is impacted. I suspect your example would have to bear a higher burden of proof.

Assuming arguendo that today's decision does not bar a law prohibiting post-menopausal women from marrying, I suspect a court would strike it down on privacy grounds. Determining whether a woman was a member of the prohibted class would require an invasion of privacy.
7.6.2006 6:57pm
jrose:
KeithK,

Why would a law prohibiting a post-menopausal woman from marrying trigger higher than rational basis review than laws which prohibit same-sex couples from marrying?

Concerning the privacy argument - can a state require a blood test for marriage?
7.6.2006 7:04pm
BobN (mail):
No animus in the marriage code? I guess one book of NY law stands completely apart and independent of the rest of the civil code.

What an embarassing decision.
7.6.2006 7:07pm
Medis:
I don't think the definitional argument has much legal force per se, but I do think it is interesting to note that it is a false dichotomy to say that either the state defines marriage, or each individual defines marriage for him- or herself. Of course, there are a large number of other kinds of institutions in our society, and they can speak on marriage as well. For example, some churches are now performing gay marriages. Some families recognize gay marriages. Some employers recognize gay marriages. And so on.

In a similar sense, I am always a bit curious about what people mean when they say "society" gets to define marriage. Society, of course, is not monolithic. So how much of society has to agree before gay marriages are marriages?

And as a substantive issue (not just as an issue of semantics), these considerations might have legal implications. In short, if enough churches, families, employers, and so on recognize gay marriages, it may become harder and harder for states to claim that they are speaking for "society" as a whole.
7.6.2006 7:24pm
Steve:
Is there a serious argument that the legislators who enacted New York's marriage code were intentionally trying to exclude gay couples from its scope - or that they even thought about the issue? I'm genuinely curious.

If you are pro-gay marriage, I can understand why you'd argue that the current marriage laws are discriminatory in effect, but it's hard to see the argument that ancient laws were motivated by actual animus.
7.6.2006 7:27pm
JPS3L (mail):
Elias,

No, I do not believe that I have a Constitutional right to have sex with a woman. Were that true, then prostitution would be fully legal. I have a fundemental right to marry a woman and I have a fundemental right to procreate or to use contraception with my wife, but there is not a fundemental right to have sex.

In terms of the definition of marriage, I believe it is one man and one woman, provided that they are not related. I do not believe that any definition of marriage contemplated same-sex unions, pologamy, or incest. And, because that has always been the definiton, I believe that only a state legislature may re-define marriage. But it is also important to note that most homosexual couples don't even want marriage rights in the traditional sense. According to the following surveys, while homosexual men want the legal benefits of marriage, they do not vlaue monogomy as an important tenant of marriage:

"Consider sociologist Gretchen Stiers's 1998 study "From this Day Forward" (Stiers favors gay marriage, and calls herself a lesbian "queer theorist"). "From this Day Forward" reports that while exceedingly few of even the most committed gay and lesbian couples surveyed believe that marriage will strengthen and stabilize their personal relationships, nearly half of the surveyed couples who actually disdain traditional marriage (and even gay commitment ceremonies) will nonetheless get married. Why? For the financial and legal benefits of marriage. And Stiers's study suggests that many radical gays and lesbians who yearn to see marriage abolished (and multiple sexual unions legitimized) intend to marry, not only as a way of securing benefits but as part of a self-conscious attempt to subvert the institution of marriage. Stiers's study suggests that the "subversive" intentions of the radical legal theorists are shared by a significant portion of the gay community itself."

"Stiers's study was focused on the most committed gay couples. Yet even in a sample with a disproportionate number of male couples who had gone through a commitment ceremony (and Stiers had to go out of her research protocol just to find enough male couples to balance the committed lesbian couples) nearly 20 percent of the men questioned did not practice monogamy. In a representative sample of gay male couples, that number would be vastly higher. More significantly, a mere 10 percent of even this skewed sample of gay men mentioned monogamy as an important aspect of commitment (meaning that even many of those men who had undergone "union ceremonies" failed to identify fidelity with commitment). And these, the very most committed gay male couples, are the ones who will be trailblazing marital norms for their peers, and exemplifying gay marriage for the nation. So concerns about the effects of gay marriage on the social ideal of marital monogamy seem justified."

"A recent survey of gay couples in civil unions by University of Vermont psychologists Esther Rothblum and Sondra Solomon confirms what Stiers's study suggests--that married gay male couples will be far less likely than married heterosexual couples to identify marriage with monogamy. Rothblum and Solomon contacted all 2,300 couples who entered civil unions in Vermont between June 1, 2000, and June 30, 2001. More than 300 civil union couples residing in and out of the state responded. Rothblum and Solomon then compared the gay couples in civil unions with heterosexual couples and gay couples outside of civil unions. Among married heterosexual men, 79 percent felt that marriage demanded monogamy, 50 percent of men in gay civil unions insisted on monogamy, while only 34 percent of gay men outside of civil unions affirmed monogamy."

Beyond Gay Marriage
From the August 4 / August 11, 2003 issue: The road to polyamory.
by Stanley Kurtz
08/04/2003, Volume 008, Issue 45

Thus, I do not see the current legal challenges as merely a question of providing same-sex couples with the same rights as heterosexual couples, but as a request to change both the definition of marriage itself and what the tenants of marriage are. For all of the reasons I have already articulated on this thread, I think there is a rational basis for leaving time-honored definitions of marriage as they are.
7.6.2006 7:36pm
Medis:
JPS3L,

You say: "I believe that only a state legislature may re-define marriage."

Well, what about churches?
7.6.2006 7:42pm
JPS3L (mail):
Medis:

The state and a church have different roles defining marriage. The state (and not a church) is uniquely empowered to define marriage in such a way that confers the legal benefits of marriage that are usually desired. Moreover, a marriage can be performed by a judge (or, in some states, even a notary public) without the input of a church at all. By contrast, a church can opine as to the theological underpinnings of marriage and may promulgate whatever regulations its priests must follow when marrying couples, though has no authority to change the legal requirements for a marriage license or with respect to the benefits of marriage.
7.6.2006 7:58pm
Ken Arromdee:
There are two 4 year olds in NY... As a consquence of NY's marriage laws, one Joe can claim a parent's insurance but the other Joe cannot.


Consider that this reasoning could equally well apply to incestuous marriages.
7.6.2006 8:52pm
Medis:
JPS3L,

I understand that a church cannot provide the legal benefits of marriage. But I was asking about the "definition" of marriage--doesn't that definition, as you see it, long predate what any particular government has said on the subject? So, isn't the definition of marriage in that broader sense independent from what any particular government says marriage is?

In short, if a particular government did not create the definition of marriage (as opposed to providing particular legal benefits to marriage), why should only a particular government have the authority to "re-define marriage"?

Indeed, in that sense I think that our society is already moving toward a different definition of marriage. And it strikes me that whether and when any particular government follows suit with any particular legal benefits is a separate question.
7.6.2006 9:44pm
Jamesaust (mail):
JPS3L -
I thank you for your comments and wish I had time to explain more fully why I agree with the result of the NY Court, even if not the reasoning to get there. The claims of the plaintiffs are generally legitimate; they should just stop trying to sue their way into NY's heart and start making their case in the Legislature.

"Because courts cannot develop a rule that discovers a right to homosexual conduct or marriage in the Constitution ..."

I believe they CAN so discover if the "right" is framed properly - the right of two consenting adults not otherwise already married. There is no more a question of "right to homosexual marriage" than there was in Bowers a "right to homosexual sodomy." The question is simply framed to narrowly, and thereby predicts its own answer.

"...without either (i) applying such a broad rule that it would include conduct that was not intended by the court or (ii) drawing a rule that was so narrow that it necessarily discriminated against other forms of conduct that the court itself cannot meaningfully distinguish...."

I believe that is precisely what the Court has done here. It has taken as the rational basis for NY's interpretation of the statute one that (i) is so broad that it includes significant quantities of persons within its scope that the rational basis does not apply to, while also (ii) drawing the rule so narrowly that it creates discriminatory consequences in the vary class - children - that it claims to have an interest in. Arguing that a policy that works against an environment condusive to childraising for some children is a rational basis for encouraging that environment for others is not so much putting the cart before the horse as it is requiring that the cart pull the horse. Again, if the purported basis for the NY law was correct then it cannot logically follow that the law can be written and applied both as broadly and as narrowly as it is. I'm unaware of many octogenarians raising children but I'm am aware of many being married under NY's marriage law.

I thank you though for the interetesting discussion.
7.6.2006 9:56pm
Phutatorius (www):
NYU2L:

As you wish: no women who have undergone hysterectomies should be allowed to marry. No vasectomized man should be allowed to marry. And as post-menopausal women cannot give birth (or even supply an ovum for fertilization), I think it's "rational" for the government to set a maximum age at which women can marry — so long as that age is higher than the median menopausal age. And finally, let's heap a little more pain on those well-known freeloaders on posterity — infertile couples. We've tolerated them for too long. If they can't serve up a kid to satisfy the state within four years of taking their vows, then they're just abusing the institution. Mandatory divorce, I declare! (after notice and an opportunity to be heard, of course . . .)

But I can't believe we're having this conversation. I think it's obvious that childRearing can't supply the rational basis for a same-sex marriage ban without leading us down the path to all sorts of absurd marital regulations. Outlandish and improbable regulations, I'll admit, but no more so than the parade of horribles that the marriage opponents are serving up with their unprincipled "What's next? Bestiality?" arguments.

So with that fraudulent "rational"-ization dispatched, we're shifting our focus now to childBearing? You're going to have to change more than one letter to convince me — but then again, I'm not one of the esteemed judges on the New York Court of Appeals.
7.6.2006 11:11pm
Phutatorius (www):
One final point:

Two Republicans can produce a child, but that child is a hideous, squealing creature, cold, cruel, and freakish — surely to be a scourge and a burden on the state in which it resides.

This I should know, because I am one of these demon children. Would the state have a legitimate interest in ensuring that I was never born?

Of this I have no doubt.
7.6.2006 11:16pm
Elais:
JPS3L,
So you claim you have a fundamental right to marry a woman. Why don't you have a fundamental right to marry a man? What is the difference?

I don't think anyone has a 'fundamental' right to procreate. If you're a man, you cannot bear children on your own. Even if you're a woman, you cannot procreate on your own either. Man or Woman, you need something from the other to procreate. There is no 'fundamental' right, because can you imagine some woman to force a man to impregnate her? Or a man suing to get a woman to bear his child?

And what about infertile couples? Sure, they may claim that they have a 'fundamental' right to procreate, but that doesn't make them suddently unfertile.

You keep trying to associate polygamy and incest with same-sex marriage. Polygamy and incestous marriages existed in history LONG before same-sex marriage became a mote in your eye. You cannot prove that allowing same-sex marriage will automatically result in polygamy being approved. Polygamy has almost always involved one man with many women. Polygamy is already closer to 'traditional' marriage anyway, women in polygamous marriages aren't married to each other, they are married to one man. So polygamists can't use the marriage between two men or two women as justfication.

Incestous marriage is between two biologically or legally related people, even so, marriages between second cousins or suchlike are already permitted. Advocates for incestous marriages can hardly use examples of two unrelated men or two unrelated women as justification that incestuous marriages be permitted.

The only reason you and others use polygamy and incest is because you consider both to be 'icky' and want to associate that 'ickiness' to gay couples. You use it as a bludgeon to get people to agree with you, it has no rational basis.

Many heterosexual couples marry for the legal benefits and not for love. You've heard of immigrants marrying American citizens so they can stay in the US haven't you? I doubt Anna Nicole-Smith married an eighty-something guy because 'they were made for each other'.

I dismiss the 1998 study you cite. There are other, more recent, studies that support same-sex marriages and gay families.
7.6.2006 11:21pm
Elais:
Corrrection to paragraph in post above..

And what about infertile couples? Sure, they may claim that they have a 'fundamental' right to procreate, but that doesn't make them suddenly fertile.
7.6.2006 11:23pm
JPS3L (mail):
Elias:

Yes, the Court has recognized a fundamental right to procreate. Skinner v. Oklahoma, 316 US 535 (1942) (holding that Oklahoma was foreclosed from castrating a felon because the right to procreate was fundamental and because the statute in question violated the equal protection clause of the 14th Amendment); see also, Washington v. Glucksberg, 521 US 702, 720 (1997) (stating, "the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia; to have children, Skinner v. Oklahoma ex rel. Williamson; to marital privacy, Griswold v. Connecticut; to use contraception, ibid."). Accordingly, I believe most people would agree that there is a fundamental right to procreate.

In terms of linking same-sex marriage to polygamy and incest, I am not doing so for purposes of building a slippery-slop argument, but to buttress my argument that (i) a legal inability to meaningfully distinguish same-sex marriage from polygamy with an objective legal standard should lead to a conclusion that the issue is not justiciable and (ii) to argue that amending state laws to include same-sex marriage while continuing to exclude polygamy would violate the guarantees of equal protection. In the context of the latter argument, I have also argued that avoiding an equal protection challenge to new state statutes that provide for same sex marriage while excluding polygamy provides a rational basis for not changing existing laws. Whether or not something is "icky" is not relevant to the legal arguments I have advanced. Indeed, I have tried to stay away from subjective characterizations altogether, both because they tend to inflame an already emotional topic and because they are not a factor in the Court's analysis.

In connection with you arguments for incest (i.e. second cousins already marry) and for polygamy (i.e. polygamy has already has a national tradition), I am not persuaded. The Supreme Court, in United States v. Reynolds, has already held that this form of non-traditional marriage is outside the scope of Constitutional protection. To the extent that you concede that "polygamy is already closer to 'traditional' marriage anyway," then it would stand to reason that same-sex marriages should not enjoy preferential treatment to a form of marriage that has at least some claim to national tradition and has the added color of First Amendment protection (i.e. it is a part of the Mormon religion).

Finally, I would point out that I cited two studies, the Stiers study of 1998 and the Rothblum/Solomon study of 2002. While I am happy to read any more current study that you find more accurate, I will need a better reason than you like the outcome of the other studies better before I discount the ones I have cited.

Jamesaust, et al.:

I too have enjoyed our discussion. This is a topic loaded with raw emotion for many, and I think it is a testament to VC that we can maintain civility while sharing so many divergent opinions.
7.7.2006 12:50am
jrose:
JPS3L,

How to legally distinguish same-sex marriage from polygamy and incest:

The fundamental right is to be able to marry someone for whom it makes sense for you to marry based on who you are (bans against same-sex marriage effectively mean gays can't marry). Same-sex marriage is thus subject to strict scrutiny while polygamy and incest would be subject to rational-basis review.

Question for you: how do you legally distinguish between a law which does not allow post-menopausal women to marry and one which does not allow same-sex couples to marry?
7.7.2006 9:10am
Elais:
JPS3L


then it would stand to reason that same-sex marriages should not enjoy preferential treatment to a form of marriage that has at least some claim to national tradition and has the added color of First Amendment protection (i.e. it is a part of the Mormon religion).



My arguement was that polygamists don't 'need' same-sex marriage to justify asking that their own arrangements be made legal. Polygamists have no better chance to get their own marriages legalized even if same-sex marriage was allowed in all fifty states. It's absurd to claim polygamy and same-sex marriage are the same thing. Polygamy and same-sex marriage are vastly different things and it is totally incorrect to conflate them as being the same thing.

I'm not asking that same-sex marriage be given 'preferential' treatment. I'm simply asking that gays and lesbians be given equal treatment as any other straight couple. Equal Rights and Equal Marriages, is that so hard to understand JPS3L? I see no difference between a marriage between a man and a woman and marriage between two men. To me it is that that simple. A marriage is between two unrelated adults, how hard is that for you to accept JLS3L?
7.7.2006 9:50am
Ken Arromdee (mail):
How to legally distinguish same-sex marriage from polygamy and incest

Well, the first step is to choose your arguments carefully and not use ones that apply to polygamy and incest. As I pointed out above, one of the arguments is "do it for the sake of the children, who may be denied medical treatment if the marriage isn't recognized." This argument applies to incest.

A marriage is between two unrelated adults

And other people will say a marriage is between two different genders.
7.7.2006 12:58pm
JerryW (mail):
I am 60 years old and want to marry my sister who is 58 and has had a hysterectomy. Should I have that right?

I am a male over 21 years of age and have found two women over the age of 21 who want to marry me and be in a polygomous marriage. Should we have that right?
7.7.2006 8:58pm