The Road to Gay Marriage After New York:

Almost a week has now passed since the New York Court of Appeals handed down its decision denying state constitutional claims to same-sex marriage. Previously, I’ve discussed my thoughts on the court’s legal analysis. Now I want to explore some effects of the decision on the cause of same-sex marriage.

First, the New York decision may be persuasive authority to other state courts. Right now, litigation is pending in 8 state court systems. We await decisions from the high courts of two states, New Jersey and Washington. New York is a large state and its courts are well regarded. At the same time, it’s a politically liberal state. The New York decision could provide cover, jurisprudentially and politically, to judges in other states who want to reject gay-marriage claims but who are concerned about the perception of legal elites that they are denying the next great civil-rights cause. If New York’s high court can do it, it can’t be blind bigotry or ignorance to reject these claims, can it? Thus, the New York decision could be influential on this issue in a way that, say, the Alabama Supreme Court would not be. The New York opinion may therefore hinder the success of gay-marriage litigants elsewhere.

I would not make too much of this, however. While courts in sister states may influence one another on relatively arcane or technical matters, or matters in which the state court system is thought to have special expertise (like the Delaware state court system’s expertise in corporate law), I doubt they’ll really take the lead from each other on a subject as high profile as gay marriage. Judges will tend to have a view of the issue going in, and I doubt that they’ll be converted by the opinion of four judges in Massachusetts in one direction or four judges in New York in the other direction. It’s remarkable how little the New York court even mentioned the Massachusetts decision or the decisions of courts in other states.

To the extent there is some room for actual persuasion on the issue, I also doubt the New York decision (or the Massachusetts one) is sufficiently well reasoned by itself to budge anyone. That’s not to say the New York (or Massachusetts) decision won’t be cited in future state court litigation. It’s only to say that the citation is likely to be adornment for a result already reached.

At most, the New York decision may have canceled out whatever small persuasive effect Goodridge might have had.

A second effect may be to soften the remedial demands made by future gay-marriage litigants. Instead of insisting on full marriage or nothing, as the New York plaintiffs did, perhaps litigants will be more likely to settle for marriage-lite. This might marginally increase their chances for success. Future state courts might see the current landscape as offering three models for resolution of gay-marriage claims: Massachusetts (full marriage), New York (nothing), and Vermont (civil unions, with directions to the state legislature to work out the details.). They might see the Vermont resolution as a middle position between the extremes of New York and Massachusetts, allowing them to give gay couples the benefits and protections of marriage without risking the political backlash that comes with the word “marriage.”

A third effect should be to reduce and to delay litigation arising from inter-state conflicts in marriage law. If the New York court had ruled for gay marriage, that by itself would have dramatically increased the potential for such conflicts in the near future. New York is the third most populous state, with a high concentration of homosexuals. Its residents, especially in the City, are highly mobile. Very quickly, its gay married residents would have moved to or traveled in other states, gotten into legal conflicts with each other or with third parties, and sought some recognition for their relationships. I think discordant state policies in this area can be dealt with under traditional legal principles. And these conflicts will occur anyway, whether they involve gay marriages or civil unions. But there is no doubt the sheer number of such issues coming from New York would have heightened tensions over the gay-marriage issue very quickly and added to calls for a national resolution via constitutional amendment.

A fourth effect of the New York decision may be to cool the fevered brows of gay-marriage litigants who imagined that Massachusetts would commence an avalanche of state-court victories for gay marriage. That has not happened, is unlikely to happen in the immediate future, and the New York decision makes it somewhat less likely to happen now than it was before. The cooling effect may mean that new gay-marriage litigation will be rarer, at least in the immediate future.

I doubt the magnitude of this cooling effect, however. There is no central clearinghouse for gay-marriage litigation, no command center where the great homosexual conspiracy dictates where and when litigation is filed. Anyone with a printer, a filing fee, and a couple of willing clients can file a gay-marriage lawsuit anywhere, anytime. While gay legal elites have sometimes prevailed on such litigants to hold off in states where their lawsuit is likely to make bad precedent for the cause, they haven’t always succeeded. People can be very dogged about what they regard as their constitutional rights and, less abstractly, the manifest unfairness and harm of having their families shut out of marriage. The gay-marriage movement is a revolution of rising expectations among the growing number of gay families and no single judicial decision is going to suppress it.

Also, I doubt New York will turn out to be much of a chastening event for gay legal elites. The main gay legal organizations pushing this effort have been strategically smart about where the litigation should be filed. But their raison d’etre is to file litigation, not to fight decades-long legislative battles. Their funding comes from litigation and from people who support litigation, so they have little internal incentive to back off. Besides, it will take only one more court victory somewhere (perhaps New Jersey) to convince gay-marriage litigants that New York was an aberration.

Related to all this, many commentators who favor gay marriage, like Andrew Sullivan and Jack Balkin, have seen a silver lining in the New York loss. They believe that losing such an important judicial decision may force the gay-marriage movement to emphasize legislative progress, which will produce gains that are more durable and less likely to infuriate opponents than are court victories. Regular VC readers will know that I have argued for an emphasis on legislative progress toward gay marriage.

Will the New York decision re-order priorities toward legislation? Certainly in New York the legislature is for now the only available arena. Some politicians in New York, including Michael Bloomberg, have said they’ll now work for gay marriage in the state legislature. It took New York 30 years to pass an employment anti-discrimination law covering sexual orientation. With Republicans fairly comfortably in control of the state senate and for now the governor’s mansion, gay marriage is not coming to New York anytime soon. Instead, New York will have to be one of the states where, if progress is to be made in the near-term at all, it will have to be made by degrees.

Outside New York, I doubt this decision by itself will have much effect immediately on the balance of power, persuasiveness, and funding between those gay-marriage advocates who emphasize litigation and those who emphasize legislation. I suggested some reasons for this above.

But New York might be the beginning of the end for the strong emphasis on litigation that has marked the early part of the gay-marriage cause. Despite the exaggerated claims of some FMA supporters, there aren’t that many state court systems likely to be hospitable to gay-marriage claims for the foreseeable future. (The federal courts are hopeless, as litigation strategists know.) While gay-marriage litigation strategists might once have hoped to build momentum for a state-by-state judicial sweep, producing a few initial victories in very friendly states that would lead to later victories in less friendly states, that hope has been diminished by the New York defeat and even more by the political backlash to gay marriage. Once existing litigation has worked its way through those few state court systems where litigants have a reasonable prospect of success, as such litigation is now doing, gay-marriage advocates will turn primarily to legislatures.

As in other social and political movements in this country, the courts will have helped along the way by highlighting the strength of the principled arguments and especially by getting some isolated experiments started. But there will be no substitute for making the case to the people and their representatives.