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Gay marriage by executive decision in New York:

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.

Rex (mail):
The problem in New York is not recognition of gay marriages, which has already been done in various communities at the local level, but rather getting a gay divorce. There is one NYC couple who got married in Massachusetts who have split up and can't get a divorce in New York State. They are unwilling to establish residency requirements in Mass. to get their divorce.

So I predict that gay divorce will be the next gay issue in New York.
5.30.2008 11:51am
Ai:
If two people are legally married in the eyes of New York State, there would be nothing to prevent them from legally divorcing in New York State.
5.30.2008 11:57am
Al Maviva (mail):
Excellent stuff! Bravo for the gay marriage movement! And making an executive branch end run around the courts... brilliant!

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.
5.30.2008 11:58am
some guy in Ohio:
As long as the result is one you favor, then executive fiat is all right? How anti-libertarian.
5.30.2008 11:59am
SHG (www):
A February 25th decision, Beth R. v. Donna M., (No. 350284/07, N.Y. State Supreme Court Justice Laura E. Drager, N.Y. County) has allowed an action to dissolve a Canadian divorce to proceed.
5.30.2008 12:01pm
jrose:
Al,

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.
5.30.2008 12:05pm
tim maguire (mail):
Given the widespread support for gay marriage in New York as cited in the essay, the title seems misleading.
5.30.2008 12:07pm
some guy in Ohio:
tim maguire,

absolutely. why bother voting on issues at all any more? simply declare "widespread support" and make it so!
5.30.2008 12:10pm
Sk (mail):
And remember: the libertarians on this site at least claim to respect judicial restraint. Most of our legal infrastructure (judiciary, law professoriate, etc) aren't libertarians.

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
5.30.2008 12:11pm
Adam J:
Al Maviva- It robs us New Yorkers of self governance? I dunno about that, here in New York our governor is elected, if we don't like Paterson's policies we can just elect a new governor. The legislature hasn't spoken on whether New York should recognize out of state marriages, so I don't see why this is suddenly outside of his authority. I suppose if the court had made the ruling it would have been a judicial end run around the executive...
5.30.2008 12:13pm
PLR:
Excellent stuff! Bravo for the gay marriage movement! And making an executive branch end run around the courts... brilliant!

I don't see any "end run around the courts" in this circumstance.
5.30.2008 12:15pm
ithaqua (mail):
I wish Spitzer was still in power. His sexual perversions only harmed his own marriage.

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.
5.30.2008 12:18pm
eddiehaskel (mail):
I guess all of those signing statements made by our current president (on issues much more important than comity with respect to gay marriage) equally mortify all of these anti-gay marriage libertarians. Although it would be interesting to hear a rational libertarian argument against gay marriage.
5.30.2008 12:18pm
ithaqua (mail):
"I dunno about that, here in New York our governor is elected, if we don't like Paterson's policies we can just elect a new governor."

If you'll recall, Paterson was not, in fact, elected. This is just another end run by an unelected, unaccountable homofascist tyrant.
5.30.2008 12:19pm
Cornellian (mail):
"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 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.
5.30.2008 12:21pm
some guy in Ohio:
thought experiment: let's extrapolate this up one level.

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?
5.30.2008 12:21pm
Chris Bell (mail) (www):
Several commentators have (predictably) already missed the issue.

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.
5.30.2008 12:23pm
strategichamlet (mail):
"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"

You're admitting that when people have actual experience with SSM they find out it is nothing to worry about?
5.30.2008 12:23pm
Oren:
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.
Aside from the word righteous, this is actually the most intelligent post I've seen from a troll in a while.

Also, Paterson was elected in 2006.
5.30.2008 12:26pm
jrose:
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

Such an order be void because of the federal DOMA.
5.30.2008 12:26pm
Oren:
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.
Oh darn!
5.30.2008 12:26pm
Chris Bell (mail) (www):
Sorry, let me amend my statement a bit. It has been the long policy of New York courts to "recognize marriages unless the legislature says not to." This has been the stated policy for over a century.

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.
5.30.2008 12:34pm
Teegraff (mail):
The big thing gay marriage opponents forget is that once it passes, and gays start getting married, the sky doesn't fall. And people stop caring about this non-issue and go back to their lives.

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).
5.30.2008 12:37pm
Oren:
Teegraff - I don't see 60 votes to repeal DOMA in the Senate. Even with 55-57 Dems, there are a number (Tester, Webb, Lieberman) that will vote against and very few GOP defections.

I see a vote for cloture on anti-DOMA failing 52-48 or worse.
5.30.2008 12:40pm
Chris Bell (mail) (www):
I nominate ithaqua for "most overblown reaction" award. I had to wonder whether this was sarcasm: "This is just another end run by an unelected, unaccountable homofascist tyrant."

-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?
5.30.2008 12:42pm
Oren:
Such an order be void because of the federal DOMA.
Unless the DOMA is an unconstitutional Congressional encroachment on the President's Art. II powers to supervise the unitary executive.
5.30.2008 12:42pm
Elliot Reed (mail):
Also, since New York recognizes the marriages, gay couples residing there would not have the problems those with Massachusetts marriages have had previously. Several states have found that their same-sex marriage prohibitions bar them from divorcing Massachusetts marriages, which would mean one party to the marriage would have to move to Massachusetts for a year in order to terminate the marriage. If the couple lives in New York, they can presumably get divorced there because New York recognizes the marriage. This won't help same-sex married couples residing in other states because New York has a two-year residency requirement for divorce, but it eliminates a major unanticipated difficulty for couples who got married in Massachusetts.
5.30.2008 12:45pm
DangerMouse:
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?

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.
5.30.2008 12:46pm
K. Dackson (mail):
Sorry friend. Patterson was elected Lieutenant Govenor, almost as high a standing as Vice President. He took over when Spitzer got caught not thinking with the big head (although there is some question as to the validity of that argument as he was such an arrogant dick by most accounts). As a NY Resident (born and raised here), I never recall Patterson even campaigning, let alone issue any policy statements.

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.
5.30.2008 12:46pm
Oren:
It's more likely that they'll repeal the First Amendment
Seriously? I don't even know how to begin to even start to consider possibly contemplating a response.

Sorry friend. Patterson was elected Lieutenant Govenor
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.
5.30.2008 12:49pm
Oren:
Outside of the major cities - NYC, Albany, and Buffalo - there is scant support for the entire liberal agenda.
Outside of NYC, Albany, Troy and Buffalo are less than 50% of the population of New York State.
5.30.2008 12:51pm
DangerMouse:
Seriously? I don't even know how to begin to even start to consider possibly contemplating a response.

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.
5.30.2008 12:54pm
Aleks:
Re: It may already be too late.

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.
5.30.2008 12:54pm
Oren:
Actually, I should amend my 11:51 -- NYC and the surrounding counties (not including the ones in Jersey, CT or PA) constitute >65% of the electorate in NYS.
5.30.2008 12:55pm
calmom:
In California, our Supreme Court ruling will have no practical effect. Gay couples already got all the rights of married couples under California's domestic partnership laws. The ruling is only semantics; 'marriage' versus 'domestic partnership'. Is that the case in New York?
5.30.2008 12:55pm
Chris Bell (mail) (www):
calmom:

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.
5.30.2008 1:02pm
Pender:

Sorry, let me amend my statement a bit. It has been the long policy of New York courts to "recognize marriages unless the legislature says not to." This has been the stated policy for over a century.

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.)
5.30.2008 1:02pm
This decision harms true equality (mail):
And everyone knows that if the Governor is hit by lightening or caught banging a $4000 hooker that the Lt Gov takes over.

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.
5.30.2008 1:03pm
K. Dackson (mail):
So Oren, if the majority supports a proposition that is absolutely contrary to the views of the minority, the minority view should totally ignored?

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.
5.30.2008 1:05pm
Oren:
Because the new ERA is sure to include a provision on hate speech or something.
You sure don't have much faith in the American voter -- especially considering that Art V. requires lots of small conservative states in the middle to ratify.

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.
5.30.2008 1:07pm
Pender:

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.

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.
5.30.2008 1:07pm
This decision harms true equality (mail):
If they don't like it, they can elect legislators who will change it.

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.
5.30.2008 1:10pm
Pender:

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.

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.
5.30.2008 1:12pm
Chris Bell (mail) (www):
TDHTE:

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 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.
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.
5.30.2008 1:13pm
This decision harms true equality (mail):
And, not only is it totally political, rather than required by any legal conflict, but Patterson is actually ordering state agencies to rewrite the state's statutes in accordance with the policy agendas of liberal and gay organizations:


"As a result of the above, it is now timely to conduct a review of your agency’s policy statements and regulations, and those statutes whose construction is vested in your agency, to ensure that terms such as “spouse,” “husband” and “wife” are construed in a manner that encompasses legal same-sex marriages, unless some other provision of law would bar your ability to do so. A compendium of New York State statutes and regulations that use these terms, prepared by the Association of the Bar of the City of New York and the Empire State Pride Agenda Foundation, may be helpful in performing this review. A copy of this report is available at http://www.nycbar.org/pdf/report/marriage_v7d21.pdf."


This is totally improper.
5.30.2008 1:14pm
Oren:
Dackson, sorry but I don't buy the "oppressed hetero" storyline. I'm straight and allowing gays to marry neither picks my pocket nor breaks my leg nor violates any of my rights under the US or NY Constitution.

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.

if the Legislature is silent on the matter . . .
The Leg isn't silent on the matter. It provides that NYS shall recognize out-of-state marriages unless they fall into some categories.
5.30.2008 1:15pm
This decision harms true equality (mail):
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.

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.
5.30.2008 1:16pm
Oren:
state agencies to rewrite the state's statutes
Only the legislature, through formal vote, can modify statues in NYS. Perhaps you should try reading the NYS Constitution before writing things that are patently incorrect.
5.30.2008 1:18pm
Oren:
If you're going to assume that legislative intent can be inferred from silence
Legislative intent is irrelevant in cases where the plain language of the statue controls. This is basic legal construction.
5.30.2008 1:19pm
This decision harms true equality (mail):
See, but most of us think the law means what it says, not what you tendentiously suppose the long-dead legislature meant by it.

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.
5.30.2008 1:20pm
This decision harms true equality (mail):
Legislative intent is irrelevant in cases where the plain language of the statue controls. This is basic legal construction.

The plain language of the statute does not mention gay marriage.
5.30.2008 1:21pm
D Palmer (mail):
Good for NY.

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".
5.30.2008 1:21pm
Pender:

The problem is that it isn't "existing policy" -- that "existing policy" was judicially created by misinterpreting an old statute.

"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.
5.30.2008 1:22pm
Oren:
Uh. That is already the case. The Republican Senate will not pass a gay marriage law. Spitzer tried and failed.
And that is why NYS does not issue marriage licenses to gay couples. That question is entirely decoupled from whether NYS will honor gay marriages performed elsewhere.

Instead, Patterson simply decided, because he supports gay marriage and had gay babysitters, to unilaterally impose this.
Wait, an executive using his power to further policy goals that he supports? Surely you jest!
5.30.2008 1:22pm
This decision harms true equality (mail):
There is no reason that a state should prevent one competent adult from legally marrying another competent adult.

Fair enough. I gather you support incestous marriages.
5.30.2008 1:23pm
Pender:

Patterson is actually ordering state agencies to rewrite the state's statutes...

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.
5.30.2008 1:25pm
Oren:
Legislative intent is irrelevant in cases where the plain language of the statue controls. This is basic legal construction.
The plain language of the statute does not mention gay marriage.
It doesn't need to mention it because it says all marriages will be honored except those on the list.

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.
5.30.2008 1:25pm
This decision harms true equality (mail):
"Judicially created"? I thought we were talking about the Governor. It must be hard to have so many branches of government against you.

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.
5.30.2008 1:26pm
Pender:


There is no reason that a state should prevent one competent adult from legally marrying another competent adult.

Fair enough. I gather you support incestous marriages.

Fair enough. I gather you oppose interracial marriages.
5.30.2008 1:26pm
goldsmith (mail):
The only solution to this problem is for the State to completely divest itself of the business of recognizing any marriages.
5.30.2008 1:29pm
Adam J:
K. Dackson - Nice, so you're questioning the legitimacy of a Lt. Governor to become Governor... that's a sound argument. If you don't like the policies of the Governor of New York State, your welcome to vote for a new Governor come election time, or move on out. You can even argue why it's a bad policy in an attempt to convince him otherwise. And I've yet to hear any reasonable argument as to why he doesn't have authority here... it almost seems like you only think there isn't proper authority only because you don't like the policy.
5.30.2008 1:30pm
Chris Bell (mail) (www):
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.
Oh please.

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
5.30.2008 1:31pm
This decision harms true equality (mail):
It doesn't need to mention it because it says all marriages will be honored except those on the list.

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.
5.30.2008 1:31pm
Pender:

The Governor's action is premised on a judicial interpretation of a statute whose plain language does not mention gay 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.
5.30.2008 1:32pm
Oren:
The problem is that if the judicial interpretation is bogus, the executive action isn't supported by law. This is basic.
Indeed, this is basic. You have asserted that NYS Courts have no authority to interpret NYS law. Alas, they do and therefore any executive decision in line with the courts is, by definition, supported by law.

IOW, you don't get to decide which interpretation of their laws is bogus.
5.30.2008 1:33pm
This decision harms true equality (mail):
Now just repeat my example using gay marriage. NY did not enact a law excluding gay marriage, like many other states did.

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.
5.30.2008 1:34pm
Oren:
marriage involving at least one person who fears the number 13 (intertriskadecaphobic marriage)
Oh crap. My folks were married in a foreign country and then moved to New York before I was conceived! Thanks a lot guys, now I'm a bastard!!!!
5.30.2008 1:35pm
This decision harms true equality (mail):
You have asserted that NYS Courts have no authority to interpret NYS law.

No. I have not.
5.30.2008 1:35pm
Pender:

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.

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.
5.30.2008 1:35pm
This decision harms true equality (mail):
Correction: It didn't have to, because the definition of marriage in New York state did NOT 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.
5.30.2008 1:36pm
This decision harms true equality (mail):
The definition of marriage in New York state also does not include marriage between first cousins, I believe,

We don't have an opinion from the Court of Appeals on that, and Patterson's action has nothing to do with that.
5.30.2008 1:37pm
Pender:

Correction:

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.
5.30.2008 1:38pm
Oren:
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.
Unless that definition is written into the statute it's hardly "plain language" (unless you took a different course than I did on legal construction).
5.30.2008 1:38pm
Pender:

We don't have an opinion from the Court of Appeals on that, and Patterson's action has nothing to do with that.

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.
5.30.2008 1:40pm
This decision harms true equality (mail):
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.

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.
5.30.2008 1:43pm
Oren:
You have asserted that NYS Courts have no authority to interpret NYS law.
No. I have not.
Then on what possible grounds could you call the court's decision "bogus"? If the court has the authority to interpret the law and they do so then their interpretation, by definition, is not bogus.
5.30.2008 1:43pm
Chris Bell (mail) (www):
We don't have an opinion from the Court of Appeals on that, and Patterson's action has nothing to do with that.
No, Pender has it exactly right. This is what I am telling you.

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.
5.30.2008 1:44pm
D Palmer (mail):
The problem with having voters vote for/against SSM is that it is an issue that a very small percentage have any real opinion on.

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.
5.30.2008 1:44pm
This decision harms true equality (mail):
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?

No. I am saying that your first cousins hypothetical is irrelevant to our discussion.
5.30.2008 1:44pm
This decision harms true equality (mail):
If the court has the authority to interpret the law and they do so then their interpretation, by definition, is not bogus.

Let's say that the Supreme Court of the United States decides that the President has no power to pardon anyone.
5.30.2008 1:47pm
Pender:

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.

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.
5.30.2008 1:47pm
Oren:
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.
FWIW, at the beginning of this gay-marriage news cycle, I decided that I was going to assume utmost good faith on the part of all gay marriage opponents. I have never called them bigots (and I think those supports of SSM that do are misguided) nor have I ever asserted they do so out of hate.

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.
5.30.2008 1:48pm
Pender:

No. I am saying that your first cousins hypothetical is irrelevant to our discussion.

Ah. Those of us who are familiar with the law call this "fighting the hypothetical."
5.30.2008 1:48pm
Chris Bell (mail) (www):
TDHTE: I am saying (and the NY courts unanimously agree, by the way) that the cousins hypothetical destroys your argument. If that is your definition of "irrelevant" then more power to you.

-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.
5.30.2008 1:50pm
Oren:
If the court has the authority to interpret the law and they do so then their interpretation, by definition, is not bogus.
Let's say that the Supreme Court of the United States decides that the President has no power to pardon anyone.
They would be incorrect. I would disagree. But they certainly would not be bogus:

bo·gus
–adjective
1. not genuine; counterfeit; spurious; sham.
5.30.2008 1:51pm
This decision harms true equality (mail):

All the parties to these cases now acknowledge,
implicitly or explicitly, that the Domestic Relations Law limits
marriage to opposite-sex couples. Some amici, however, suggest
that the statute can be read to permit same-sex marriage, thus
mooting the constitutional issues. We find this suggestion
untenable.
Articles 2 and 3 of the Domestic Relations Law, which
govern marriage, nowhere say in so many words that only people of
different sexes may marry each other, but that was the universal
understanding when Articles 2 and 3 were adopted in 1909, an
understanding reflected in several statutes. Domestic Relations
Law § 12 provides that "the parties must solemnly declare . . .
that they take each other as husband and wife." Domestic
- 3 -
Relations Law § 15 (a) requires town and city clerks to obtain
specified information from "the groom" and "the bride." Domestic
Relations Law § 5 prohibits certain marriages as incestuous,
specifying opposite-sex combinations (brother and sister, uncle
and niece, aunt and nephew), but not same-sex combinations.
Domestic Relations Law § 50 says that the property of "a married
woman . . . shall not be subject to her husband's control."
New York's statutory law clearly limits marriage to
opposite-sex couples.




Patterson is trying to overturn this unilaterally.
5.30.2008 1:51pm
NI:

Let's say that the Supreme Court of the United States decides that the President has no power to pardon anyone.


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.
5.30.2008 1:52pm
This decision harms true equality (mail):

If the court has the authority to interpret the law and they do so then their interpretation, by definition, is not bogus.

Let's say that the Supreme Court of the United States decides that the President has no power to pardon anyone.
They would be incorrect. I would disagree. But they certainly would not be bogus:

bo·gus
–adjective
1. not genuine; counterfeit; spurious; sham.




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.
5.30.2008 1:54pm
This decision harms true equality (mail):
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, it would not be the law. The Constitution is the fundamental law and the pardon power is right there in the Constitution.
5.30.2008 1:55pm
Chris Bell (mail) (www):
Patterson is not trying to overturn that passage you quoted. That passage is still good law. It corresponds to the second and third line in the "logical pattern" I just set up for you.

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.
5.30.2008 1:55pm
This decision harms true equality (mail):
It corresponds to the second and third line in the "logical pattern" I just set up for you.

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."
5.30.2008 1:57pm
Pender:

"the parties must solemnly declare . . . that they take each other as husband and wife."

Right; so same-sex couples can't get married in New York.


Relations Law § 15 (a) requires town and city clerks to obtain specified information from "the groom" and "the bride."

Right; so same-sex couples can't get married in New York.

Relations Law § 15 (a) requires town and city clerks to obtain specified information from "the groom" and "the bride."

Right; so same-sex couples can't get married in New York.

Domestic
Relations Law § 5 prohibits certain marriages as incestuous, specifying opposite-sex combinations (brother and sister, uncle and niece, aunt and nephew), but not same-sex combinations.

Right; so same-sex couples can't get married in New York.

Domestic Relations Law § 50 says that the property of "a married woman . . . shall not be subject to her husband's control."

Right; so same-sex couples can't get married in New York.

New York's statutory law clearly limits marriage to opposite-sex couples.

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.
5.30.2008 1:57pm
Oren:
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 wonder you have trouble understanding the basics of constitutional law. You can't even reckon how a court with authority to interpret a statute has more legitimacy than a random person on the internet.

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.
5.30.2008 1:57pm
hawkins:
Please remind me again why it matters to anyone what other people call their relationship? Gay marriage, civil union - I see no reason for myself or anyone else to care, as long as everyone has access to the same underlying rights.
5.30.2008 1:57pm
Chris Bell (mail) (www):
How about you be a little more specific when pointing out what is wrong with it? (Maybe you are confusing me for someone else, I am talking about my 12:50 comment.)

After all, what I wrote is black letter law. Pick up a copy of the Restatement of Conflict of Laws.
5.30.2008 1:59pm
Pender:

I see no reason for myself or anyone else to care

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.
5.30.2008 2:01pm
Oren:
No, it would not be the law. The Constitution is the fundamental law and the pardon power is right there in the Constitution.
More proof that you don't understand the concept of "law". Don't worry, you'll get it eventually.

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.
5.30.2008 2:03pm
This decision harms true equality (mail):
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?

Not only does Pender lack a respect for the rule of law. He's also a racist.
5.30.2008 2:04pm
Chris Bell (mail) (www):
...and the sun rises and he turns to stone....

I'm done. Goodnight everybody!
5.30.2008 2:08pm
K. Dackson (mail):

Dackson, sorry but I don't buy the "oppressed hetero" storyline. I'm straight and allowing gays to marry neither picks my pocket nor breaks my leg nor violates any of my rights under the US or NY Constitution.


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.
5.30.2008 2:09pm
This decision harms true equality (mail):

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, it would not be the law. The Constitution is the fundamental law and the pardon power is right there in the Constitution.

More proof that you don't understand the concept of "law". Don't worry, you'll get it eventually. ... 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.





"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.
5.30.2008 2:12pm
DangerMouse:
This:

-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.
5.30.2008 2:14pm
This decision harms true equality (mail):
After all, what I wrote is black letter law.

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.
5.30.2008 2:15pm
Pender:

Not only does Pender lack a respect for the rule of law. He's also a racist.

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.
5.30.2008 2:15pm
hawkins:

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.



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.

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?


This is an incredibly weak argument.
5.30.2008 2:16pm
This decision harms true equality (mail):
A fair reading of ANY marriage law MUST presume that the authors limited it to unions of men and women

Yes. And the New York Court of Appeals explicitly held this when it directly decided the gay marriage question.
5.30.2008 2:17pm
Pender:

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.

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.
5.30.2008 2:17pm
This decision harms true equality (mail):
The entire point of my post was that all decent people should care strongly about opposing such a racist classification.

That was not evident from the racist language in your racist comment.
5.30.2008 2:18pm
This decision harms true equality (mail):
There is no statutory or constitutional support for the notion that individual states can determine whether cousins can marry but not same-sex couples.

Totally irrelevant.
5.30.2008 2:18pm
hawkins:
Fixed comment...


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.


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.


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?


this is an incredibly weak argument.
5.30.2008 2:19pm
DangerMouse:
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.

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.
5.30.2008 2:20pm
hawkins:

The entire point of my post was that all decent people should care strongly about opposing such a racist classification.

That was not evident from the racist language in your racist comment.


Ridiculous - I dont believe anything in the comment could be taken as racist
5.30.2008 2:20pm
Nathan_M (mail):
It's amazing how no one is making any substantive objections to Gov. Paterson's decision. I think Bill O'Reilly, of all people, is right. If the best argument opponents can publically make is that the governor of a state shouldn't interpret the state's laws for executive agencies, then they're in trouble.

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.
5.30.2008 2:20pm
nutbump (mail):

Pender:Wouldn't you care if black couples were allowed to enter only into "Negro Mating Pairs

Very weak argument. Blacks heterosexual couples qualify for marriage homosexual don't, because homosexual couples can't procreate.
5.30.2008 2:20pm
fishbane (mail):

No. I am saying that your first cousins hypothetical is irrelevant to our discussion.



Actually, I think you are saying that you're backed in to a corner, and want to change the subject.
5.30.2008 2:21pm
This decision harms true equality (mail):
It's amazing how no one is making any substantive objections to Gov. Paterson's decision.

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.
5.30.2008 2:24pm
D Palmer (mail):

Fair enough. I gather you support incestous marriages.


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.
5.30.2008 2:24pm
Pender:

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.


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.
5.30.2008 2:25pm
Jon Rowe (mail) (www):
But since gays have a lower life expectency due to their personal practices, those practices tend to increase my health insurance rates.

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.
5.30.2008 2:25pm
This decision harms true equality (mail):
Actually, I think you are saying that you're backed in to a corner, and want to change the subject.

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.
5.30.2008 2:26pm
Pender:

Blacks heterosexual couples qualify for marriage homosexual don't, because homosexual couples can't procreate.

So I assume you're opposed to geriatric marriage, too, since old people can't procreate?
5.30.2008 2:27pm
nutbump (mail):

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

People were responding by not electing democrates, as long as they could. People will countinue to fight for the agains fascism.
5.30.2008 2:27pm
This decision harms true equality (mail):
Do you really think this whole thing would be such a political issue if no gay people wanted to get married?

Which only highlights how novel this political -- not necessarily legal -- issue is.
5.30.2008 2:27pm
Chris Bell (mail) (www):
DangerMouse:

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.
5.30.2008 2:28pm
Adam J:
This decision harms true equality- You know what's also in the Constitution? The full faith and credit clause, which requires states to give faith to the public acts of other states. Also, for legislative inaction, how about NY's decision not to create a law that specifically reject same-sex marriages that recognized in other jurisdictions... even when 39 other states have done so in recent years! And as for the authority of Hernandez v Robles, it rejected a gay-marriage claim but there is not a word of authority in the case that the Court rejects that the doctrine of comity applies to out of state gay marriages. Therefore, it clearly isn't decisive authority that prevents Patterson from his actions. Don't you fret though, I am certain that in a year or so, those against gay marriage will be at the Court of Appeals to make their case.

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?
5.30.2008 2:29pm
This decision harms true equality (mail):
Support? I neither support nor oppose [incestuous marriage]. As I stated, as long as they are mentally competent adults, it is their call. The same goes for plural marriage or interracial marriage.

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.
5.30.2008 2:30pm
nutbump (mail):

"Pender: So I assume you're opposed to geriatric marriage, too, since old people can't procreate?"

In geriatric marriage heterosexual couples still have a right to procreate. In homosexual marriage couples have no right to procreate bicause it is illegal.
Or you are trying to say that gay marriage makes cloning legal.
5.30.2008 2:32pm
This decision harms true equality (mail):
Therefore, it clearly isn't decisive authority that prevents Patterson from his actions.

There is no clearly decisive authority that mandates his actions or upon which is actions rest, either. My point about Robles is that the Court of Appeals offered a definitive construction of New York's Domestic Relations law with regard to "spouses" and "husbands" and "wives" and Patterson is ordering state agencies to contravene that. That is unlawful.
5.30.2008 2:32pm
Pender:

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.

This isn't a terribly useful form of argument. I say marriage is a union of two consenting, loving adults. You say it's a man and a woman. Your ancestors said it was a man and a woman of the same race. Their ancestors said it was a means of uniting two families and providing social welfare for women because they were generally unable to earn a living on their own. THEIR ancestors saw it as a way for the beta male to ensure that the child was his own and therefore worth caring for in an environment of scarce resources. Et cetera. Eventually we get back to amoebas and the discovery of sexual reproduction as a way to mix genes around. Marriage has not been unchanging throughout the ages, and any of these groups could have objected just as strenuously as you that the next group was trying to redefine an ancient institution.
5.30.2008 2:34pm
This decision harms true equality (mail):
Marriage has not been unchanging throughout the ages, and any of these groups could have objected just as strenuously as you that the next group was trying to redefine an ancient institution.

What does that have to do with Governor's Patterson's unlawful partisanship?
5.30.2008 2:35pm
hawkins:

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.


Perhaps I do appreciate the concern because I am neither gay nor do I care much for labels or any legally recognized marriage, but to me it seems to be semantics.
5.30.2008 2:36pm
Pender:

In geriatric marriage heterosexual couples still have a right to procreate. In homosexual marriage couples have no right to procreate bicause it is illegal.
Or you are trying to say that gay marriage makes cloning legal.

Geriatric means old -- in this case, too old to procreate. So old couples would have the same or fewer opportunities available to procreate as same-sex couples.
5.30.2008 2:40pm
Randy R. (mail):
Dackson: "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."

thanks! Your last statement shows that it really isn't about health care benefits or taxes. As a card carrying member of the homo-mafia AND the homofascists, I can proudly state that you are just a, well, people get upset when they are told the truth. But as a Christian, I MUST tell you the truth because I in fact love you. So I lovingly call you a bigoted jerk so that you will turn and see the light someday. I do this only for your own good, because I love you.

But I know where you are coming from: Oh, yes, all gay men are diseased and die young, and we get just what we deserve for doing something so discusting as giving blow jobs. Hey, isn't that your wife's job?

Oh well, maybe that's why so many hetero men seek out gays on Criag's List, because they know we give much better head than most women. But of course, you are disgusted by all that, right?
5.30.2008 2:42pm
D Palmer (mail):
Marriage long ago morphed from the religious based practice that it started out as.

My wife and I were married via civil service. Why is that a marriage and not a 'civil union'?

Language is ever evolving and the term marriage has evolved into a formal, legally sanctioned pairing of two prople which entitles them to certain rights withheld from those who have not chosen to seek legal recognition of their relationship. The previous religious connotations should not prevent us from applying the term to same sex unions today.
5.30.2008 2:44pm
Pender:

Perhaps I do [not] appreciate the concern because I am neither gay nor do I care much for labels or any legally recognized marriage, but to me it seems to be semantics.

It is semantics. Semantics can be important.

Look at it this way: forcing black people to sit at the back of the bus was wrong, as I hope you'll agree. But people at the back of the bus get to the same destination at the same time as people in the front of the bus. In this sense, the problem was equivalent. Substantive equality is the most important thing, but nominal equality is also important.
5.30.2008 2:44pm
nutbump (mail):

Pender: Geriatric means old -- in this case, too old to procreate. So old couples would have the same or fewer opportunities available to procreate as same-sex couples.

However old couples have a right to procreate, i.e. They can be engaged in procreation process no matter how old they are.
For homosexual couples procreation process inclues cloning and it is illegal in U.S.
So it looks like judges clearly had overstepped their authority making cloning permissible in California.
5.30.2008 2:45pm
Adam J:
This decision harms true equality - The doctrine of comity is independent of New York's Domestic Relations law. You are familiar with comity aren't you? It means even though one State might not agree with the other state, they will recognize the validity and effect of their executive, legislative, and judicial acts. Here, the Court of Appeals made quite clear that NY doesn't agree with the act, but did not say they wouldn't give comity to the other state's act, so the Court of Appeals didn't rule on comity.
5.30.2008 2:45pm
Pender:

Marriage long ago morphed from the religious based practice that it started out as.

It did not start out as a religious based practice. It started out as a way for the beta male to ensure that the child was actually his, and therefore worth providing for.
5.30.2008 2:46pm
Pender:

the principle you believe undergirds a right to gay marriage necessarily leads to polygamy and incestuous marriage.

We already had this discussion on this site, and no it doesn't, at least not until the scientific consensus establishes that there are some people who are incapable of having a happy marriage unless they are permitted to marry a relative. Gayness is immutable; incestuousness is not.
5.30.2008 2:49pm
Pender:

What does that have to do with Governor's Patterson's unlawful partisanship?

Out of context, nothing. In context, everything. Trace the discussion upwards if you're interested, and if you're unable to understand the relevance, it's probably beyond your intellect anyway.
5.30.2008 2:51pm
Randy R. (mail):
Now that SSM is really gaining momentum (Heck even a reader's poll in UTAH showed support for SSM by a wide margin!), the gloves are really coming off from the anti-gay side. They are showing their true colors.

First, we all see that it isnt' about marriage at all. It's all about bigotry towards gays. Some of the more honest commentators here have even admitted that when you get to know gays, hatred towards them goes out the window. Paterson had a gay uncle who lived with another man, and that taught him that love comes in many colors. Isn't that horrible!

Eliot Spitzer ran a campaign for governor and specifically mentioned as part of his platform that SSM in NY was going to be one of the first things he would work on. Therefore, anyone who claims that the people had no voice in this matter are mistaken. If it was such a big issue, they could have voted for the Republican candidate. But they didn't, and they knew what they were getting. Paterson shared that agenda, and again, everyone knew that. If you didn't, too bad for you, because it was in the news enough.

So now the anti-gay side complains of the tryanny of the majority! Just a few months ago, it was the tryanny of the minority. So which rules? Then it was the tyranny of the courts -- the black robed elitists. Now, it's the tryanny of a democratically elected executive. So which is it?

Even more bizarre, the governmor is accused of "unlawful partisanship!" Now this really takes the cake.

So basically, any decision, whether by judges, elected officials or people bureaucrats just doing their jobs, is bad if it's in favor of gays. And yet WE are the ones accused of using any means to advance our agendas!

Cornellian is right: Once the CA initiative fails, the anti-gay crowd will crow that the vote was 'stolen' and that they rights of the minority should be protected no matter what. We can see that coming.

And if THAT argument fails, you can always claim that gays are disgusting and immoral. Because that always trumps everything.
5.30.2008 2:52pm
nutbump (mail):

Pender:Gayness is immutable

As well as pedophilia. Immutability is not an excuse.
5.30.2008 2:52pm
Oren:

The doctrine of comity is independent of New York's Domestic Relations law.

The doctrine of comity is independent of New York's Domestic Relations law.

The doctrine of comity is independent of New York's Domestic Relations law.



Maybe if I bold it and repeat it three times someone will actually read it.
5.30.2008 2:54pm
This decision harms true equality (mail):
but did not say they wouldn't give comity to the other state's act, so the Court of Appeals didn't rule on comity.

I did not write that "the Court of Appeals took up Robles to decide the comity issue," and I already discussed my quibbles with the comity issues above in a dialogue with others.
5.30.2008 2:54pm
Oren:
Randy, I assure you that assuming absolute good faith (even in the face of evidence to the contrary) will get you a lot further on this site than you last post.

You are starting to lose me and I'm as solid an SSM supporter as there is.
5.30.2008 2:55pm
This decision harms true equality (mail):
Out of context, nothing. In context, everything.

Wow. Playing with context. Kind of like how marriage statutes written in 1909 and expressly limited to opposite-sex couples encompass non-existent, non-contemplated gay marriages.
5.30.2008 2:56pm
Randy R. (mail):
Nutbump: "They can be engaged in procreation process no matter how old they are."

And please show me where ability to procreate is a precondition of getting married in any state.

A hetero couple can get married and never once have sex, and the marriage is still valid, correct?
5.30.2008 2:58pm
This decision harms true equality (mail):
Oren,

Exactly. This is a civil discussion that should remain that way. How an accusation of "unlawful partisanship" is proof of bigotry is beyond me. As I have stated many times on other threads, there are many proper means I can envision to reach this goal. I am simply disappointed when lawyers refuse to value the opinions of their fellow citizens, abuse the legal process, and clothe their usurpation in Orwellian rhetoric.
5.30.2008 3:00pm
Jeff R.:
Oren: allowing Gay marriage is, in a large number of cases, a fairly massive tax break for a bunch of moderately wealthy people. (There are some income numbers for which marriage is a penalty, but far more for which it's a major discount.) So, to the extent that governments are going to have to raise money or carry extra debt to make up the lost income, it is 'picking your pocket'.

Not that that's a strong argument against the policy, but still...
5.30.2008 3:07pm
Nathan_M (mail):

I made more than a few [substantive arguments]. 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.

Those are all procedural arguments; you're objecting to how the decision was made. A substantive argument would relate to the merits of the decision. Saying to the lower house of the legislature "I know you guys support same sex marriage, but the governor's decision to recognize it was partisan, so you should reverse him" is not a winning argument.
5.30.2008 3:07pm
DangerMouse:
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.

Chris Bell,

You don't know where I get it from? Do you have any idea why marriage, as an institution, exists? Do you know that it pre-dates the formation of states and constitutions? I understand that probably few of you will be convinced by any of these arguments I make, especially since most here are lawyers with egos the size of Alaska and don't care for means, only ends, when dealing with our political preferences. Still, we'll be talking past each other of NONE of you has any clue as to the purpose, the social and civilizational purpose, behind marriage.

Marriage, basically, serves 2 functions: It is a system designed to ensure the protection of CHILDREN, by providing them with a MOTHER and a FATHER who act in concert to raise the child. It is also a system to provide civilizational tranquility by assuring men that their wives will be considered "off limits" to other men, and assuring women that men will continue to provide for them during pregnancy and raising of children.

None of that has anything to do, whatsoever, with homosexual couples. None of it. Homosexual couples have nothing to do with raising children, and ensuring domestic tranquility between the sexes.

Now, as to "how could a court judicially apply it"? If courts haven't lost all their reason to the dictatorship of relativism, then they should be able to understand that there are two sexes: male and female, and that the union applies to a union of those two sexes.

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.

Let's be honest here: few citizens in several states think homosexual "marriages" or marriages. The judges and the elite do. The citizens are content to let homosexuals have benefits with each other. Very few are willing to call those relationships "marriages". Besides, even if many people did think them as such, it would only signify to me that society is about to collapse, as the civilization would be committing suicide by destroying the institution founded to protect its children and ensure the next generation. In such a case, I'd expect a strong counter-reaction, like Islam, to come into the picture. I see that happening in Britian right now.

Maybe bestiality would be recognized in NY if Oregon started recognizing it!

Again, see the "civilizational suicide" above.

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.

You seem to have this fascination with courts and elites and laws. Understandable on a legal blog. But marriage pre-dates all of that. This is more about the building blocks of society and civilization. If the courts are willing to destroy that, then they can. Many cultures collapsed in their own hedonistic excesses. I expect that either America will, or will be subject to the counter-reaction of Islam or fundamentalist Christianity.

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.

I don't understand your point at all, and you seem to be under the delusion that the NY Courts said gay marriage in NY is ok when in fact they did no such thing and said the exact opposite. It's only "marriage" in California because a bunch of deluded judges said so.

My point is this: the laws of marriage can be different from what marriage actually IS. Marriage is, and only will be, a union of a man and a woman, no matter what the law calls it. The link between what marriage IS and what the law calls it is important for 2 reasons: First, it means that any legal definition of marraige in the law written decades ago must fairly be read to be the union of a man and a woman, because when such laws were written the people writing them weren't radical enough to think they would invite homosexual unions into it. Secondly, if the definition of the law is changed by any Power Process to invite homosexual unions into them, that would not change the reality of marriage but could undercut the cultural protections designed for marriage, which would then lead that civilization down to self-suicide. See Europe for that.
5.30.2008 3:10pm
genob:
The oft repeated idea that permitting/recognizing/redefining/whatever marriage to include same-sex unions as having no impact on heterosexual marriages is simply false. The economic implications are obvious.

Expanding marriage means that on the margin, corporations, governments, etc. will be less likely and able to extend benefits to married couples. Simple economics. In some instances, benefits will be reduced, in others, taxes or prices will rise or profits will fall in order to maintain the same level of benefits to married couples. While it's possible that the number of potential gay couples is so small as to make this problem small or in the minds of many justified, don't pretend that there is no impact.

But that's where you hit the slippery slope that largely hasn't been discussed here. Making marriage permissible between any two consenting adults means that as a practical matter, it will likely degrade into a mere financial arrangement between two adults, and lose it's traditional meaning and importance to society. Sure, some may say it needs to be between two "loving" persons...good luck on maintaining that distinction when $$ are at stake.

Imagine two elderly women friends, not lesbians, one of which has retirement health care benefits. Get married and bingo, her friend has health insurance. (you can argue that's great, but don't pretend there isn't a cost) Imagine two straight young men, roommates, but not gay. One has a great job at a company that provides benefits, the other, barely employed. Get married and bingo, health insurance and other benefits for this guy's buddy... And why can't I marry my brother to get him health insurance?

With form prenups (available soon at your local legal aid office or on legal zoom.com) and no contest divorces, I can't fathom why these marriages of convenience won't sprout up everywhere. The cost could be huge and will inevitably lead to reduced benefits for heterosexual married couples.

You could argue that these kinds of things happen already between opposite sex couples. (marriages in order to obtain green cards, e.g.)...but they don't really happen very often preciesly because marriage still means something in our society, and because men and women do relate to one another differently than two men or two women. It could happen more, but it just doesn't....I think that will change dramatically and is the slippery slope here as marriage is redefined to be a "right" for any two adults.
5.30.2008 3:10pm
Adam J:
This decision harms true equality- You have yet to discuss your "quibbles" with comity actually, this is the first time you've mentioned the word. Comity means a state will give another state's action's force, even when it contradicts the state's own law. This doctrine has been frequently applied to marriages that NY doesn't recognize, so its far from outlandish for it to apply in this context. The Court ruled that NY law prevents gay marriage, not that comity should be given to out of state gay marriages! No matter how much you "quibble", this is immutable fact.

"Kind of like how marriage statutes written in 1909 and expressly limited to opposite-sex couples encompass non-existent, non-contemplated gay marriages."

Yes, that statute doesn't allow gay marriage, however I see that I have to say it again;
The doctrine of comity is independent of New York's Domestic Relations law.
5.30.2008 3:13pm
This decision harms true equality (mail):
<>Those are all procedural arguments; you're objecting to how the decision was made. A substantive argument would relate to the merits of the decision.

No. You are abusing the word procedure -- I am not referring to the size of paper for court filings. Administrative law is "procedural" but it is constitutional law. There is no legal substance to Patterson's act, because it is purely political. It is unlawful partisanship. Unlawful partisanship can take many forms. One example is a separation of powers violation. In New York, I imagine a state agency that was annoyed by the directive could file an Article 78 action.
5.30.2008 3:15pm
Adam J:
Genob- "Expanding marriage means that on the margin, corporations, governments, etc. will be less likely and able to extend benefits to married couples. Simple economics." So, you're argument for preventing gay marriage isn't based on morals, but on desiring to limit the beneficiaries of marriage for heterosexual benefit(i.e. greed). The same argument could be used for interracial marriages too you know. I get the morality argument, I don't agree with it, but it's a legitimate argument. The argument for denying people the right to get married based on economics is just disgusting however.
5.30.2008 3:16pm
This decision harms true equality (mail):
You have yet to discuss your "quibbles" with comity actually, this is the first time you've mentioned the word.

Please scroll up to the discussion of plain language construction (no, I did not mention the word comity there). I also argued with Chris Bell, I believe, at length, on the substance of the Appellate Division decision when it was handed down in a thread on Volokh posted by Prof. Carpenter. I understand the concept of comity; I do not find your arguments persuasive in this case. Generally valid arguments are not applicable or sound in all cases. My disagreement with you is not proof of my ignorance of the law.
5.30.2008 3:20pm
nutbump (mail):

Randy R. And please show me where ability to procreate is a precondition of getting married in any state.

There is no such precondition, why do you mention that. I am not talking about preconditions, it is about human rights.
Married couple has a right to procreate as a part of the marriage. If samesex-marriage equal to oppositesex marriage participants have an equal right to procreate.
For opposite-sex couples process of procreation means sex (right for sex), for same-sex couples a process of procreation means cloning.
So, I guess cloning is legal in California.




Randy R.A hetero couple can get married and never once have sex, and the marriage is still valid, correct?

Absolutely incorrect, absence of sex is a reason to declare marriage void.
E.g. If you marry a foreigner and try live without sex with a foreign spouse, he/she will be deported and marriage gets annulled.
5.30.2008 3:21pm
DangerMouse:
The argument for denying people the right to get married based on economics is just disgusting however.

Genob's point is that cultural protections that promote marriage (the union of a man and a woman, to help them raise a family) will wither and die in the onslaught of the farsical marriages of convenience or for pure economics. Cultures protect families in many ways, much of it economic. If those protections are removed, families will suffer. This stuff matters because in the aggregate these individual choices about whether to enter into a self-sacrificing relationship and start a family and have kids can have a large, large impact on the future of a civilization. Europe is aborting itself into oblivion, for instance, and is now faced with the cultural imperialism of its discontented immigrants. Do we want that to happen here? Do we get a choice in the matter, or do the judges get to tell us if our culture survives?
5.30.2008 3:21pm
hawkins:

This stuff matters because in the aggregate these individual choices about whether to enter into a self-sacrificing relationship and start a family and have kids can have a large, large impact on the future of a civilization.


Im not sure how "self-sacrificing" raising a family is. It seems many people have largely selfish reasons. I do not buy the argument that we need to provide incentives. The majority of the population has a deeply ingrained desire to raise a family, and does not need to provide further incentives to do so.
5.30.2008 3:34pm
Oren:
How an accusation of "unlawful partisanship" is proof of bigotry is beyond me.
It is proof of a general misunderstanding of the purpose of government which is to put in place the partisan preferences of those that get elected.
5.30.2008 3:37pm
Pender:

With form prenups (available soon at your local legal aid office or on legal zoom.com) and no contest divorces, I can't fathom why these marriages of convenience won't sprout up everywhere. The cost could be huge and will inevitably lead to reduced benefits for heterosexual married couples.

Yeah, okay. Massachusetts has had gay marriage for five years now. Please show me some evidence that this has become a problem there.
5.30.2008 3:40pm
FantasiaWHT:
I would like to talk about another kind of SSM - Simultaneous Swinging Marriage. Kids everywhere recognize the legal principle that if the person next to you on a swingset is swinging at the same rate and height as you are, you are married to this person.

This is even true for two children of the same gender! Somebody who notices that two boys are swinging simultaneously may shout out "Hey, you're married!" However, this often results in one child flinging themselves off the swing, or drastically changing their pumping pattern, and experts are still undecided as to whether the marriage so created is valid only as long as the swinging stays simultaneous or whether it is good in perpetuity, or at least until either spouse swings simultaneously with another.

SSM organizations across the country are lobbying their state governments for recognition and equal rights with other married couples. "I married this boy named Joey a week ago," says 8-year old Jenny Thorson, "but I saw him swinging with Amber yesterday, so he's married to her now. When my mommy divorced my daddy, she got some of his stuff, so I want Joey's stuff. He has a Wii, so I think I'll take that."

Recognition by even one state of simultaneous swinging marriages would force states across the country to recognize as valid such marriages performed in that state, unless an exception is written into their out-of-state-marriage-recognition laws. When asked whether he would support legislation refusing to recognize such marriages, an anonymous Wisconsin state senator stated "I oppose any and all recognition of SSM's. Wisconsin doesn't need that kind of corrupt moral bankruptcty!"

The success of the SSM drive has led to similar groups lobbying for recognition of, among other types of marriage, "NCIT" (Names Carved Into a Tree) and "SS-2"(Sharing StrawS) marriages.
5.30.2008 3:40pm
genob:

So, you're argument for preventing gay marriage isn't based on morals, but on desiring to limit the beneficiaries of marriage for heterosexual benefit(i.e. greed).


Not greed....the legitimate interest of society in differentiating and promoting a marriage between a man and a woman above or differently than other relationships between two adults.
5.30.2008 3:40pm
Adam J:
"Please scroll up to the discussion of plain language construction (no, I did not mention the word comity there)." Your plain language argument regarding NY Domestic Relations Law? As I said, comity involves whether or not to give credit to California or Massachusetts same sex marriage law in NY, not what NY Domestic Relations Law allows it. Comity means a out-of-state marriage that is illegal under NY law will still receive full faith and credit. It's a fact that Hernandez didn't involve this.

And I love this statement "I understand the concept of comity; I do not find your arguments persuasive in this case." That's a rock solid explanation of why comity is not an independent issue; "you don't find it persuasive." Here's a tip though; the only way what you find persuasive has any authority is by becoming a judge, Paterson isn't bound to follow what arguments you find persuasive... and even Judges like to write an opinion of why something is not persuasive.
5.30.2008 3:40pm
Oren:
Kind of like how marriage statutes written in 1909 and expressly limited to opposite-sex couples encompass non-existent, non-contemplated gay marriages.
Well, the legislature in 1909 was stupid (in your opinion) for writing the statute as an using an "all but" syntax instead of a "only thus" syntax. Had they written the statute along the lines of

NYS will only recognize out of state marriages that conform to our Domestic Law except in cases where Domestic Law would prohibit same because of:
(1) Age of marriage
(2) Procedures and record-keeping statues
(3) Solemnization by a party that would not be approved by our DL
. . .

then you would be absolutely correct. Until then, you have to live with the fact that the legislature was dumb enough (apparently) to write it "all but" instead of that way.
5.30.2008 3:42pm
genob:
And DangerMouse did a good job of clarifying my point.
5.30.2008 3:42pm
Oren:
the legitimate interest of society in differentiating and promoting a marriage between a man and a woman above or differently than other relationships between two adults.
That interest is in the eye of legislature, which has chosen to exclude SSM from domestic law but not to pass a DOMA forbidding the recognition of out-of-state SSM.
5.30.2008 3:45pm
Oren:
Fantasia - I'm pretty sure every state requires knowing consent to enter into a marriage license, which itself is a formal act that requires either a clerk or a notary. Correct me if I'm wrong though.
5.30.2008 3:47pm
Oren:
Yeah, okay. Massachusetts has had gay marriage for five years now. Please show me some evidence that this has become a problem there.
Haven't you heard? Our divorce rate in MA is the lowest in the nation! Dear me they're destroying the heterosexual culture of rampant divorce!
5.30.2008 3:48pm
Kazinski:
This certainly validates those states that have a constitutional amendment banning gay marriage. The argument against those amendments went something like this: 'It is anti-democratic because it prevents the the legislature from voting in gay marriage using the standard process for making laws'. But the proponents argued that it was necessary in order to keep the courts and executives (see Gavin Newsome) from making an end run around the democratic process.

New York has a statute barring same-sex marriage, so much for the democratic process.

There are 25 states with a constitutional amendment barring same sex marriage, that don't have to worry about the democratic process being short-circuited anymore, this is just going to encourage those other states with majorities that oppose gay marriage to enact their own constitutional amendments. California may be next, its likely going to be a tossup. Ironically if Obama can mobilize a high voter turnout in November among Blacks and Hispanics, it may be enough to drive the anti-gay marriage amendment to victory.
5.30.2008 3:49pm
Adam J:
Kazinski- New York doesn't have a statute barring same sex marriage... New York's marriage statute doesn't recognize same sex marriage, that's not the same thing as s statute barring comity to another state's same sex marriage. New York typically grants comity to marriages that its own statute doesn't allow, this is a policy that has been in effect for over a century.
5.30.2008 3:53pm
Poppler:
genob-

That is the most insightful (and terrifying) comment I've read in a very long time.
5.30.2008 3:55pm
genob:
Oren,

I agree with you. My comments weren't meant to imply any viewpoint one way or the other on the NY situation. I actually think the governor is doing the legally prudent thing and avoiding losing lawsuits. It's up to the NY legislature to fix it if they want to. (or at least should be up to the NY legislature).
5.30.2008 3:59pm
craig (mail):
"Im not sure how "self-sacrificing" raising a family is."

You don't have children, I expect.
5.30.2008 4:04pm
Kazinski:
Adam J:
My source was this map in Wikipedia. You leave me three unenviable choices, 1) trust the anonymous wiki-ites, 2) trust an anonymous Volokh commentator, 3) do further research.

Happily, my larger point still stands whether or not New Yorks statute bars gay marriage, or merely doesn't allow it to be performed in New York.
5.30.2008 4:05pm
hawkins:

"Im not sure how "self-sacrificing" raising a family is."

You don't have children, I expect.


I do not, but I mean the act of reproducing, rather than raising kids.
5.30.2008 4:12pm
Adam J:
"Not greed....the legitimate interest of society in differentiating and promoting a marriage between a man and a woman above or differently than other relationships between two adults." Marriage must be pretty grim for you if the only way you can benefit from it is from differentiating it from gay marriage and promoting it economically. Silly me, I thought the reason we enjoyed marriage is because we loved our spouse. And my marriage to my wife is already differentiated from any other marriage.
5.30.2008 4:12pm
Adam J:
Kazinski- You're right, I don't envy your dilemma, especially since the right answer is so clearly 3, the most onerous... cool map though. Also, an amendment isn't necessary (or feasible in the rather liberal state of NY), the NY legislature could have made (and still can for that matter) a law that would have clearly prevented Patterson's action. Anyways, a court or the next Governor can deny comity on "public policy" grounds, so the right to have a same-sex marriage in New York recognized is hardly secure.
5.30.2008 4:23pm
This decision harms true equality (mail):

It is proof of a general misunderstanding of the purpose of government which is to put in place the partisan preferences of those that get elected.



Even under your definition of government, which I do not accept, you have described lawful partisanship. I decried unlawful partisanship, which encompasses ultra vires acts and separation-of-powers principles. We have administrative law to cabin unlawful partisanship -- note my reference to Artcle 78 actions in New York state -- and one example of a federal Constitutional provision that bars unlawful partisanship is the bill of attainder clause. You may be right that we have government, but my argument is that we have constitutional government in a constitutional democracy.


Here's a tip though; the only way what you find persuasive has any authority is by becoming a judge, Paterson isn't bound to follow what arguments you find persuasive... and even Judges like to write an opinion of why something is not persuasive.


Actually, all citizens have a say in a democracy, and a judge can issue an order that objectively violates the Constitution. The Constitution governs in that case. You might want to reflect on why your interlocutors call you a supporter of tyranny. I will say this: though I rarely agree with Professor Carpenter, at least his arguments are valid and lack arrogance.
5.30.2008 4:24pm
This decision harms true equality (mail):
Also, an amendment isn't necessary (or feasible in the rather liberal state of NY)

We don't know that. Now might be a good time to pass a constitutional amendment on initiative, recall, and referendum in New York.
5.30.2008 4:28pm
This decision harms true equality (mail):
New York typically grants comity to marriages that its own statute doesn't allow, this is a policy that has been in effect for over a century.

There has been no century-long policy with regard to gay marriages, which is the entire reason people disagree on the legal reasoning. You are begging the question.
5.30.2008 4:32pm
This decision harms true equality (mail):
Well, the legislature in 1909 was stupid (in your opinion) for writing the statute as an using an "all but" syntax instead of a "only thus" syntax.

No. The legislature was not stupid. It simply used the traditional (and actual) definition of marriage. You have a novel definition of marriage that you are attempting to read into marriage statutes that do not permit that interpretation, at least according to the Court of Appeals in New York. There is nothing wrong with your newfangled definition. But it is not the law.
5.30.2008 4:35pm
genob:
Adam J,

I think you miss the point. I didn't assert that differentiated (not always positively by the way) benefits are the only way to benefit from marriage. You are mixing up individual motivations and steps that a government or society can take to promote certain behaviors over others.
5.30.2008 4:36pm
Al Maviva:
You are familiar with comity aren't you? It means even though one State might not agree with the other state, they will recognize the validity and effect of their executive, legislative, and judicial acts.

Comity is also qualified by the caveat, "unless contrary to public policy." The Court of Appeals found that the NYS code describing marriage did not encompass SSM. Comity and conflict of laws principles do not get you past that barrier, unless you believe that the holding of the Court of Appeals two years ago, finding that gay marriage is not included within the statutory definition of marriage, missed something.

If the legislature's failure to exclude gay marriage means it must be recognized in New York based on comity principles, then so to should domestic relations law principles from other jurisdictions be recognized, such as oral divorce decrees executed by a member of the relationship, honor killing, or moderate beating - activities which are lawful features of the law governing marriage of one of the world's major religions and many of the states governed by that religion. Since those things are not expressly prohibited, should they not also be valid under the same reasoning of COMITY COMITY COMITY (as it was so brilliantly and subtly argued above?

One other question here. When did COMITY COMITY COMITY morph into a substantive law that must be obeyed, rather than a jurisprudential principle that kinda-sorta guides judicial determinations when it seems to make sense to use it? Last time I checked, it's damn hard to get a court to enforce a claim based on COMITY COMITY COMITY, roughly akin to getting a court to take action based on "the broad equitable powers of the court."
5.30.2008 4:37pm
Adam J:
This decision harms true equality - "Actually, all citizens have a say in a democracy, and a judge can issue an order that objectively violates the Constitution." Dude, you're only "say" is your vote and your access to the court, unless you are in government everything else has no authority, no power. That's not tyranny, that's our government. You can try and convince someone with authority through the power of your arguments, like a Judge, a Legislator, a Governor. But "I don't find it persuasive" isn't a very powerful argument, which is why I mocked you. Patterson doesn't have to listen to your opinion, and there's no clear authority that prevents him from doing what he's doing. People with your point of view will use the courts to try and change his ruling, but they won't succeed based on your argument, because there is no authority on comity to prevent him from doing so. They might succeed by saying that it is against public policy to grant comity, I hope otherwise, but you never know...

And you're right that a judge can violate the Constitution, but you still have to follow that order until a superior judge overrules it.
5.30.2008 4:37pm
Adam J:
Al Maviva "Comity is also qualified by the caveat, 'unless contrary to public policy.'" I never argued otherwise. However no court or legislature has ruled on the issue of comity here, therefore the Governor is within his rights to rule on it (unless NY has a different theory of separation of powers then the Fed under the Youngstown decision... I admit ignorance here).
5.30.2008 4:41pm
Chris Bell (mail) (www):
DangerMouse:

Marriage, basically, serves 2 functions: It is a system designed to ensure the protection of CHILDREN, by providing them with a MOTHER and a FATHER who act in concert to raise the child. It is also a system to provide civilizational tranquility by assuring men that their wives will be considered "off limits" to other men, and assuring women that men will continue to provide for them during pregnancy and raising of children.

None of that has anything to do, whatsoever, with homosexual couples. None of it. Homosexual couples have nothing to do with raising children, and ensuring domestic tranquility between the sexes.


Well, we've added a third: The commitment of two people who love each other. That has been the biggest change in marriage over the centuries. Marriage wasn't about love in the past; it was about raising a family or social status. Arranged marriages seem so repugnant to us because we now believe that love is a key element of marriage. Once you accept that, it becomes much harder to reject gay couples that love each other.

I don't believe that changing the law changes marriage. I believe that marriage has changed and the law is slowly recognizing that.

Next, you missed my point about other states recognizing same sex marriage. Under well-settled law, courts respect the policies of other states. They may disagree, but they still show respect. This policy helps knit the nation together. You can dismiss the policy in other states as the opinion of "elites" but it is the policy of those states and the tide is only going in one direction.

Besides, even if many people did think [same sex marriage] as [marriage], it would only signify to me that society is about to collapse, as the civilization would be committing suicide by destroying the institution founded to protect its children and ensure the next generation.


OK Nostradamus, you sound silly. You think that society will stop caring about children if gays get married? A century from now, historians will dig up shrill comments like this for humor.

My point is this: the laws of marriage can be different from what marriage actually IS. Marriage is, and only will be, a union of a man and a woman, no matter what the law calls it.


This is what I was referring to when asking 'where did you get that from?' This essence of marriage which can never change.

Human institutions evolve. Marriage doesn't mean what it used to anymore. You can claim that this new thingy is not real marriage, but that's just an assertion that doesn't add anything. Human institutions, like marriage, respond to the pressures we put on them. The desire to add "love" into the meaning of marriage has succeeded over the years and has now become one of the prominent justifications for getting married. Women want to "fall in love and get married." When marriage is about a commitment, it becomes much harder to justify the exclusion of gays.

You may not like the change. You can say that real marriage will always be the old thing, no matter what anyone says! I think you would do better if you asked why our conception of marriage is changing. Why do we place such a premium on love in marriage? Romeo &Juliet still touches us, but it was a bombshell when arranged marriages were still common.

We live longer and easier lives today. We also believe that women are independent moral beings with the right and ability to make their own choices. We focus on happiness as a goal.

Your version of marriage was crumbling before California courts ever appeared on the scene. It was crumbling when John Adams treated Abigail like an equal.

You're never going to win this fight without reversing all the things that have led up to it. Personally, I don't think it would be good to reverse those things.

This is life; enjoy the ride.
5.30.2008 4:45pm
Oren:
Comity is also qualified by the caveat, "unless contrary to public policy." The Court of Appeals found that the NYS code describing marriage did not encompass SSM. Comity and conflict of laws principles do not get you past that barrier, unless you believe that the holding of the Court of Appeals two years ago, finding that gay marriage is not included within the statutory definition of marriage, missed something.
The State of NYS not allowing SSM and SSM being contrary to public policy are not synonymous.

There are many things that the various states do not allow and yet are not so repugnant to be found contrary to public policy. In those cases, comity applies. I believe this is one such case. If you think I'm wrong, lobby for a NYS DOMA.
5.30.2008 4:45pm
This decision harms true equality (mail):
Dude, you're only "say" is your vote and your access to the court, unless you are in government everything else has no authority, no power.

Here we see the real problem. You confuse power with authority and political preference with constitutionality. Having power doesn't mean you have authority, and furthering your political agenda may not be constitutional. And in a constitutional democracy, where authority derives from the people and the Constitution limits governmental power for that very reason, that citizens have a say is fundamental. To say otherwise is to believe in faddish Foucauldian nonsense.

And you're right that a judge can violate the Constitution, but you still have to follow that order until a superior judge overrules it.

That isn't true. Citizens have no obligation to respect illegal acts by government officials. Even in the military, where citizenship rights are at their ebb, soldiers have no obligation to obey illegal orders. The President has no obligation whatsoever to adhere to a Supreme Court opinion that declares the President has no power to pardon, because the Constitution expressly declares otherwise and the Constitution governs. You are simply wrong, from top to bottom.

Patterson doesn't have to listen to your opinion, and there's no clear authority that prevents him from doing what he's doing.

Spitzer didn't have to obey the law and avoid screwing prostitutes, either, but that isn't much of an argument. You are simply an amoral anarchist.
5.30.2008 4:46pm
Oren:
No. The legislature was not stupid. It simply used the traditional (and actual) definition of marriage. You have a novel definition of marriage that you are attempting to read into marriage statutes that do not permit that interpretation, at least according to the Court of Appeals in New York. There is nothing wrong with your newfangled definition. But it is not the law.
Then they were stupid not to codify their definition.

Nor is anyone trying to read the newfangled definition into the marriage statutes -- SSM is still not available to NYS resident. I only insist that you read "all but" to mean "all but".
5.30.2008 4:47pm
This decision harms true equality (mail):
There are many things that the various states do not allow and yet are not so repugnant to be found contrary to public policy. In those cases, comity applies. I believe this is one such case.

And if you were Governor, the argument goes, acting on your shoddy reasoning would be reason to declare your actions unlawful partisanship, and to perhaps look for a legal remedy such as an injunction, impeachment or an administrative lawsuit.
5.30.2008 4:48pm
AGBates:
A few clarifying points that might help with some of the confusion on this thread:
(1) In NY, recognition of out-of-state marriages is governed by the common law rather than statute.

(2) Under the long-accepted common law rule, "the validity of a marriage contract is to be determined by the law of the State where it was entered into; if valid there, it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute." Moore v. Hegeman, 92 N.Y. 521 (1883).

(3) The Domestic Relations Law does not, on its face, alter the standard common-law formulation.
(a) Several provisions of the DRL (in Article 3) relate to the solemnization and licensing of marriages performed in NY. These were the ones that were read by the Court of Appeals to restrict NY marriage to opposite-sex couples. See Hernandez v. Robles. The wording of these provisions is very narrow (e.g., "It shall be necessary for all persons intended to be married in New York state to obtain a marriage license . . . ."). They do not purport to "define" marriage for all purposes, unlike the various DOMAs that have been passed.

(b) Several other provisions of the DRL (in Article 2) declare that particular types of marriages (incestuous, polygamous, etc.) are "absolutely void" in NY. These provisions do purport to "define" marriage, but only in a negative sense -- they tell us what marriage isn't rather than what it is. These provisions correspond to the "contrary to the . . . express prohibitions of a statute" exception noted above.

Unless you want to argue that the Governor directive is contrary to the common-law rule (a definite option), process-based arguments are going to be pretty unconvincing. The Governor hasn't "violated the law." The application of the law (in this case, the common law rule governing recognition of out-of-state marriages) is not perfectly clear:
(i) Has recognition of gay marriage been expressly prohibited by statute? (It doesn't appear so, but maybe it has been implicitly prohibited by the DRL under the Hernandez interpretation?)

(ii) Is gay marriage contrary to the prohibitions of natural law? (Maybe, but this category has traditionally been limited to incest and polygamy.)

(iii) Does recognition of gay marriage fall within the more general rule against applying foreign law that is "contrary to public policy"? (A tougher question, given Hernandez. The Appellate Division, 4th Dept., considered this recently and decided that it doesn't. See here).
But the bottom line is that (a) the law doesn't definitively resolve this question and (b) the Governor has the authority to interpret the law when telling his subordinates how to execute it. You can disagree with his interpretation. You can even criticize it on political or prudential grounds (former Lt. Gov. has "no popular mandate," policy promotes immorality, etc.). But you are on pretty weak ground when you argue that the directive is just plain illegal.
5.30.2008 4:49pm
This decision harms true equality (mail):
Then they were stupid not to codify their definition.

It is utterly bogus to claim that because a legislature in 1909 did not specifically bar gay marriage, it necessarily must have included it when it used the term marriage. That isn't legal analysis; it's childish sophistry.
5.30.2008 4:49pm
Something Wicked:
righteous contempt = superstition based bigotry

Right ithaqua?
5.30.2008 4:52pm
Oren:
Citizens have no obligation to respect illegal acts by government officials. Even in the military, where citizenship rights are at their ebb, soldiers have no obligation to obey illegal orders. The President has no obligation whatsoever to adhere to a Supreme Court opinion that declares the President has no power to pardon, because the Constitution expressly declares otherwise and the Constitution governs. You are simply wrong, from top to bottom.


Yes and no. Citizens are expected not to go into disobedience or revolt except in extenuating circumstances. General George Washington had no trouble putting down the whiskey rebellion (fairly brutally) because he understood that revolution is to be reserved for matters of actual importance.

Furthermore, a soldier actually has the obligation to disobey unlawful orders but that has limits. Suppose that PFC John sincerely believe that the President has no authority to send troops to Iraq due to lack of declaration of war (in his mind, the AUMF was an unconstitutional delegation, not an outrageous theory but still "out there"). Would you throw him in the brig for refusing to deploy?
5.30.2008 4:53pm
D Palmer (mail):

"Im not sure how "self-sacrificing" raising a family is."

You don't have children, I expect


Sorry, having children may require self sacrifice later, but choosing to procreate is not in itself sacrificing.

You have children to satisfy your own needs, not because of some overarching benefit to society in general.

I'm sure you are a fine person, but I doubt that your act of procreation has made the world a better place to live in for all. I could be wrong, your kids could cure cancer and stop war, but I'm sure you get my point in general.
5.30.2008 4:53pm
Chris Bell (mail) (www):
Adam J:

I suggest you stop arguing with TDHTE, you'll get nowhere. He/She will just change the subject. You also said: "However no court or legislature has ruled on the issue of comity here". In fact, Governor Patterson cited a case which has decided the issue. Here is what the NY court said:

The natural law exception [to comity] also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” (May, 305 N.Y. at 493), and that cannot be said here.

Defendants nevertheless contend that recognition of plaintiff's same-sex marriage is contrary to the public policy of New York, as articulated by the Court of Appeals in Hernandez v. Robles, 7 N.Y.3d 338, and thus falls within an exception to the rule requiring recognition of valid foreign marriages. We reject that contention. Hernandez does not articulate the public policy for which it is cited by defendants, but instead holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York (see id. at 356). The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages (see id. at 358-359) and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff's marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state.
5.30.2008 4:53pm
Oren:
Also, US v. Nixon stands for the proposition that the President does have to adhere to the SCOTUS, like it or not.
5.30.2008 4:53pm
This decision harms true equality (mail):
But the bottom line is that (a) the law doesn't definitively resolve this question and (b) the Governor has the authority to interpret the law when telling his subordinates how to execute it.

I think we are now having an argument about what "the law" is. Even if government has the authority to take your life, it still must do so through due process of law. I find your suggestion that process itself is not law and that process is irrelevant if the guy will be put to death anyway wholly deficient.
5.30.2008 4:55pm
Adam J:
Spitzer didn't have to obey the law and avoid screwing prostitutes, either, but that isn't much of an argument. You are simply an amoral anarchist.

Stooping to ad hominem I see. Who's the one with morals? You're still missing my point, my point isn't about who can obey the law, its about what the law is. The executive (Patterson), has the power to fashion rules to define &perform the law. There is a law of comity, which says that New York should honor acts, judgments and laws from another jurisdiction. This law has limitations, but none have ever been determined by a court or legislature to apply to gay marriage. Paterson therefore can determine whether these limitations do apply to gay marriage, because he has authority as the governor. If Paterson simply said gay marriage is allowed in NY, he'd be in the wrong. But he didn't, he applied the law of comity. And simply because you disagree, or don't find this argument compelling, doesn't make it so. That would be anarchism, to let anonymous blogger determine constitutionality. Furthermore, you can't point to a single objective reason why Paterson doesn't have a right to decide if comity applies, because there is none. No authority prevents Paterson from deciding this.
5.30.2008 4:58pm
D Palmer (mail):
I have seen several mentions of a benefit to society from limiting marriage to heterosexuals, but I haven't actually read what those benefits might be.
5.30.2008 5:00pm
Chris Bell (mail) (www):
Everything AGBates said is spot on.
5.30.2008 5:01pm
This decision harms true equality (mail):
US v. Nixon stands for the proposition that the President does have to adhere to the SCOTUS, like it or not.

That's an incompetently overbroad formulation of the holding of that case. It also deals with actual, substantive ccriminal proceedings, not the pure exercise of the pardon power, which was my example. I am not arguing that the Executive is immune from the criminal process; quite to the contrary, I am arguing that the Executive can break the law in technical ways even if lots of people support the political outcome.
5.30.2008 5:01pm
Adam J:
ABGates- I second that, good job laying out the issue.
5.30.2008 5:03pm
This decision harms true equality (mail):
Stooping to ad hominem I see.

Huh? You argued that a Governor can break the law and citizens can't do anything about it, so I should shut up and stop complaining. How isn't that amoral and anarchistic?
5.30.2008 5:04pm
Chimaxx (mail):
Also the problem with the genob/Dangermouse expense argument is that whenever economists have evaluated the question, they've found a net financial benefit for the state by permitting same-sex marriage.
5.30.2008 5:06pm
Elliot Reed (mail):
There is no legal substance to Patterson's act, because it is purely political. It is unlawful partisanship. Unlawful partisanship can take many forms. One example is a separation of powers violation. In New York, I imagine a state agency that was annoyed by the directive could file an Article 78 action.
The man is a politician: doing things for political reasons is his job. Nothing compelled him to issue this order but his action is 100% consistent with the decisions of the New York courts that have ruled on the issue directly. The (supposed) fact that his motivation is political is irrelevant to the legality of the order.

And if you really think partisanship is unlawful, I think you'll need several years of remedial civics education.
5.30.2008 5:10pm
This decision harms true equality (mail):

Furthermore, you can't point to a single objective reason why Paterson doesn't have a right to decide if comity applies, because there is none. No authority prevents Paterson from deciding this.



Well, I think that's the wrong way of looking at it. Patterson doesn't have any authority to do it. Your way of interpreting NOTHING is to say "Nothing prevents him!" My way of interpreting NOTHING is to say "Nothing is there; something needs to be there to warrant the action." It would seem that since the Governor's powers are in the written state constitution, and those powers are circumscribed and limited, he needs an explicit grant of authority to do something, rather than having the free and roving discretion of a king to decree whatever he wants. But since you believe that law is little more than raw exercise of power, there's nothing I can do to persuade you. Long live gay marriage by fiat!
5.30.2008 5:10pm
Adam J:
This decision harms true equality

I said- Patterson doesn't have to listen to your opinion, and there's no clear authority that prevents him from doing what he's doing.

You are now claiming I said the Governor can break the law. Please tell me how this isn't a ludicrious misrepresentation of my words. Of course you can't, because now that you recognize you're argument is wrong, you've sunk to trolling.
5.30.2008 5:12pm
genob:

I have seen several mentions of a benefit to society from limiting marriage to heterosexuals, but I haven't actually read what those benefits might be.


I think the primary benefit has been widely discussed here: the ability for government to promote (more or differently) the ideal environment (not the only good environment, but the ideal) and relationship in which to raise children, the next generation of that society.

There are others (for example, promoting a relationship and environment that tends to have a civilizing effect on males) but that one is clearly #1 I think.
5.30.2008 5:15pm
This decision harms true equality (mail):
Nothing compelled him to issue this order but his action is 100% consistent with the decisions of the New York courts that have ruled on the issue directly. The (supposed) fact that his motivation is political is irrelevant to the legality of the order.

1. Thanks for admitting there's no legal authority for it.
2. It is not 100% consistent. The best defense of the action here, by ABGates, rather plainly admits that at best it's a murky question. That's not 100% consistent. It's a reason to field the question to state agencies and see if there is confusion that warrants a uniform interpretation, not a reason to mandate a uniform intepretation in the absence of that review that is pre-written by the Empire State Pride Agenda. I don't think there is any confusion, Patterson is just using this as a way to overturn Robles.

And if you really think partisanship is unlawful, I think you'll need several years of remedial civics education.

Not before you take your remedial literacy class! Some partisanship is ublawful; some is not.
5.30.2008 5:15pm
Elliot Reed (mail):
I have seen several mentions of a benefit to society from limiting marriage to heterosexuals, but I haven't actually read what those benefits might be.
No, no no. There's no heterosexuality requirement: homosexuals are 100% free to enter into sham marriages. It's kind of like how the law, in its majestic impartiality, prohibits rich and poor alike from sleeping under a bridge at night.
5.30.2008 5:16pm
Adam J:
This decision harms true equality -"Nothing is there; something needs to be there to warrant the action." The doctrine of commity is something. The same sex married couples from other jurisdictions seeking comity are something! Action is needed, comity either needs to apply or not apply. Your problem is Patterson chose the action you didn't like.
5.30.2008 5:17pm
Adam J:
"The best defense of the action here, by ABGates, rather plainly admits that at best it's a murky question." Ah, so now the executive isn't allowed to act when its a murky question? Someone should tell Bush that...
5.30.2008 5:19pm
This decision harms true equality (mail):
But he didn't, he applied the law of comity.

Comity is a legal presumption that is determined by courts. I don't think it is proper for Governors to apply the law of comity, and I haven't seen anything here in this thread that suggests otherwise.
5.30.2008 5:19pm
This decision harms true equality (mail):
Ah, so now the executive isn't allowed to act when its a murky question? Someone should tell Bush that...

Exactly. And I fully agree with the criticisms that the Bush administration has violated the rule of law and acted lawlessly. Just as I criticize Patterson here. It is wrong when Bush does it and wrong when Patterson does it. I agree completely.
5.30.2008 5:21pm
This decision harms true equality (mail):
The doctrine of commity is something. The same sex married couples from other jurisdictions seeking comity are something! Action is needed, comity either needs to apply or not apply. Your problem is Patterson chose the action you didn't like.

No. My problem is I don't think that's a legitimate basis for his action, nor do I think it was done internally within the Executive, the right way, as I have noted before. I'm not opposed to gay marriage, and I think Bush is evil.
5.30.2008 5:23pm
Adam J:
This decision harms true equality - "I don't think it is proper for Governors to apply the law of comity, and I haven't seen anything here in this thread that suggests otherwise." You're kidding right, if the Governor had said comity didn't apply and didn't allow out of state gay marriages, he still would have been making an executive determination of whether comity applies.
5.30.2008 5:24pm
This decision harms true equality (mail):
if the Governor had said comity didn't apply and didn't allow out of state gay marriages, he still would have been making an executive determination of whether comity applies.

In such a case, I imagine the Governor would have taken no action and said nothing. That can't possibly be an action that violates the law.
5.30.2008 5:26pm
Adam J:
This decision harms true equality - In such a case, I imagine the Governor would have taken no action and said nothing. That can't possibly be an action that violates the law. No action? He'd be denying the validity of out of state marriages, that is an action. Furthermore, that's an action that opposes the common law of New York, which says as a general rule of law that a marriage contracted in another state or country, if valid where contracted, is valid in New York.
5.30.2008 5:32pm
This decision harms true equality (mail):
Taking no action is not an action.
5.30.2008 5:33pm
Elliot Reed (mail):
1. Thanks for admitting there's no legal authority for it.
2. It is not 100% consistent. The best defense of the action here, by ABGates, rather plainly admits that at best it's a murky question. That's not 100% consistent.
See, e.g., Martinez v. Monroe Comm. Coll., 850 N.Y.S.2d 740 (N.Y. App. 2008); Godfrey v. Spano, 2007 NY Slip Op 27105 (N.Y. Sup. 2007). Please feel free to point to contrary New York authority but I haven't found it anywhere.
5.30.2008 5:33pm
genob:

"The best defense of the action here, by ABGates, rather plainly admits that at best it's a murky question." Ah, so now the executive isn't allowed to act when its a murky question? Someone should tell Bush that...


Seriously. If the NY legislature's decision to decline to pass a DOMA implies that they accede to recognition of out of state gay marriage, then the fact that Congress considered a specific prohibition on waterboarding but decided not to enact it should put to rest the ridiculous screams from the left that Bush is a criminal (or more of a criminal than the majority of Congress at least). The waterboarding example is a more direct indicator of Congressional intent to permit it than the fact that NY hasn't changed a very old law.
5.30.2008 5:35pm
Adam J:
This decision harms true equality - And one more thing, the courts don't traditionally rule on the validity of marriage contracts, the executive does. Its only when someone disagrees with the executives decision that the court will rule.
5.30.2008 5:37pm
This decision harms true equality (mail):

The waterboarding example is a more direct indicator of Congressional intent to permit it than the fact that NY hasn't changed a very old law.



Exactly. The method of reading legislative intent and judicial acquiescence nowadays is totally ass-backwards. I'm not opposed to gay marriage, but some people on this thread really have their heads of their asses. It's like I'm arguing with John Yoo.
5.30.2008 5:37pm
Adam J:
This decision harms true equality- Taking no action is not an action. The executive can't take no action, they have to decide if the marriage contract is A) valid; or B) not valid.

No action is simply not a choice here.
5.30.2008 5:39pm
This decision harms true equality (mail):
the courts don't traditionally rule on the validity of marriage contracts

I wouldn't call a clerk giving out a license a ruling. Comity is a legal presumption that applies in judicial proceedings. It's not like criminal law that binds the Executive, a la US v. Nixon. The Governor can just sit in his office and ignore the issue without "violating the law of comity". Your argument just makes no sense, on a very deep level, and Patterson's legal warrant for his action was very, very weak at best. You've already conceded that. Stop trying to make me out to be a Bush-loving bigot. I'm not.
5.30.2008 5:41pm
This decision harms true equality (mail):
The executive can't take no action, they have to decide if the marriage contract is A) valid; or B) not valid.

That is silly. Prior to Patterson's directive, there was no contrary directive. The absence of such a directive was not a constitutional issue. Not issuing Patterson's directive would have been unproblematic.
5.30.2008 5:43pm
Adam J:
This decision harms true equality - waterboarding is not an accurate analogy here. Here, the executive must either give validity or not give validity to gay marriage contracts. They have a doctrine that says generally validity should be given to marriage contract. This is the least 'activist' decision there is for cripes sake.
5.30.2008 5:43pm
Chris Bell (mail) (www):
genob, this is different because the courts have consistently said for 100 years that they will recognize out of state marriages unless told not to. The courts have never said "we're going to allow torture unless Congress says not to."
5.30.2008 5:45pm
This decision harms true equality (mail):
waterboarding is not an accurate analogy here.

Sounds like someone got backed into a corner and wants to change the subject. I'm done.

Thanks for the (mostly) civil discussion.
5.30.2008 5:45pm
Chris Bell (mail) (www):
Adam J, I repeat my suggestion that you stop arguing with TDHTE.

If you want to know how the actual decision went down, a gay married couple moved to New York and one spouse got a job with an agency of the state. The spouse requested that her partner be covered under the spousal benefits policy. AT THAT POINT, the state agency declined to do so. (They could have ignored the request, which would have effectively been a no, but they said no.)

The gay couple then sued. They claimed to be married, they claimed that standard NY law required their marriage to be recognized, and they requested benefits. The NY Court agreed entirely. (This pattern has repeated itself in several cases, and each time the NY Court has agreed. The legal issues are entirely simple and clear.)

NY was being forced to recognize out of state same sex marriages one agency at a time. Patterson's decision effectively stops the stream of losing lawsuits. He should be commended on that basis alone - no sense in wasting taxpayer money on losing a case for the fourth and fifth time.
5.30.2008 5:50pm
Adam J:
This decision harms true equality - "That is silly. Prior to Patterson's directive, there was no contrary directive. The absence of such a directive was not a constitutional issue. Not issuing Patterson's directive would have been unproblematic." There wasn't a directive? That's comical... so government officials just decided on their own personal preference whether to accept the marriage or not. You crack me up dude.
5.30.2008 5:53pm
Chimaxx (mail):
This decision harms true equality:

Not taking action would be an action--and an expensive one for the state.

Let's say I was married to a same-sex partner in Massachusetts and then moved to New York, then applied for a Driver's License and checked the "Married" box. The Secretary of State's Office has to decide whether to permit me to check the Married box on my application or prohibit me from doing so and require me to apply as Single. Lacking instructions from the Governor, they try to force me to apply as single, so I take them to court. Given the Martinez decision I would win. Eventually gay couples would do this for every state agency, one by one, costing them and the state huge amounts of money litigating at each agency.

All Patterson did was bypass all those suits.
5.30.2008 5:53pm
Adam J:
Chris Bell - You're absolutely right, I'm afraid I'm too stubborn. Thanks for explaining the context behind the decision.
5.30.2008 5:57pm
Zip:
So the elected goveror makes an administrative decision that is (1) within his purview (2) not contrary to law or judicial ruling and (3) consistent with nearly all precedent on the matter (i.e. recognizing legal marriages performed out of state) and this is "undemocratic" and "anti-libertarian"?

Wasn't the governor elected to make such administrative decisions, and can't he be held accountable for it in the next election? Wasn't his predecessor elected after having voiced his support for same-sex marriage? Can't the legislature or courts still step in if they don't like the decision? Didn't one house of the legislature already garner a majority vote in favor of fully legalizing same-sex marriage? (Oh, and where were the anti-same sex marriage peoples' shrieks of "un-democratic" when the President of the state Senate single-handedly prevented the bill from being voted on in his chamber?) Sounds pretty democratic (or republican) to me.

As for "anti-libertarian", libertarians believe equal treatment in the ability to enter marriage contracts to be a right, and that minority rights should be protected regardless of whether there has been a popular referendum on the matter. There's never been a popular referendum in New York on banning segregation or legalizing interracial marriage, yet the criers of "undemocratic" and "anti-liberal" aren't saying a peep about those two.
5.30.2008 6:08pm
Kazinski:
Zip,
You have entirely right. The governor is within his powers to order the recognition of same sex marriages, and there are remedies for the voters to pursue.

But actions like this encourage the remedy of state constitutional amendments, like Michigan's, to ban gay marriage, and as in Michigan's case go even further and ban public payroll domestic partnership benefits.
5.30.2008 6:18pm
Chris Bell (mail) (www):
Kazinski, why an amendment? A legislative statute would be enough to overturn this action by the governor.

Of course, such a statute was proposed a few years ago and failed to pass....
5.30.2008 6:35pm
Adam J:
Kazinski- And those states that pass such statutes will in all likelyhood suffer from the loss of productive individuals who move away to avoid this discrimination.
5.30.2008 6:39pm
Phaedrus:

allowing Gay marriage is, in a large number of cases, a fairly massive tax break for a bunch of moderately wealthy people...

So, to the extent that governments are going to have to raise money or carry extra debt to make up the lost income, it is 'picking your pocket'.



Okay, so if government must raise money to make up for tax breaks to the moderately wealthy w/r/t gay marriage, why doesn't this argument apply to hetero marriages? If the state stopped recognizing hetero marriages (IOW, marriage survives as a conceptual, social union, just not a legal one with any benefits, tax breaks, etc.), wouldn't we save money collectively? So why don't we treat them all the same and get the state out of the business of recognizing marriage as a legal concept, period?

And if you can't get behind that, realize that recognizing SSM is simply a matter of equality--giving tax breaks to one pair of competent, consenting adults and refusing to give that same break to another pair of competent, consenting adults is flat unfair. There's no argument around it. And no, it doesn't matter whether the adults in question are first cousins, uncle and niece, man and man, etc. The only only possible combinations I can see as truly problematic for the state are those that have psychological or genetic consequences that entail persons beyond the couple itself enduring demonstrable, concrete harms (take the easy example of a mother marrying her son or a father his daughter).

We might see a bigger tax burden. Boo hoo. And whites had to work their own fields when blacks were (sort of) recognized as persons and released from slavery. Your argument of practicality over fairness is tripe.
5.30.2008 6:55pm
Oren:

That's an incompetently overbroad formulation of the holding of that case [US v. Nixon].

(1) The SCOTUS ordered Nixon to do X
(2) Nixon believed that (1) was illegal and unconstitutional
(3) Must Nixon still do X?
5.30.2008 7:01pm
Adam J:
Phaedrus- Also, it's questionable to call it a fairly massive tax break. The only time marriage offers noteworthy significant tax break is when one individual makes alot of money and the other individual doesn't work. Married couples where both members are breadwinners tend to have a minimal tax break or a tax disadvantage compared to singles.
5.30.2008 7:01pm
Elliot Reed (mail):
Adam J--also, cases where one spouse earns >> than the other does or the other doesn't work are probably a much lower percentage of same-sex marriages than of different-sex marriages.
5.30.2008 7:10pm
CJColucci:
My problem is I don't think that's a legitimate basis for his action,

I don't think that's your problem, and I'm sure many others here would agree with me.
5.30.2008 7:54pm
Kazinski:
Chris Bell,
It is entirely obvious why a Constitutional amendment is necessary, and a statute won't suffice in many states: the courts can and will void a statute, but it is a lot harder for the courts to void a constitutional provision. Not impossible, but a lot harder.

Adam J.
My own state of Washington has banned gay marriage, allowed civil unions, and had the ban upheld by the State Supreme Court. If that has caused an exodus of gays from the state, nobody has noticed. In fact I'll wager the immigration balance is substantially a net inflow.
5.30.2008 8:12pm
genob:

genob, this is different because the courts have consistently said for 100 years that they will recognize out of state marriages unless told not to. The courts have never said "we're going to allow torture unless Congress says not to."


Sort of, and I agree the parallel isn't exact. But the debate on waterboarding is whether it is in fact "torture." Congress specifically considered and debated whether to call out waterboarding as torture and (probably out of political cowardice) chose not to...that's a pretty clear signal to the executive that waterboarding isn't included in Congress' view of what torture is. Turns out it was only a signal of political cowardice in Congress however.

What we don't have in the NY situation is a clear debate at the legistlature noting that this new thing called gay marriage is happening in one or two other states and that there is a need to decide whether or not the old law needs to be amended or not....It's more a case of litigants and the governor being quick and smart to exploit a loophole in the old law, rather than acting on some clearly expressed legislative intent.
5.30.2008 8:18pm
Chris Bell (mail) (www):
Kazinski:
It is entirely obvious why a Constitutional amendment is necessary, and a statute won't suffice in many states: the courts can and will void a statute

Well... the NY courts have already upheld a statute limiting NY-created marriage to opposite sex couples, so it is not entirely obvious to me.
5.30.2008 8:47pm
DangerMouse:
Chris Bell: Human institutions, like marriage, respond to the pressures we put on them. The desire to add "love" into the meaning of marriage has succeeded over the years and has now become one of the prominent justifications for getting married. Women want to "fall in love and get married." When marriage is about a commitment, it becomes much harder to justify the exclusion of gays.

Your version of marriage was crumbling before California courts ever appeared on the scene. It was crumbling when John Adams treated Abigail like an equal.

I don't know how disgusting it is that someone thinks that traditional marriage is incompatible with love, and thinks that treating women like an equal undermines marriage. I said there was a risk of us talking past each other, but I didn't think you were so demented to believe that traditional marriage is undermined by love and equality.

The commitment of two people who love each other. That has been the biggest change in marriage over the centuries. Marriage wasn't about love in the past; it was about raising a family or social status.

This is what happens when radical feminists teach political science. You get moronic statements like yours. Marriage wasn't about love in the past? Honestly. How many times does the Bible talk about loving your wife? In the Old freaking Testament? That stuff has been preached for thousands of years! I have never seen such unfounded, arrogant, chronological snobbery. Yes, some cultures might've believed that getting married first faciliates love between the sexes, but that doesn't mean that marriage was about social status.

You might as well just admit that you don't think marriage has any value in raising children or providing tranquility between the sexes. I knew that libertarianism is easily characterized as a philosophy for people without children, but you take the cake. Go ahead, crap all over marriage. It wasn't about love, it was about social status. It's not about raising kids and starting a family, it's about power. It's not about providing for your wife and loving your husband, it's about what's good for YOU.

People on this blog question whether marriage is self-sacrificing. They question whether traditional marriage had anything to do with love. They question whether society should support families. They question that it's all a shell game, a power game, about money and social status, and wonder why any of it has any value at all.

Sophistry this thick convinces me that it is an intentional desire to destroy the family for the pursuit of hedonism. I don't know what others will do, but I will fully resist that agenda to the fullest extent, whether acting inside the law or not.
5.30.2008 8:51pm
Jeff R.:
Of course, the real traditional purpose of marriage doesn't have a thing to do with the well-being of the children as such. It was all about deciding who gets to inherit property when dad died. (and thus prevent the sons by different parents from constantly killing one another over the issue) So that's been obsolete ever since we started letting people draw up their own wills...
5.30.2008 9:52pm
Punditius (mail):
Until the present, at no time in Anglo-American legal history have homosexual relationships been recognized as legally binding marital unions. Not through statutory enactment, not through judicial "common law," not through accepted social practice.

I am not aware of any state in the union in which gay marriage has been passed by the legislature, much less signed into law by the governor. In every case in which gay marriage has been legalized, it has been through judicial action.

What seems to be happening here is that the courts are forcing us into recognizing homosexual marriages, whether we like it or not. Sometimes it is by fiat, as in Vermont. Sometimes it is with a greater legitimacy, as by applying the principles inherent in ERA enactments in a fashion predicted by the opponents of those enactments, in Massachusetts.

But in no instance have the people of this country consented to the common understanding of what "marriage" means being changed in such a fundamental fashion as some courts are mandating. To the extent that the matter has been raised in the legislatures, the most that has happened is enactment of civil union statutes - and in California, it seems that this very fact was used by the court to do precisely what the legislature had the opportunity to do, and did not do.

The problem is that this approach to law is a solvent to the general agreement that we, as a people, are willing to live under the laws enacted by their representatives in the legislature.

As Abraham Lincoln supposedly pointed out, you can call a dog's (actually, a calf's*) tail a leg, but the dog still has only 4 legs. Likewise, you can call a homosexual partnership a marriage, but it is not a marriage, at least as that term is understood by ordinary people in their everyday lives. Unlike interracial marriage, which was understood in some states as a marriage which should not be permitted, gay marriage is generally understood as a marriage which cannot exist.

So what happens when the law says something that ordinary people know - or at least, believe - not to be true? Remember your Dickens:
when the character Mr. Bumble is informed that "the law supposes that your wife acts under your direction". Mr. Bumble replies "If the law supposes that… the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience."
(http://en.wikipedia.org/wiki/Coverture)

It occurs to me that I can coin a new word here: bumblefication. (A Google search did not return any use of that word.) What we have here is the bumblefication of the law of marriage.

Personally, I think that the legal concept of "marriage" is unraveling. In fact, all of our laws governing sex seem to be dissolving. At the extremes, you can see that on the one hand, we have laws against bigamy (and hence, polygamy) but in practice, there's nothing much to prevent a man from having as many sexual partners as he can get, to the point of practical polygamy. The judicial interpolation of homosexual unions into our legal definition of marriage is simply one aspect of this larger matter.

And in the meanwhile, I think that a substantial portion - a majority, in fact - of our population is watching this happen, and reaching Mr. Bumble's conclusion.

The action of New York's governor is just a logical extension of the ongoing bumblefication.

——

*
5.30.2008 9:59pm
Punditius (mail):
*footnote to my last post was suppose to be:

http://timpanogos.wordpress.com/2007/05/23/
lincoln-quote-sourced-calfs-tail-not-dogs-tail/
5.30.2008 10:07pm
Waldensian (mail):
I have never seen more, or worse, flailing in a Volokh thread than this performance by TDHTE. It's just incredible. After a while I thought "troll," but I've never seen a troll that dedicated.

I feel that I am somehow destined to sit next to TDHTE on a lengthy airline flight.

The horror. The horror.
5.30.2008 10:37pm
Chairm (mail):
Chris Bell said:

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.


Actually, the problem here is that there is no such thing as a marriage between two men or two women. So it is not even a matter of adding "gay marriage" to the list of those prohibited.

The list in the law does not include an exhaustive list of nonmarital arrangements.


Point is, the courts and the executive are enforcing a LAW.


Nope. The law does not recognize nonmarital arrangements as marriages. To get to your conclusion you'd have to begin with substituting marriage with nonmarriage. That is something other jurisdictions have done, contrary to the marriage laws of NY, but this does not require the unelected Gov of NY to comply with such a substitution.

It is ridiculous to claim that NY had to react to the laws of other jurisdictions to explicitly add to the list of prohibited marriages the nonmarital arrangement that lacks one or the other sex.
5.31.2008 12:02am
Chairm (mail):
Pender said:

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 [...] 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.


Even an executive order based on the inappropriate role played by the judiciary?

The SSM argument is based on identity politics, pure and simple, not principles of justice.

What are the essentials of marriage as defined in the legal requriements in your favorite jurisdiction where SSM has been merged with marriage via the courts.

Then try to justify, on that basis, the explicit list of non-recongized marriages in NY.

The SSM campaign is corruptive of our marriage culture and of principles of good governance. This is the latest example of that.
5.31.2008 12:13am
Chairm (mail):
D Palmer said:

There is no reason that a state should prevent one competent adult from legally marrying another competent adult.


Yet it is a legal requirement that people are competent to consent to what marriage entails.

This includes the marriage presumption of paternity, for example, and such a presumption cannot apply to any one-sex-short combination -- gay or otherwise. This is one of the strongest laws of legal system and it is vigorously enforced.

The marriage law includes the man-woman criterion is stands for the integration of the sexes and, in combination with the marriage presumption, the integration of fatherhood and motherhood. No one-sex-short combination of can adhere to this legal requirement. This is fundamental to what the state recognizes when it acknowledges the social institution of marriage, yet SSMers attack it with abandon.

So, to what essentials would you apply competent consent in the instance of the one-size-fits-all relationship type that you have in mind?
5.31.2008 12:23am
Chairm (mail):
D Palmer said:

There is no reason that a state should prevent one competent adult from legally marrying another competent adult.


Yet it is a legal requirement that people be competent to consent to what marriage entails.

This includes the marriage presumption of paternity, for example. The presumption cannot apply to any one-sex-short combination -- gay or otherwise. This is one of the strongest laws of our legal system and it is vigorously enforced.

The marriage law includes the man-woman criterion. It stands for the integration of the sexes and, in combination with the marriage presumption, for the integration of fatherhood and motherhood. No one-sex-short scenario can adhere to this legal requirement. This is fundamental to what the state recognizes when it acknowledges the social institution of marriage, yet SSMers attack it with abandon.

So, to what essentials would you apply competent consent for the one-size-fits-all relationship type that you have in mind? Would there be any prohibitions -- any boundaries around those essentials?
5.31.2008 12:27am
Randy R. (mail):
Charm: "Actually, the problem here is that there is no such thing as a marriage between two men or two women"

So we are back to this idiocy. Well, there IS gay marriage in Massachusetts, Canada, Spain, South Africa, Belgium and the Netherlands. And now California and NY will recognize gay marriage.

Perhaps you don't like it, but that's the reality.
5.31.2008 12:45am
Chairm (mail):
Nathan_M said:

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.


It has been interesting to witness how SSMers have contradicted themselves in fundamental ways throughout the push to impose the SSM-merger in these three states.

The sky has not fallen where the merger has been rejected. But in our country the social institution of marriage remains under direct attack by the SSM campaign's multi-headed hydra.

If advocates want to replace recognition of marriage with recognition of something else, advocate for that forthrightly instead of the nonsense about "extending" marriage to gays.

The issue is not gayness but the core of marriage around which boundaries are drawn. What is the core of the relationship type that the former Lt Gov of NYS now wants to merge with marriage?
5.31.2008 12:47am
Chairm (mail):
Randy,

On what basis has the SSM-merger been imposed in Massachusetts? Look to Ontario. On what basis has the merger been imposed in Ontario?

Likewise for Spain and for South Africa.

The basis is gay identity politics and the vehicle is the substitution of marriage recognition with recognition of something else.

You don't like that description of the reality, but that does not change it.

And, sure, I know you, Randy, will continue to evade the basic issue of why gay identity politics should trump the core, the nature, the essentials of the social institution of marriage.

That issue has always been about the substance of marriage, and always gets answered with some idealized notion of identity politics -- at least the gay version.
5.31.2008 12:52am
Chairm (mail):
And, Randy, namecalling won't win this argument.
5.31.2008 12:53am
Chairm (mail):
Pender said:

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?


A man becomes a husband when he marries the woman who becomes his wife. So if you want marriage, that's marriage for you.

But you apparently want something else. Please state the essentials, the core, the nature of that type of relationship. Then please point to the legal requirements that reflect these essentials.

Then we can return to your insistence that the list of prohibited marriage includes what you have in mind.
5.31.2008 12:58am
Chris Bell (mail) (www):
Well, Chairm, you'd have to read through the entire thread to really be in on the discussion (a daunting task at this point, I know) but your objections were raised and answered.

To get to your conclusion you'd have to begin with substituting marriage with nonmarriage. That is something other jurisdictions have done, contrary to the marriage laws of NY, but this does not require the unelected Gov of NY to comply with such a substitution.

It is ridiculous to claim that NY had to react to the laws of other jurisdictions to explicitly add to the list of prohibited marriages the nonmarital arrangement that lacks one or the other sex.


Call it ridiculous if you want to, but it is the law. That's right, if California changes the definition of marriage then it affects what marriages will be recognized in NY. Most states work this way, which is why most states passed mini-DOMA laws to change it. NY didn't.

Have a look at this 1996 law article, fully flushing out these issues and basically predicting what just happened in NY today. Slberman, "Can the Island of Hawaii Bind the World? A Comment on Same-Sex Marriage and Federalism Values," 16 Quinnipiac Law Review 191 (1996).

Notice that the article was written in 1996, so no one can say that this is some sort of shock.
5.31.2008 1:04am
Chairm (mail):
Randy said:

So basically, any decision, whether by judges, elected officials or people bureaucrats just doing their jobs, is bad if it's in favor of gays. And yet WE are the ones accused of using any means to advance our agendas!


You are projecting.

The SSM campaign cries wolf all the time when asserting that it is an act of bigotry to disagree or to oppose the SSM-merger -- no matter where the decision is made -- judiciary, legislature, executive, ballot box.

As stated earlier, namecalling won't win the argument.
5.31.2008 1:08am
PDXLawyer (mail):
Is there anything in New York law that prohibits recognition of a "marriage" in another state that includes a person who is not a natural person but is a juridical person (for example a corporation)? After all, juridical persons are capable of consenting to contracts. And, apparently, no particular act of physical consumation is required. Also people have been known to express "love" for corporations, and sometimes even to die in their loyal service.

Obviously, this is silly, but I wonder what formal objection SSM supporters see.
5.31.2008 1:14am
Chairm (mail):
Chris Bell, I'm working my way through the thread. Thanks for the summary.

You used the example of first cousin marriages, but both the prohibition in NYS and the allowance in other states are based on core of the social institution of marriage, which is both-sexed.

Both laws would make little sense in the absence of the man-woman criterion.

Relabelling nonmarital arrangements as "marriage" serves to elude this problem. So there is more at stake than the miscontruing of precedent.
5.31.2008 1:18am
Chairm (mail):

Massachusetts has had gay marriage for five years now.


No, it has something for which Party A and Party B gain a license. This lacks a husband and a wife and, no matter its merits and demirts, it is not marriage.

The marriage statute was not re-written. The judiciary did not re-write it nor did the legislature nor did the Governor. The man-woman requirement still stands.

If, however, you base your claims on the Goodridge opinion, then, you remind all of how corruptive the courcentric approach of the SSM campaign has been on all three branches of government in the state of Massachusetts.
5.31.2008 1:30am
Chris Bell (mail) (www):
DangerMouse: I really enjoyed the way you twisted everything I said and then finished off with a call to anarchy to save society from itself. Thoughtful!

I don't know how disgusting it is that someone thinks that traditional marriage is incompatible with love


Did I say that?

Marriage wasn't about love in the past? Honestly. How many times does the Bible talk about loving your wife? In the Old freaking Testament? That stuff has been preached for thousands of years!


The Old Testament also told you to let your slave take the day off on the Sabbath. There's a big difference between "love your wife" and "make the person you already love into your wife."

I am not saying that you did not love your wife in traditional marriage. I am saying that you did not marry primarily for love. I point out that in your list of "the reasons for traditional marriage" you yourself did not include love as one of the reasons. You listed (1) children, and (2) marking your territory as the reasons for marriage. I am saying that love is now considered the primary reason for marriage.

I repeat, I am not saying that there could not be love in traditional marriage. I am saying that they did not marry primarily for love.

I expect if you asked a group of young kids today "why do people get married" the number one answer would be "because they love each other." Why did you not even mention the #1 answer?
Sophistry this thick convinces me that [the push for gay marriage recognition] is an intentional desire to destroy the family for the pursuit of hedonism.

I love the way you accuse me of sophistry while claiming that recognizing same sex marriage must be a plot to destroy society. An instant internet classic!

It's not about providing for your wife and loving your husband, it's about what's good for YOU.


Well, no. I personally don't think of my role in marriage as "providing for" my wife, I view it as a partnership where we each help each other, but even your larger point is wrong. I am saying that today marriage is all about finding someone else to share life with. It's not all about YOU, it's all about THEM. Once that is the point of marriage, the case for excluding gays is drastically weakened.

Just listen to the two sides talk about the issue. The anti-SSM side talks all about tradition and the way things have always been. The pro-SSM side talks about being with the person you love. The two sides can't agree because they have different ideas of what marriage is about.

Finally, notice how I was able to respond to your points without calling you "demented", "moronic", or "arrogant" like you did. I think my coolheadedness comes from the fact that the young people overwhelming support same sex marriage. You've already lost this issue; it's just a matter of time.

Sleep tight!
5.31.2008 1:31am
MarkJ (mail):
Judging from the above comments, and the increasing tendency of politicians and judges to play god, if you thought the last civil war was bad....then you'll hate the next one even more.
5.31.2008 1:32am
Chairm (mail):
Patterson's decision is purely political.

He authored a change by which NYorkers must go out-of-state to do what is impermissable within NYS.

He did so not because of comity with those other states which would be SSMing NYorkers. NYS can't return the favor.

This is very like the inverse of the SSM argument in CA whereby Prop 22 was said to dissalow recognition of out-of-state SSMs but at the same time permitting SSM in CA.

These pro-SSM twists and turns do havoc to respect for the law. This is a national issue and not merely a localized issue within each state. The SSM campaign says as much -- but then pursues its nationwide imposition of SSM under the cloak of localized decisions.
5.31.2008 1:38am
Chris Bell (mail) (www):
Chairm, you'll also find your current point addressed in the thread - the idea that there is some "essence" of marriage that, if changed, makes the result non-marriage.

For example, you say that "cousins can't marry" is a "criteria" of marriage. Then you say that "same sex couples can't marry" is the definition of marriage.

As I said earlier, that is just word games. I can make the opposite argument with as much basis. How would you qualify "siblings can't marry". Is that a criteria or part of the definition?

This ties in with what I have been saying to DangerMouse. What is the definition of marriage? I assert, and I believe that a growing number of people agree, that marriage is "a lifelong commitment that two people make to each other when they are in love." Under that definition, leaving out same sex couples just doesn't make sense.

You're going to continue to lose the SSM battle as long as people continue to come to believe that the point of marriage is a partnership of love.
5.31.2008 1:40am
Mark F. (mail):
The man-woman requirement still stands. Perhaps in your religion or in your mind, but not legally in some states. Can we stop the sophistry? I'm sure some people think that no man with a "drop of nigger blood" can validly marry a white woman. That is their opinion, it has nothing to do with the law.
5.31.2008 1:42am
Chris Bell (mail) (www):
PDXLawyer
Is there anything in New York law that prohibits recognition of a "marriage" in another state that includes a person who is not a natural person but is a juridical person (for example a corporation)? After all, juridical persons are capable of consenting to contracts. And, apparently, no particular act of physical consumation is required. Also people have been known to express "love" for corporations, and sometimes even to die in their loyal service.

Obviously, this is silly, but I wonder what formal objection SSM supporters see.

I see the enormous objection that no state has enacted a marriage statute allowing the type of marriage you are hypothesizing. Before these statutes come into play, there must be other states where the newfangled type of marriage is actually used.

That's why the bestiality examples are ridiculous; no state is going to recognize that.

If some other state really had this form of marriage and really treated it seriously, it would be a tougher question. (Well, as tough as a ridiculous impossibility can be.)
5.31.2008 1:43am
Chairm (mail):
Chris Bell said:

I am saying that love is now considered the primary reason for marriage. [...] The anti-SSM side talks all about tradition and the way things have always been. The pro-SSM side talks about being with the person you love.


I don't wish to butt into someone else's exchange, but I want to point out that there is no "love" legal requirement.

And SSMers make a big deal about the lack of a legal requirement to procreate. So you can't use love as definitive of marriage -- under the rules of the pro-SSM side.

Also note that the routine argument against tradition that SSMers make is also negated by this claim that marriage has become primarily about "love" in the popular culture is an appeal to a relatively recent tradition of romantic love.

If SSMers mean to restrict eligibility to those who are "in love", then, they need to specify the kind, the quantity, and so forth so that the boundaries can be drawn correctly. I doubt that this basis would justify prohibitions on related people and on plural marriage, but maybe NYS will provide the advance guard for this idea of marriage.
5.31.2008 1:46am
Chris Bell (mail) (www):
No, there is no legal "love" requirement, but that's only because we don't want the government inquiring into people's feelings. I personally believe that two people who do not love each other should not get married. Maybe you believe that two people who do not intend to have children should not get married?
5.31.2008 1:49am
Randy R. (mail):
Chairm: "No, it has something for which Party A and Party B gain a license. This lacks a husband and a wife and, no matter its merits and demirts, it is not marriage."

Legally, of course, it is. I know several gay couples who got married in Massachusetts, and they now have all the same benefits of hetero marrieds.

""The marriage statute was not re-written. The judiciary did not re-write it nor did the legislature nor did the Governor. The man-woman requirement still stands."

I see. So there are no gay marriages occuring in Massachusetts? Or in California? well, then what's all this fuss about gay people getting married?
5.31.2008 1:53am
Chairm (mail):
Chris Bell said:

For example, you say that "cousins can't marry" is a "criteria" of marriage. Then you say that "same sex couples can't marry" is the definition of marriage.


Close but not quite right. I said that BOTH the prohibition and the allowance of first cousin marriage were based on marriage being both-sexed.

If the relationship type you have in mind, and which you'd estabish in law, has no essence, no core, no definitive legal requirements, then, you'd have nothing around which to draw just boundaries. It all becomes arbitrary and untethered to reason, morality, or even the rule of law as we have come to understand it.

The essence of marriage is 1) integration of the sexes, 2) contingency for responsible procreation, and 3) the combination of these into a coherent whole.

The man-woman criterion is a legal requirement; as is the marriage presumption of paternity. Neither applies to the one-sex combination of people -- gay identified or not.

And marriage is a social institution -- it is a coherent whole and not a bunch of bits and pieces all made optional. The institution hangs together around its core or its essentials. Each couple enters the institution, they do not redefine it for all of society. They consent to marry -- to become husband and wife.

There is no good reason to act as if all unions of husband and wife are one-sexed. But that is the effect of merging the nonmarital one-sexed arrangement with the conjugal relationship type. It is based on a list of false equivalencies.

If there is great merit in a relationship status, at law, for a type of relationship that is gaycentric, then, this should be defined by the legal requirements. If it is about formation of families, about caretaking, about "love", then, I doubt it can exclude the much broader category of nonmarital arrangements -- most of which are both-sexed.

If we treat nonmarriage as marriage, then, marriage is demoted from its preferential status. This is why Patterson's move is corruptive of the marriage culture. But he did not start that corruption.

For that matter the SSM campaign's part is only the latest in the various attacks on the social institution's special place in society.
5.31.2008 1:57am
Randy R. (mail):
Dangermouse: "Go ahead, crap all over marriage. It wasn't about love, it was about social status. It's not about raising kids and starting a family, it's about power. It's not about providing for your wife and loving your husband, it's about what's good for YOU."

Chill. You should read what people write instead of assuming you know what they wrote.

What many people have written is that IN THE PAST, marriage was often not about love, but about property inheritance, social status and so on. For at least two thousand years, few monarchs married for love. Usually, their marriages were arranged.

What these same people have also written is that marriage today is not about any of that, but is about two people loving each other. For some, it's ALSO about raising kids together (though not for all). and when two people love each other, they want to care for each other and provide for each other.

Is this so hard for you to understand?

And once you understand that, then you understand that two gay people, who are in love, merely want to do the exact same thing that you want to do, which is to get married.

It hardly makes sense that we would want to destroy an institution once we've joined it. The best to way to stregthen any institution is to get people who are actually keen on it to be a part of it.
5.31.2008 2:00am
Chris Bell (mail) (www):
Chairm:
Patterson's decision is purely political.

He authored a change by which NYorkers must go out-of-state to do what is impermissable within NYS.

He did so not because of comity with those other states which would be SSMing NYorkers. NYS can't return the favor.

Well, 16-year olds can't marry in NY, but they can elsewhere. (I am just picking numbers, but we could look up real numbers.) If the kids go elsewhere they can get married and then come back to NY and be married, even though they could not have gotten married in NY.

Notice that your comment fits that situation as well. Yet both situations are now the law in NY.

and I don't know what you mean by the decision being "purely" political. NY had already lost lawsuits on the issue. A good Republican Governor would have done the same thing Patterson did today. The only difference is that a Republican would have claimed that "activist courts forced his hand!" while Patterson pretended that this was all his idea.
5.31.2008 2:01am
Randy R. (mail):
Charm:"The essence of marriage is 1) integration of the sexes, 2) contingency for responsible procreation, and 3) the combination of these into a coherent whole. "

That's very charming. Where did you get it? Or did you just make it up? is it a legal requirement to obtain a license in any state? If not, why not, if it's the essense?

I especially like the part about responsible procreation. What would irresponsble procreation look like? What happens if a married couple have irresponsible procreation? Would that nullify a marriage? What would you have to prove, and who would bears the burden of proof?

What is a 'coherent whole"? What does that mean? What if the two people combine in some fashion, but only partly, not whole? What if it's an incoherent whole? Then what?

There is enough here to keep divorce lawyers in business for many many years!
5.31.2008 2:06am
Chris Bell (mail) (www):
If the relationship type you have in mind, and which you'd estabish in law, has no essence, no core, no definitive legal requirements, then, you'd have nothing around which to draw just boundaries. It all becomes arbitrary and untethered to reason, morality, or even the rule of law as we have come to understand it.


Sure it does. Here's a limit for ya, "The two people must be of reasonable age." See, it's easy. I would also include "the two people must be in love" but I think that could only be enforced socially.

Besides, straight people get married for tax reasons. They pass all the legal requirements....

The essence of marriage is 1) integration of the sexes, 2) contingency for responsible procreation, and 3) the combination of these into a coherent whole.

I like that list. I particularly like the way that 5th graders would look at you funny if you tried telling them that. Picture his sad little face, "I thought it was because people were in love?"
5.31.2008 2:07am
Chairm (mail):
Mark F blurted:


I'm sure some people think that no man with a "drop of nigger blood" can validly marry a white woman. That is their opinion, it has nothing to do with the law.


I quoted him directly because we should dwell on what he just blurted out -- in favor of SSM.

There is one human race and there are no subspecies of humankind based on the color of skin pigments or the bumps on the head or "purity" of blood. That is the objective truth.

The nature of humankid is two-sexed, the nature of human procreation is both-sexed, and the nature of human community is both-sexed.

Marriage is foundational for civilization. It unites man and woman both privately and publicly and even beyond the domesticity of family formation. This arises from the two-sexed nature of humankind.

The contingency for responsible procreation is a set of principles of which the first is that each of us, as part of a procreative duo, is intrinsically responsible for the human life we bring into the world (barring dire circumstances or tragedy). This is built-into marriage and makes of it the most pro-child institution we have.

The family, founded on the conjugal relationship, is the first community -- the basic building block of society -- and as such it is both-sexed. Marriage is not sex-segregative but integrative.

The racist system that Mark referred to was unjust because, among other reasons, it pressed racist identity politics into marriage laws.

Some may think that selectively segregating the sexes on the basis of racist identity is somehow the equivalent of integrating the sexes, but that doesn't hold water. Not culturally and not legally.

Some may think that selectively segregating the sexes under the auspices of the social institution which integrates the sexes is a-okay if done in the name of a different kind if identity politics -- that of gay identity politics -- but that is fatal to the analogy proposed with "interracial" marriage.

Racist categories are far more superficial than sex categories and far less relevant to the core of marriage than just about anything that has been put forth by SSMers in the name of the SSM-merger.

In fact, for far too many SSMers (but not all), the central point is to innoculate gay identity politics from opposition. That's a nonmarriage use of marriage. And while some may think it is much more benign than the racist identity politics, it still remains an unjust use of marriage for nonmarriage purposes.
5.31.2008 2:10am
Chairm (mail):
Chris Bell, okay we can all enjoy a little levity. Thanks.

You said:

Here's a limit for ya, "The two people must be of reasonable age." See, it's easy.


That is not a limit.

To illustrate: Related people cannot marry. But some can and do. Closely related people cannot marry. But how close is too close?

The basis for the line-drawing is the core of marriage, as I described it above. The marriage presumption of paternity makes of marriage a public sexual union of man and woman. Concerns about the integrity of the family, due to sex integration and responsible procreation, apply on both to the particular couple and to the social institution itself.

You would use the example of "reasonable age". Societies have generally used that as the basis for consent criteria. And we could discuss how all kinds of exceptions are made due to conjugal relations, pregnancy, and so forth that are described in euphemistic terms even in courts of law.

We still return to the question: To what does one consent -- and how is consent subject to the "reasonable age" limit?

As for grade school children, marriage is about babymaking and men and women make babies. If we want to explain it, we can. But I did not expect to be asked to prepare the adults here for such discussions with children.
5.31.2008 2:18am
Chairm (mail):
Randy, your questions are rather frantic and rushed.

Man-woman criterion. Sex integration.

Marriage presumption of paternity. Contingency for responsible procreation.

Now, if you would like to dismantle these legal requirements, then, okay do so forthrightly.

For example, please state how segregation of moterhood and fatherhood is superior to integration. For that would be the default position if we treat all unions of husband and wife as if they were one-sex-short.
5.31.2008 2:25am
Chairm (mail):
Chris Bell said:


NY had already lost lawsuits on the issue. A good Republican Governor would have done the same thing Patterson did today. The only difference is that a Republican would have claimed that "activist courts forced his hand!" while Patterson pretended that this was all his idea.


I concede that the NYS judiciary is a mess especially in family law.

The pro-SSM lawsuits, however, are examples of how this mess has been conducive to judges injecting their political opinion into their decisions. You may see this for the better, at least in the instance of SSM, but I find it corruptive of the legal system. That's been going on for some time now, so I don't pretend to place this all at the feet of the SSM advocates in courts.

Nonetheless, Patterson's political decision was based on the politicized decisions that came from the lawsuits. I know, you may think that a judgement is a judgement is a judgement and all is right with the world.

I still look to the process and find it has been abused on this matter of the SSM-merger.

Patterson's decision is purely political because it is his alone -- with a nod to the political opinions of the judges on these lawsuits. That nod does not diminish the political source and the political primacy of what he has done.
5.31.2008 2:32am
Chairm (mail):
Randy said:


So there are no gay marriages occuring in Massachusetts? Or in California? well, then what's all this fuss about gay people getting married?


To repeat: If, however, you base your claims on the Goodridge opinion, then, you remind all of how corruptive the courcentric approach of the SSM campaign has been on all three branches of government in the state of Massachusetts.

And I'd add the same about the recent CA Supreme Court opinion. These judges have strayed from the restrained role to which they were appointed. Our system of government depends on restraint from all branches of government, and from The People as well. That's what keeps the framework solid.

Instead we have all this hacking and chopping at the pillars of our liberties and form of governance. No matter how much you might value the SSM reform, this is no way to go about it.

The end does not justify these means.
5.31.2008 2:43am
Chairm (mail):

New York typically grants comity to marriages that its own statute doesn't allow


But these are nonmarital arrangements mistakenly labelled "marriages".
5.31.2008 2:47am
Randy R. (mail):
"Now, if you would like to dismantle these legal requirements, then, okay do so forthrightly. "

All I did was ask a number of questions. If they are rushed, then please, take your time to answer them.

If they are legal requirements, then please idenify where they exist in any state statutes. Of course you can't, because they are NOT legal requirements -- they are something you just made up.

But at least you admitted that gay people are in deed getting married in CA and Mass. It took a while to get you to realize reality, but do you see how refreshing it is? It all boils down to this: gay people are getting married, but you don't like it.

"you remind all of how corruptive the courcentric approach of the SSM campaign has been on all three branches of government in the state of Massachusetts"

Nice. So when the whole kit and kaboodle is against you, you just dismiss them as 'corrupt.' If and when CA rejects the voter initiative in Nov., I suppose you will have an argument that the voters can't allow SSM either?
5.31.2008 12:37pm
jgshapiro (mail):
I am not aware of any state in the union in which gay marriage has been passed by the legislature, much less signed into law by the governor.

The California legislature has twice passed SSM laws, only to have them vetoed by the governor, who said the question should be decided by the courts. (Now that the CA courts have decided in favor of SSM, he says he will respect that decision and won't support reversing it.) So what you have effectively is legislative ratification of the decision of the CA courts (even though it came beforehand) and gubernatorial ratification of the decision of the CA courts afterward. There is a referendum to reverse SSM on the ballot in November (through amendment of the CA constitution), but it will likely fail based on current polling. At that point you will have popular ratification of the decision of the CA courts.

The MA legislature has twice refused to take the action necessary (amending the MA constitution) to reverse the decision of the MA courts requiring SSM in MA. That is effectively legislative ratification of the decision of the MA courts. The MA legislature fully understood that failing to take such action would make SSM permanent in MA. And the people of MA have so far refused to remove the legislators who refused to try and undo SSM. In fact, more legislators who voted to try and reverse SSM were removed than were legislators who tried to reverse it. So there you have popular ratification as well.
5.31.2008 2:38pm
jgshapiro (mail):
That should read:

In fact, more legislators who voted to try and reverse SSM were removed than were legislators who refused to take action to try to reverse it tried to reverse it.
5.31.2008 3:15pm
jgshapiro (mail):
I am struck by the number of people on this Blog (and elsewhere -- see the widely reposted recent video clip from Bill O'Reilly's show here) who argue against SSM purely on the basis of the definition of marriage, the "essential nature of marriage" argument. Even O'Reilly would not go for this argument, and his whole approach to issues is sort of an Archie Bunker approach. His reaction was to tell his guest, you better come up with something better if you want to stop SSM.

I think that the question will ultimately come down to this gestalt question at the ballot box -- on an instinctive level, what do you see a marriage as being, and as more and more gay marriages occur, the argument that SSM is not marriage will seem more and more bizarre.

The evidence of that is right here on Volokh, where even on a legal blog where you would expect to see some level of rationality, the opponents of SSM have given up arguing the timeworn arguments of procreation, monogamy, etc. that have been rebutted at length elsewhere, and have been reduced to arguing that SSM just seems like something else other than 'marriage'.

I don't think you can really persuade someone holding that view otherwise, as it is a sort of an a priori view of the world, and as such, all you can do is vote on the question. But again, I would suggest that as the reality changes and thousands of SSMs exist when the votes are taken, the idea that SSM is just not 'marriage' will have a lot less force to the independents who will have the deciding vote.
5.31.2008 3:46pm
Adam J:
Charm- You're talk about a lack of restraint from Patterson is specious. The executive branch has to make decisions daily about whether to grant validity to out of state marriages. The legislature has been silent on the issue, so Patterson has no guidance from them. Court decisions have upheld the doctrine of comity. There is no option for restraint here, the executive branch either needs to recognize or not recognize the marriage. And it seems like you would prefer an unelected executive official to decide make this decision so that the governor can "restrain" himself. That is pretty undemocratic, the governor's decision increases the executives accountability to the citizens of New York.
5.31.2008 5:18pm
CJColucci:
I confess. It's my fault. I defend the State of New York against lawsuits for a living. Last week I called the Governor and said: "Dave, I'm just too damn busy with other work to take on sure-loser cases where state officials refuse to recognize same-sex marriages validly entered into in other states or countries. Do something so I don't have to." I wish all my clients were as responsive.
5.31.2008 6:04pm