First published February 9, 2005, in the Chicago Free Press.
A New York state judge in Manhattan ruled on Feb. 4 that barring gay marriage violated the state's constitution. The ruling came in the case of Hernandez v. Robles filed against New York's city clerk on behalf of five same-sex couples by the Lambda Legal Defense and Education Fund.
Justice Doris Ling-Cohan's 62-page decision effectively rebutted the city's arguments for prohibiting gay marriage, then summarized: "Defendant has articulated no legitimate State purpose that is rationally served by a bar to same-sex marriage, let alone a compelling State interest in such a bar."
But Ling-Cohan, like Massachusetts' Supreme Judicial Court in its Goodridge decision, went further to find that permitting gay marriage flowed logically from existing city and state policies as well as earlier U.S. Supreme Court and New York Court of Appeals rulings.
Specifically, Ling-Cohan noted that not only had the U.S. Supreme Court ruled in Loving v. Virginia (1967) that every person has a fundamental liberty to choose his or her marital partner, but, perhaps more important for a New York case, that in 1982 the state's Court of Appeals itself said that "matters relating to the decision of whom one will marry" fall with the state-guaranteed right to privacy.
New York's Republican Mayor Michael Bloomberg, a former Democrat, said he supports same-sex marriage but that the city would appeal the decision in order to obtain a final ruling by a higher court, so that people married in New York would not risk having their marriages later declared void.
It is hard to imagine how the Court of Appeals, New York's highest court, could resist the force of Ling-Cohan's arguments. But the court currently consists of four Republican appointees and three Democratic ones and courts can make distinctions and draw lines most people would never imagine.
There is much to welcome and admire in such an expansive and careful - "scholarly" according to gay legal expert Prof. Arthur Leonard - presentation of the issues and the arguments for the legal equality and moral legitimacy of gay relationships.
And yet it's impossible at this point not to have mixed feelings about legal victories for gay marriage. Two reasons: The Federal Marriage Amendment, now renamed the Marriage Protection Amendment, and last November's passage of constitutional bans on court-mandated gay marriage in 11 states.
Support for gay marriage across the nation stands at less than one-third of the voters and even in the most liberal states scarcely rises to a majority. So conservative and Republican-sponsored measures to block in advance any court decisions permitting it have a good deal of popular appeal.
Most of us were surprised, if not by the result, at least by how easily all 11 state constitutional bans on gay marriage decisions were approved by voters last November, obtaining majorities ranging from 57 to 80 percent. Even in Oregon, where voters had a good record of rejecting anti-gay amendments and where gays mounted a well-funded campaign, we could persuade only 43 percent of the voters to support us.
The problem then is that each time there is a court decision supporting gay marriage, it provides more ammunition for the religious right to use in its campaign against the danger of "activist judges" who are "legislating from the bench." And it provides impetus for more state constitutional gay marriage bans.
Over the medium and the long term gays are gradually winning public support for legal recognition of our relationships. That project is assisted by increasingly visible gay couples, gay marriage and civil unions in other countries, and even by the public discussion generated by those same supportive judicial decisions that are simultaneously fueling the opposition.
But in the short term the risk is that we will lose before we can win.
It is tempting to wish for a moratorium on court decision about gay marriage. But that is not going to happen, at least not in more liberal states, and it seems bizarre to urge gays not to appeal to courts for a redress of unequal treatment by the law. It is also tempting to hope that gays and lesbians will become more effective - and far more numerous - in promoting the moral equality of our relationships. But where is the evidence that that will happen?
The latter seems particularly unlikely given the bizarre tactic in several campaigns against gay marriage bans of not arguing for gay marriage at all but instead pointing out that state law already prohibited gay marriage. So voters never heard any actual arguments for gay marriage. No doubt voters decided that since gay marriage was not a good idea, there was no harm in writing that into state constitutions just to be on the safe side. No wonder gays lost.
Perhaps what we should hope for in the short term is that courts like the New York Court of Appeals might craft a way to give gays and lesbians the substance of marriage without using the "M" word, and leave for another day, when we may have better public relations, the question of whether that provides the full equality gays seek.