New York is next. State agency heads in New York have been instructed by Gov. David Paterson's legal counsel to begin recognizing same-sex marriages validly performed in other jurisdictions, like Massachusetts, Canada, and beginning June 17, California.
The memo (available here) relies on the decision of an intermediate appellate court and several lower courts in the state that have held that same-sex marriages from other jurisdictions are entitled to recognition in the state. The memo also notes that, in 2007, a state agency extended spousal benefits to married gay couples under the state's health insurance program.
Some activists opposed to gay marriage plan to ask courts to overturn the governor's action, but such challenges are given little chance of succeeding. The executive memo implements on a state-wide basis the legal principles in longstanding state law about recognizing foreign marriages and in reported judicial decisions on this very matter. In theory, the state's high court could hold that same-sex marriages are repugnant to public policy in the state, and thus refuse recognition to such marriages from out of state. But that would be a very unusual decision. As in other states, the presumption in New York is to recognize marriages validly performed out of state even if not otherwise recognized in the state itself. Gay marriages should be no exception since New York is one of five states that does not have a statute or constitutional amendment banning recognition of such marriages. While the state's high court rejected a gay-marriage claim in a 2006 decision, that does not preclude state recognition of out-of-state marriages.
It's also very unlikely the state legislature will reverse this executive action by statute. The state assembly last year passed a gay-marriage bill, though the bill went nowhere in the GOP-controlled state senate. Indeed, if Democrats capture the state senate in November, it's likely a gay-marriage bill will pass the legislature and be signed into law by Gov. Paterson.
The remaining remedy for anti-gay marriage activists is to persuade their fellow New Yorkers to vote the governor and gay-friendly legislators out of office.
What's the upshot of this development? Same-sex marriages still can't be performed in New York itself. But consider the effect of what we might call marriage tourism. There is now nothing to stop gay couples from crossing the Canadian border or flying to California to get married. Canada and California, unlike Massachusetts, have no residency requirement for marriage. These couples may then return home fully married under state law.
It's not nearly as dramatic as a sudden judicial declaration of a right to gay marriage, but the practical effect is almost the same. There will soon be thousands of married gay couples in New York. And the very existence of so many married gay couples living in the state will make it harder politically to justify making the rest go through the motions of traveling out of state to get married.
So I predict that gay divorce will be the next gay issue in New York.
Tell me, Dale, is there any law or legal process that we should not overturn in the drive to implement gay marriage without having to pass voter or legislative muster? You seem really enthused that people will use Canadian gay marriages to bludgeon the people of New York into gay marriage via an executive branch position on a conflict of laws question. It's a wonderful notion, but for the fact that it really robs the people of New York of part of their powers of self-governance, granting those powers to the Ontario courts that pushed the Canadian government into recognizing gay marriage.
The term "law" in the gay marriage context no longer means "written code," nor does it mean "process," but simply "whatever we can get away with." Why anybody should respect the law if this is how it is to be made, is beyond me.
I guess maybe you libertinians are no longer bothered by the notion of an imperial executive branch, or of a loss of sovereignty to foreign courts...
I can live with gay marriage. It doesn't bother me if the people vote for it, or their representatives do - that at least minimally reflects a social evolution of the institution of marriage. But the efforts of advocates whose sole law is "by any means necessary" is fast turning me into an opponent. The handholding between libertarians and Gramscians gives me pause.
The New York legislature has had ample opportunity to pass a DOMA. It can pass a DOMA now if it so desires and Paterson's order will be invalidated (and never would have occurred had their been a DOMA in the first place).
But without a DOMA, Paterson is doing nothing more than following the standard rules of comity. The ball is (and always was) in the legislature's court.
absolutely. why bother voting on issues at all any more? simply declare "widespread support" and make it so!
In other words: the most democracy-friendly views towards the issue of SSM is found right here at this site. Out in the real world, these guys would be considered not extreme enough.
I was surprised at one statistic mentioned in passing in the article: that "New York is one of five states that does not have a statute or constitutional amendment banning recognition of such marriages." In other words, fully 45 states DO have such statutes or constitutional amendments.
My prediction: the next battlefield is not in New York, its not in Massachussetts, its not in California. It is in those 45 states. Perhaps the Ottowa judiciary will give us excuses to ignore those 45 amendments and statues, too. What do you think, Dale? It might be wise to start prepping the environment now. While judges can obviously overrule whatever they want, overruling a constitutional amendment is going to be tougher-it will take a bit more finesse...
Sk
I don't see any "end run around the courts" in this circumstance.
Some people laugh at the 'slippery slope', but isn't that exactly what's going on here? Gay 'marriage' in New York as a direct result of gay 'marriage' in other states? I'm coming to the conclusion that the only way to reverse the modern slide into utter depravity - a slide that will inexorably end in the destruction of the United States - is a federal Constitutional amendment banning gay 'marriage' and explicitly removing homosexuals as a protected class. And it will have to be done quickly, before too many states have firsthand experience with 'married' gay couples and the people there lose their righteous contempt for them. It may already be too late.
If you'll recall, Paterson was not, in fact, elected. This is just another end run by an unelected, unaccountable homofascist tyrant.
The remaining remedy for anti-gay marriage activists is persuade their fellow New Yorkers to vote the governor and gay-friendly legislators out of office."
Nah, their remaining remedy will be to do a 180 in talking points. Concerning California, the talking points are the usual ones about activist courts ignoring the will of the elected branches. But in New York it's the governor acting and he's elected, thus we get Al saying:
And making an executive branch end run around the courts... brilliant!
In other words, it's a shell game in which nothing any branch does in support of SSM is ever legitimate. No doubt if the Anti-SSM amendment in California fails in November, that will somehow be illegitimate as well.
Suppose the next US President, whoever he or she may be, were to issue an order to all executive branch agencies to recognize same-sex marriages validly performed in any US State. In particular, he or she orders the IRS to allow same sex married partners to file joint tax returns.
Would you support such an action by the President?
The NY legislature years ago passed a law which basically states "marriages valid elsewhere are valid here". There are exception in the statute (such as polygamy and minors) but gays are not listed as an exception, probably because the statute is old.
The NY Courts have simply enforced the statute to recognize gay marriages from elsewhere, and now the Governor is ordering that state agencies follow the same policy.
Point is, the courts and the executive are enforcing a LAW.
You're admitting that when people have actual experience with SSM they find out it is nothing to worry about?
Also, Paterson was elected in 2006.
Such an order be void because of the federal DOMA.
The NY legislature has passed statutes listing specific marriages that should not be recognized. See NY Domestic Relations Law s.5 - incestuous marriages for an example.
Gay marriages were never listed by the legislature, so the courts applied their standard "recognize unless you say not to" policy.
Also, I think DOMA is going to be history if the Dems sweep into the Presidency and get majorities in Congress. It needs to be repealed if foreign partners of American gays are to have any chance of being reunited (thanks to the USA's hilariously f***ed up immigration system).
I see a vote for cloture on anti-DOMA failing 52-48 or worse.
-It's not an end run, it's typical law
-He was elected, as Oren pointed out
-He is accountable, through impeachment and reelection
-Homofascist tyrant? Seriously?
Yes, that's exactly what's going on. No one seems to care if it's THEIR policies that are in favor. And let's be frank: whether by judicial, executive, or legislative power, there is no quibbling over the means as long as the ends are satisfied. People just don't care about improper means anymore.
I'm coming to the conclusion that the only way to reverse the modern slide into utter depravity - a slide that will inexorably end in the destruction of the United States - is a federal Constitutional amendment banning gay 'marriage' and explicitly removing homosexuals as a protected class.
That will never happen. It's more likely that they'll repeal the First Amendment granting religious people protection from the state, in order to prosecute people who don't toe the line on so-called homosexual "marriage." They'll do it under some kind of new Equal Rights Amendment or something, in order to federally overturn all of those state constitutional bans on so-called homosexual "marriage" and to punish private people who don't agree.
And it will have to be done quickly, before too many states have firsthand experience with 'married' gay couples and the people there lose their righteous contempt for them. It may already be too late.
I'm not sure what you mean by this, but let's be clear: the public acceptance of something has nothing to do with whether it is right. Just as before when homosexual sex was rightly considered a sin and a depravity, now more people in public don't see anything wrong with it. I foresee the same thing with homosexual "marriage." But that doesn't mean that it won't have the downsides that are readily apparrent to all who haven't lost their reason over the issue. Public widespread acceptance of homosexual "marriage" will come with it public widespread attacks on religious people who don't agree, attacks on fatherhood and motherhood specifically (most likely these attacks will originate from the state in various means), attacks on family, etc, etc. Contrary to the lunatic assumptions of the libertarians on this blog, there are plenty of downsides to homosexual "marriage" that will affect a person's individual rights, along with the social health of this country.
This ranks right up there with Driver's Licenses to illegal aliens in arrogant attitudes to voters. Outside of the major cities - NYC, Albany, and Buffalo - there is scant support for the entire liberal agenda.
And everyone knows that if the Governor is hit by lightening or caught banging a $4000 hooker that the Lt Gov takes over. That's part of the deal.
Oh, it won't be done with explicit wording saying "The First Amendment is repealed." The Courts will just read the new Equal Rights Amendment onto the FA, as an appropriate modifier. Because the new ERA is sure to include a provision on hate speech or something. That's the trend of Europe and Canada, notwithstanding the furor over Canada's Human Rights Commission. There are many, many people who are in favor of shutting down private speech that offends others.
It is. Look at the stats for under 30 people. They support gay marriage by large and growing margins. The anti-SSM folks have an opportunit yto cut a deal on civil unions still, but that window will close in the next few years.
Re: Suppose the next US President, whoever he or she may be, were to issue an order to all executive branch agencies to recognize same-sex marriages validly performed in any US State.
The DOMA would preclude this. New York state has no such legislation on its books.
In NY, the courts have been recognizing "foreign" gay marriages as marriages for a bit now. However, gays have been having to sue repeatedly to have this done. This order by the Governor essentially says "Stop making them sue (and win!) over and over. Just recognize them."
So, before, the Health Department might refuse to recognize your gay marriage. You sue and win. Now the health department recognizes your marriage, but the motor vehicle department doesn't. You sue and win. But now the....
The Governor put a stop to that.
Exactly right. This went through all the proper channels. The electorate is in no way being disenfranchised. If they don't like it, they can elect legislators who will change it.
I'm noticing an increasing trend where the anti-gay ideologues have no substantive arguments to make, so they dress their objections up as process arguments. But even if you agree with what is apparently their argument that the courts should not have a role in deciding the constitutionality of legislative statutes -- and thus that marriage equality in Massachusetts and California is illegitimate -- it's hard to argue that this kind of executive order clarifying an existing policy of honoring out-of-state marriages in any way overstepped the governor's authority. Yet this is exactly what the anti-gay ideologues are now claiming. Just more evidence that opponents of marriage equality are intellectually bankrupt activists blinded by their hatred/fear/self-loathing, in case as much was not already painfully apparent to all neutral onlookers. (In fact, it seems that it IS apparent to the population at large as public opinion trends are swinging steadily against them.)
And no one expected Spitzer to be dirty. And no one realistically expected Patterson to do anything but kiss babies and attend funerals. Even Patterson thought the job would be a dead end. So the fact that he wasn't elected on a gay rights platform is relevant. He isn't enacting his mandate, because he doesn't have one.
Worse still, the political arm of the Governor's office advocated this change and the Governor went through with it because he was raised by a gay nanny. That wouldn't be the same as a Child Welfare agency recommending that gay adoption be recognized by the state and the Governor approving that recommendation and setting a uniform statewide policy in that regard. It just looks tacky, purely political, and totally unmoored from real democratic accountability. And it is not persuasive for proponents of these improper means to pretend they aren't improper. If you support the ends, fine. But that's no reason to abuse the political system and other people's tolerance for unfair play.
Gay marriages were never listed by the legislature, so the courts applied their standard "recognize unless you say not to" policy.
This is a perfect example of a bogus argument. The Legislature didn't list gay marriages in its -- your words -- "old law" because the idea of gay marriages is new and the law was old. That's exactly why the court shouldn't have pretended that a Legislature over a hundred years ago could have seen into the future and contemporaneously listed gay marriages in its statute to head off future gay activists at the pass.
That is why the Legislature needs to act on this issue. Not some offical issuing an executive order. Then why doesn't our governor sign an executive order outlawing guns? Or allowing whatever the hell he wants to allow that the majority approves of?
Sounds like the tyranny of the majority to me.
My uneducated (at least legal) mind says that if the Legislature is silent on the matter, the courts can only say that the Legislature is silent, and leave it us to the Legislature to break the silence. Not for the courts to create new protected classes.
Also, Aleks, use the freaking blockquote button!!! It's not hard. Select the text to be quoted then hit the button. Use Preview if you are unsure what it will look like when parsed! It's damn near impossible to read your posts as they are.
There is no such opportunity. Gay people are not -- and should not be -- satisfied by explicitly second-class status even if identical rights and privileges inhere. The public is quickly coming around. There is no path to victory remaining for the anti-gay ideologues. The best they can hope for at this point is to stall progress for another couple of years -- but it is ultimately inevitable.
The one chance they had at true victory was a federal constitutional amendment. That would have codified their bigotry for the foreseeable future, since it takes such a small number of rural states to block any effort to repeal an amendment. But fortunately the country weighed and rejected that amendment.
Uh. That is already the case. The Republican Senate will not pass a gay marriage law. Spitzer tried and failed.
it's hard to argue that this kind of executive order clarifying an existing policy of honoring out-of-state marriages in any way overstepped the governor's authority. Yet this is exactly what the anti-gay ideologues are now claiming. Just more evidence that opponents of marriage equality are intellectually bankrupt activists blinded by their hatred/fear/self-loathing, in case as much was not already painfully apparent to all neutral onlookers.
The problem is that it isn't "existing policy" -- that "existing policy" was judicially created by misinterpreting an old statute. And the executive order is based on the Governor's political preferences and whims rather than an independent assessment by an independent state agency. Such an executive order would make sense under circumstances in which there is confusion or conflict amongst various state agencies as to what the law is, and in the absence of a statute, the Governor issues a directive that establishes a uniform interpretation. But that is not what happened here. Instead, Patterson simply decided, because he supports gay marriage and had gay babysitters, to unilaterally impose this. Improper. And calling someone a bigot for considering it improper is projection.
See, but most of us think the law means what it says, not what you tendentiously suppose the long-dead legislature meant by it. In this case the statute isn't even ambiguous.
So Vice Presidents can't do anything after the President is assassinated? News to me.
Besides, the state of NY has already lost several lawsuits on this issue. Your argument is that the Governor should have... kept losing the state money?
This argument has no merit because the Legislature had the ability to add gay marriage to the "prohibited list" at any time. They did not do so knowing that gay marriages might be recognized if they didn't. 45 other states chose to add gay marriage to their own "prohibited lists." NY didn't.
This is very standard law, recognized for over a century. All these rules were worked out back when states had different age limits, relation requirements, etc. The courts did not do anything new. I can point out older law review articles arguing that foreign gay marriages would eventually be recognized in NY under current law. Lo and behold, it came to pass.
This is totally improper.
The majority may not infringe on my rights but anything else they do, consistent with the enumerated powers of government, is not tyranny but democracy.
The Leg isn't silent on the matter. It provides that NYS shall recognize out-of-state marriages unless they fall into some categories.
Again with the bogus question-begging. If you're going to assume that legislative intent can be inferred from silence, then you should take the fact that the legislature refused to enact a gay marriage law as definitive on the issue. But you don't care about logic or sound interpretation or fidelity to the law, you just want gay marriage by any means necessary, even if you have to twist logic, contravene legal customs, and abuse legal process to do it. That is what offends people.
The legislature did not say "gay marriages from foreign legislatures shall be recognized in the state of New York". By strict interpretation, your argument is even more bogus. I was being charitable.
The plain language of the statute does not mention gay marriage.
There is no reason that a state should prevent one competent adult from legally marrying another competent adult.
As a matter of religious freedom any church should be free to not recognize gay couples as married "in God's eyes" or to refuse to officiate a gay wedding.
But the secular government has no business making such judgements. Gay marriage has zero impact on the stability of society or the "family".
"Judicially created"? I thought we were talking about the Governor. It must be hard to have so many branches of government against you.
It was existing policy. It is the most straightforward interpretation of the statute's plain meaning. If you disagree with the interpretation, that's fine, but we have a system for deciding which interpretation is correct, and that system is the courts. Let's review the political checks and balances in place here:
1) The governor was voted in as Lieutenant Governor, the guy who everyone knew was "one heartbeat away" from the high office.
2) The judges are appointed by the governor and confirmed by the legislature. Both the governor and legislature are elected.
3) The legislature is voted into office and can be voted out of office.
So here are your options:
1) Elect a new governor who can change course on this executive order. You'll still have to convince the courts, but that's the process.
2) Try to get judges appointed and confirmed who are more to your liking. Do this with your new governor or with your new legislature; either will work.
3) Vote for a legislature that will write a DOMA statute or state constitutional amendment.
If you can't succeed on any of those avenues, then maybe the problem isn't that the will of the people is being thwarted, but rather that the will of the people is against you. In which case, tough beans; at least there will always be blogs for you to complain on.
Wait, an executive using his power to further policy goals that he supports? Surely you jest!
Fair enough. I gather you support incestous marriages.
You have such interesting and novel theories about New York State civics. Here's a hint: only the legislature can write or rewrite statutes, and if the agency's regulations conflict with a statute, they must be changed.
Unless all of a sudden you want to argue that the plain meaning of a universal quantifier doesn't include everything not otherwise excluded. Good luck with that.
You obviously haven't read the report. The Governor's action is premised on a judicial interpretation of a statute whose plain language does not mention gay marriage. That is why proponents of this action seek to justify both the executive action and the judicial interpretation of the statute. The problem is that if the judicial interpretation is bogus, the executive action isn't supported by law. This is basic.
Fair enough. I gather you oppose interracial marriages.
The law, for over a century, has been "we will recognize all valid out of state marriages unless told not to." Now you can argue that this should not have been the law, but the law it was. No good lawyer can claim to be surprised by it.
Example. NY has a minimum age of 18 on marriages. Alabama says its 17. Two people in Alabama get married in Alabama and move to NY. They apply four spousal benefits from a state government agency, which refuses. What result when the couple sues in court?
Answer. The court will order the agency to recognize the marriage and provide benefits. The longstanding policy of NY is to recognize all valid marriages unless instructed not to.
I can find you many, many, many cases just like that one. It's been that way for over a century. In fact, that is standard law in most of the 50 states. Take a look at the Restatement of Conflict of Laws. This is black letter law that a 1L can follow.
Now just repeat my example using gay marriage. NY did not enact a law excluding gay marriage, like many other states did. A gay couple moves to NY and sues for benefits. What result?
...and take your argument about "contraven[ing] legal customs" somewhere else
Yes, but the statute is old, and you argued that the plain language controls. Using an anachronistic definition for a term of art in a statute isn't plain language interpretation, so if you really believe that plain language controls, then the operative definition of marriage in that old statute must exclude gay marriages, which are a recent and novel idea. If the legislature had passed a statute that redefined marriage in the state of New York, you would be on firmer footing. It chose not to do that. And the Court of Appeals also weighed in on the question, noting that it could not redefine the definition of marriage in the New York statutes. The Legislature has to do that.
Fair enough. I gather you oppose interracial marriages.
On the basis of what? I do not agree that "There is no reason that a state should prevent one competent adult from legally marrying another competent adult." One reason I can think of is "to prevent incest". That has nothing to do with interracial marriage.
It also does not mention marriage between people of different races (interracial marriage), or marriage between people with different eye colors (heterocular marriage), or marriage between left-handed people (adextrous marriage), or marriage between two old people (homogeriatric marriage), or marriage involving at least one person who fears the number 13 (intertriskadecaphobic marriage).
Gay marriage is another kind of marriage. If you think it offends public policy, then I guess you can litigate on that basis. Otherwise, stop with your ridiculous theories of statutory interpretation.
IOW, you don't get to decide which interpretation of their laws is bogus.
It didn't have to, because the definition of marriage in New York state did include anything other than the union of spouses consisting of a husband and wife, as the plain language of New York statutes show, and as the New York Court of Appeals held.
No. I have not.
The definition of marriage in New York state also does not include marriage between first cousins, I believe, and yet the state still considers them married if another state marries them. This is not a new concept.
We don't have an opinion from the Court of Appeals on that, and Patterson's action has nothing to do with that.
I know. I interpreted your post the way I supposed you meant it, and against the plain meaning of what you said. Note that I am permitted to do this because it is not a statute.
So you're saying that if the Court of Appeals agrees that the state statutory ban on marrying first cousins is constitutional, then New York will no longer recognize the marriages of first-cousin couples who were duly married in other states? This result makes no sense.
Actually, you're the one who put forward plain language controlling. My point was only that you are improperly applying plain language interpretive principles. Someone else put forward that we should read legislative intent, and my point then was his reading of legislative intent is incoherent and contradictory, as well as contrary to the positive law. I don't have a problem with gay marriage, but I do have a problem with your shoddy arguments, which aren't interpretive, aren't legal, and aren't even political. They're just emotional, and whenever someone points out the obvious flaws in them, you attack that person by tarnishing her as a gay-hating bigot. The notion that "gay marriage is just another kind of marriage" is a novel concept, one that you accept, one that people are free to accept, but not one you are free to inject into the law when it is not actually there. That kind of thinking is the core of anarchy, and it breeds contempt and disrespect for the law.
There are tons of cases where NY does not perform certain types of marriages (say, cousins) but will recognize the marriage if performed elsewhere. The Court of Appeals has said so.
So try to really answer Pender's point. Say the NY Court of Appeals says cousins can't marry under NY law because they don't fit the NY requirements. However, cousins are not on the "prohibited" list. Cousins marry in another state, move to NY, and ask for spousal benefits. What do you TDHTE think the legally correct result should be based on the clear precedent of recognizing all marriages unless instructed not to? It's not that hard. It's standard law in almost every state.
I am a married heterosexual who supports SSM.
Were it put to a vote I would go vote against any DOM amendment because I believe that such an amendment violates a basic human right: the right to choose your own spouse.
But most people like me wouldn't care. Were such an amendment approved it would not impact them or anybody they know. For that reason they are likely to not vote at all.
Who does that leave? Gay men and women and the religious right. The RR are well known for getting out the vote (see Iowa and Mike Huckabee) so a small, but vocal sub-group can foist their religious views on another sub-group.
So let's not pretend that the 'voice of the people' is being thwarted here. It is the voice of the religious right, which is hardly a majority of us all.
No. I am saying that your first cousins hypothetical is irrelevant to our discussion.
Let's say that the Supreme Court of the United States decides that the President has no power to pardon anyone.
It IS actually there. In case you missed it, California now calls it marriage. That means that unless it runs afoul of an independent New York statutory bar or "offends public policy," New York must recognize it as it recognizes all other marriages. It's a straightforward legal argument, echoed by the scholars in the NYTimes article that Dale cited in his original post. If you think you know better, by all means feel free to file suit.
The opponents of gay marriage, on the other hand, have called it "the homosexual mafia", asserted we want to repeal the 1A, accused us of a plot to "destroy marriage" and assorted other things that lead me to believe that they don't exactly assume good faith.
Ah. Those of us who are familiar with the law call this "fighting the hypothetical."
-In NY, two people must have quality X to be married.
-These two people do not have quality X
-These two people can not get married in NY
-However, in California two people can get married even if they do not have quality X
-NY law for over a century says that valid marriages from other states will be recognized unless the legislature says not to do so
-The NY legislature has not said not to recognize marriages without X
-Therefore the California marriage will be recognized in NY
X can be cousins, X can be separate genders. The logic is the same.
Patterson is trying to overturn this unilaterally.
We have all read Supreme Court decisions that left us wondering "how on earth did they come up with that?" However, under any legal system, somebody must have ultimate and final authority to resolve disputes about what the law is, and under our system that somebody is the Supreme Court. So, if the Supreme Court decided the President has no authority to pardon anyone, I would think they were nuts but it would still be the law.
No wonder you are having trouble defining marriage! You can't even reckon how an objectively wrong judicial opinion issued by judges smart enough to know it is objectively wrong is a sham.
No, it would not be the law. The Constitution is the fundamental law and the pardon power is right there in the Constitution.
The NY Court of Appeals found that you must have quality X to get married in NY, and opposite sex people do not have it.
That does NOT mean that foreign marriages which lack X will not be recognized.
I find your logical pattern about as persuasive as "if the Supreme Court decided the President has no authority to pardon anyone, I would think they were nuts but it would still be the law."
Right; so same-sex couples can't get married in New York.
Right; so same-sex couples can't get married in New York.
Right; so same-sex couples can't get married in New York.
Right; so same-sex couples can't get married in New York.
Right; so same-sex couples can't get married in New York.
Right; so same-sex couples can't get married in New York.
None of this, naturally, addresses whether couples who are ALREADY MARRIED are entitled to have their marriage recognized in New York. On that, the courts and the governor agree: they can.
Also, you should reread Chris's last post. The State of NY must accept marriages from other jurisdictions that would be illegal to solemnize in NYS.
After all, what I wrote is black letter law. Pick up a copy of the Restatement of Conflict of Laws.
I think you're on my side on this one, but I do think it's important that people care that same-sex couples have access to the same term. Wouldn't you care if black couples were allowed to enter only into "Negro Mating Pairs" even if all the rights and privileges were the same as marriage, and even if you are personally white? I'd care, and I'd fight as hard as I could to have their relationships recognized as marriage.
You get to the same destination whether you sit in the back of the bus or the front of the bus, but that doens't mean it's okay to make a certain class of people sit in the back.
By the way, I find nothing wrong (in fact, it is entirely laudable) to disagree with court rulings and to write volumes about how they are wrong, misguided, internally inconsistent or downright unintelligible. That keeps most of the Conspirators off the streets (where they could do serious harm).
On the other hand, part of the contract of our form of government is that we accept the courts as the final arbiters of these decisions (of course, the legislature can write another statue, the governor can appoint new Justices, the people can pass initiatives and amend the constitution). That's how the Founders wrote the US Constitution.
I can only assume from your comments that you have nothing but contempt for the system that the founders put in place for resolving judicial disputes.
Not only does Pender lack a respect for the rule of law. He's also a racist.
I'm done. Goodnight everybody!
But since gays have a lower life expectency due to their personal practices, those practices tend to increase my health insurance rates. Government promoting those practices surely does pick my pocket (indirectly), making it more costly for me to get treatment if I do happen to break my leg.
Also, the added benefits for these "spouses" will cause my taxes to go up (since we are also talking state employees to be included) to cover the costs of the added benefits. That is a more direct "picking of my pocket".
Or doesn't that count?
Live and let live is a fine personal philosophy. No matter how absolutely disgusting the practices are.
"A constitution is, in fact, and must be regarded by the judges, as a fundamental law." -- Alexander Hamilton, Federalist No. 78
"I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination."
-- Abraham Lincoln
First Inaugural Address
Monday, March 4, 1861
I believe in rule of law, not rule of judges. Judges may not contravene the fundamental law, as it binds all government. This should be an uncontroversial view.
-In NY, two people must have quality X to be married.
-These two people do not have quality X
-These two people can not get married in NY
-However, in California two people can get married even if they do not have quality X
-NY law for over a century says that valid marriages from other states will be recognized unless the legislature says not to do so
-The NY legislature has not said not to recognize marriages without X
-Therefore the California marriage will be recognized in NY
And this:
"None of this, naturally, addresses whether couples who are ALREADY MARRIED are entitled to have their marriage recognized in New York. On that, the courts and the governor agree: they can."
Assumes the conclusion. Marriage, by definition, has always been a union of a man and a woman. Conditions such as age or nature of relations (first cousins) are matters for individual states to determine, but the basic FACT of marriage is that it was always a union of a man and a woman.
Permitting "quality X" (homosexuality) in marriage destroys the definition of marriage entirely. It is ABSURD to say that "in california people with quality X can get married."
Assume, for a minute, that "quality X" here isn't homosexuality but sex with animals. Since that isn't prohibited by the NY law, would that ALSO be considered "marriage"? No, because marriage is between a man and a woman. It is not between humans and animals, nor between homosexuals.
Eating the definition doesn't allow you to claim that a law written decades ago is consistent with your new definition.
A fair reading of ANY marriage law MUST presume that the authors limited it to unions of men and women, and INHERENTLY didn't author it to presume unions of homosexuals anymore than it would presume unions of humans and animals. Unless the law is specifically changed to say that unions of homosexuals are also to be called by the state "marriages", then it is an absurdity to claim that marriage laws written decades ago can be read to include homosexual unions.
It should be rather obvious that there is no black-letter law on recognition of out-of-state gay marriages, as the legal issue is a novel one.
Now you're just being an ass. The entire point of my post was that all decent people should care strongly about opposing such a racist classification.
This is an incredibly weak argument.
Yes. And the New York Court of Appeals explicitly held this when it directly decided the gay marriage question.
No, THIS assumes the conclusion. There is no statutory or constitutional support for the notion that individual states can determine whether cousins can marry but not same-sex couples.
That was not evident from the racist language in your racist comment.
Totally irrelevant.
I appreciate the sentiment, but since homosexuals do not seek what has traditionally been called "marriage," I do not understand the desire to call it such.
this is an incredibly weak argument.
It's not a constitutional issue. It's a matter of basic reality. Red is red. A is A. Marriage is a union of a man and a woman. Courts might try, but they do not get to re-write reality.
Ridiculous - I dont believe anything in the comment could be taken as racist
It will be interesting to see how people will oppose same sex marriage in other states a few years from now, when it's obvious the sky hasn't fallen on New York, Massachusetts, or California. If the best they can muster is outrage at the particular way each new state recognizes same sex marriage I think it will spread lot faster than I ever would have guessed.
Very weak argument. Blacks heterosexual couples qualify for marriage homosexual don't, because homosexual couples can't procreate.
Actually, I think you are saying that you're backed in to a corner, and want to change the subject.
I made more than a few. One was that he's trying to unilaterally overturn the Court of Appeals decision that clarifies the definition of marriage in New York's Domestic Relations law for purely partisan reasons unrooted to his electoral mandate rather than in his official capacity as the State's top enforcer and administrator in response to actual confusion amongst state agencies. Those are all legal claims and all are of substance.
Support? I neither support nor oppose. As I stated, as long as they are mentally competent adults, it is their call. The same goes for plural marriage or interracial marriage.
One wife who is not genetically related to me is sufficient for me, but why should my preference be the deciding factor for others.
There are many acts and behaviors, such as murder, theft, and assault, that we rightly prohibit. But aside from the genetic issue, how does marrying your cousin, or 2 of your cousins hurt society?
Who you marry, who you have sex with and what orifice you use should be a matter of personal preference and concience between consenting adults and not a matter in which my neighbors, in the form of a popular vote, should have any say.
I am a homosexual and I seek what has traditionally been called "marriage."
Do you really think this whole thing would be such a political issue if no gay people wanted to get married? Give me a break.
You'd expect lower life expectancies to save $$ in the incredibly high cost of taking care of elderly people.
In any event there have never been any credible studies that demonstrate lower life expectancies that would be valid today. It's possible with AIDS that gay life expectancy is somewhat lower, but there's no number we could put on it. And if we actually got an accurate average or a median figure I'd imagine the number of years would be undramatic.
Not at all. I just don't see how an abstract discussion about whether "[t]here is no statutory or constitutional support for the notion that individual states can determine whether cousins can marry but not same-sex couples" has anything to do with Patterson's actions or the valid cricitisms or defenses of it.
So I assume you're opposed to geriatric marriage, too, since old people can't procreate?
People were responding by not electing democrates, as long as they could. People will countinue to fight for the agains fascism.
Which only highlights how novel this political -- not necessarily legal -- issue is.
Your argument is based on some sort of "essence of marriage" which homosexual couples lack. I don't know where you get that from, and I don't know how a court could judicially apply it.
For starters, doesn't it mean anything that several states now recognize homosexual marriages as marriages. That fact certainly implies that perhaps heterosexuality is not so essential as you might think. The citizens in several states and many countries disagree with you, and the courts aren't going to ignore that. They take an attitude of "We do not think this is marriage, but they do and we will respect it and treat you accordingly."
Second, don't overestimate your counterexamples. Maybe bestiality would be recognized in NY if Oregon started recognizing it! For that to happen, one state would first have to say that "this counts as marriage", a policy choice that courts under current law are bound to respect. Of course, there are two limits on that. 1) The legislature can add to its "prohibited list" and 2) the Courts reserve the right to reject marriages which are truly repugnant to public policy - a choice the NY courts specifically turned down with gay marriage.
Third, have a look at the famous case of May's Estate. There are certain Orthodox Jews that allow Uncles to marry Nieces. NY does not do this and considers it incest. The uncle and niece can not marry in NY, but Rhode Island used to allow it. A married uncle-niece moved to NY and the uncle-husband then died. The wife-niece claimed the right to his estate. The NY courts recognized her right over the objections of the next relative. That shows how far the courts are willing to go with this doctrine; they have recognized incest! The fact that homosexual marriage departs from the traditional concept of marriage has not been enough to sway the NY courts - it's still marriage in California and that is that.
Just curious about your title... what "true" equality do you really think this harms? It's quite clear that all people are equally able to have their same sex marriage be recognized in NY... were you worried that you wouldn't be able to?
Well, that is not the law. Plural marriage and incestuous marriages are illegal. At least you are honest in stating that the principle you believe undergirds a right to gay marriage necessarily leads to polygamy and incestuous marriage. Would that others were so honest.