On Thursday, New York's highest court ruled that the state constitution does not require same-sex marriage, while the Georgia Supreme Court upheld that state's constitutional ban on gay marriage and any state recognition of same-sex relationships.
These are defeats, but I hope they serve to wake up judicial strategy advocates that turning to the courts to mandate gay marriage is both bad politics (provoking voter backlash when courts rule our way against overwhelming majority opinion) and not a sure bet.
In New York, advocates asked for a finding of a right to marriage and nothing less, hoping for a Massachusetts-style judicial victory. But Massachusetts is not proving to be a model for anywhere but Massachusetts. If they had asked for a ruling instructing the legislature to grant the statewide benefits of marriage to gays in a fashion to be devised by the legislature (such as through Vermont-style civil unions, now provided in several states), it might have been a happier day.
More. Gay Patriot West observes:
Had New York's Court of Appeals ruled in favor of gay marriage, the decision would have rallied gay marriage opponents and strengthened the case for a federal constitutional amendment. Now that argument is considerably weakened. And the option still remains for advocates of gay marriage to make their case before the legislature-and the people to whom the elected legislators are responsible.
And he's right.
Ryan Sager concurs:
Supporters of gay marriage won a resounding victory yesterday-even if they don't know it yet.
Still more. According to a Human Rights Campaign statement:
The court's archaic reasoning is rooted in ignorance and completely contradicted by the facts of today. ... The court threw the expert advice of child welfare professionals and years of scientific evidence out the window with its ruling against fairness.
But the court's role is to interpret the state constitution, not to create new law by decree because liberals want it and believe it would be "fairer" and more resonable, but lack the support of the electorate or the legislature.
Meanwhile, as Instapundit notes, Howard the Hypocrite Dean called the reasoning of the New York Court "bigoted and outdated," but just a few months ago, when sucking up to Pat Robertson, he himself trumpeted his party's support for marriage only between a man and a woman. Better watch it, Howard, or you could give shameless pandering a bad name.
Yet still more. A backlash even in Massachusetts?
25 Comments for “Out of the Courts.”
posted by Mike German, SDiego on
My take: Disappointing, but not surprising, given arguments like, “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. … New York’s statutory law clearly limits marriage to opposite-sex couples. The more serious question is whether that limitation is consistent with the New York Constitution.” That whopper came from the amicus brief of NGLTF, unless I’m mistaken as to its source. With amici like that, who needs enemies?
The majority then return to their opening theme: “We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.” Phrasing the issue as whether NY’s Constitution compels, not just permits, almost makes the outcome preordained.
But I continue to wonder why what follows, if granted equally to us under some name other than “marriage,” is anything less than substantively equal: “Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.” In fact, apart from the tax advantages, which too many gay “activists” have deliberately chosen NOT to pursue because they see them as some sort of “backsliding,” most of these benefits are already part of domestic partner benefits in states like CA that have them.
The majority’s analysis under traditional rational basis grounds is proper, reasoned and just – and thankfully free of the polemics found in other such decisions, the briefs leading up to them, or the petulant press releases following them. Again, it is not what NY’s Constitution compels, but what it and its legislature allows as a result of rational debate. The same applies to its finding that the Legislature could find that heterosexual parenting is optimal, and that fostering such parenting by limiting marriage to such couples is proper. Again, the Legislature could just as well have adopted the Brandeis-brief arguments and their somewhat sparse support, but just because it chose not to – assuming they were provided with them in lieu of litigation – does not mean it acted irrationally or discriminatorily.
Disappointing as it may sound, the historical fact – marrying monks and other alleged examples notwithstanding – is that the concept of gay marriage is NOT historically rooted in our culture and traditions. There is no error in limiting the definition of the fundamental right to marry to heterosexual marriage; those are the kinds of marriages that caused the marriage right to be recognized as fundamental in the first place. Of all the various legal regimes, constitutional interpretation must be the most careful and exacting, lest it be overextended and abused; see Roe v. Wade, which despite its slim underpinnings and wide overbreadth does not undo my belief that the right to reproductive choice is a fundamental one. We see many examples of this in the law, as in the focus in qualified immunity analysis on the nature of the specific right claimed, not its generalized sense. The majority’s defining the right this way is consistent with this analysis – and does not preclude the Legislature from expanding the scope of marriage should it choose to.
Thus, the majority was correct to state that “Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against State intrusion on intimate, private activity. They seek from the courts access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples.” The distinction is a legally valid one, however distasteful it may be to even those in the legal profession. It should not be cause for giving up the fight, however; just a lesson in picking one’s battles better and deploying the forces at your command with greater skill – if not in declining assistance from unskilled irregulars as well.
posted by Northeast Libertarian on
Actually, the most interesting part of the judgment was the notion expressed that childless heterosexual couples cannot be trusted to remain childless and must thus be “protected” by marriage.
The court came to a rather tortured set of reasoning in order to avoid issuing the clear ruling. I am not surprised by this — New York State’s court is political, and the “it’s the legislature’s job to address this issue” cop-out has been used in a couple of other situations.
The irony is that Miller’s reasoning is still dead wrong. In states which seek to implement gay marriages through legislative action, such as California, supposed “pro-gay” Republicans like the Governator veto the law and say it should be handled by the courts. And in states where gays seek redress through the courts, the courts say the legislature should handle the situation.
Further, civil unions as a “compromise step” continue to have little to no utility outside of the few bennies provided by state governments. You still cannot jointly file taxes with the feds, or get a green card for your foreign spouse, or leave your Social Security payments to him/her if he/she is the same gender as you are.
Gay folks have to face up to the fact that until we actively penalize those who penalize us, we’re going to get nowhere. That means high profile decisions not to invest in anti-gay areas, high profile withdrawals of funding and endorsements of political candidates like Schwarzenegger, and high profile withholding of charitable aid and other donations from heterosexual people who are married — noting that since marriage isn’t recognized for gays, it’s imperative that aid go to gay people first who cannot get state assistance.
posted by Lurker on
“Gay folks have to face up to the fact that until we actively penalize those who penalize us, we’re going to get nowhere. That means high profile decisions not to invest in anti-gay areas, high profile withdrawals of funding and endorsements of political candidates like Schwarzenegger, and high profile withholding of charitable aid and other donations from heterosexual people who are married — noting that since marriage isn’t recognized for gays, it’s imperative that aid go to gay people first who cannot get state assistance.”
I concur.
posted by Anonymous in NY on
Mike– I\\’m not understanding some of what you\\’re saying. How in the face of existing scientific evidence (and the existing law in the State of New York permitting gay adoption on the same basis as straight adoption) can a legislature rationally determine that children are better off raised by a straight couple than a gay couple? We\\’re past that issue in NY. Why are you retrading it?
And how does denying gay people the right to marry further any interest in promoting the welfare of children, assuming that were in fact the goal of the prohibition? It doesn\\’t help the children of married straight people (already protected). It doesn\\’t help the children of unmarried straight people (a law which required unmarried straight people who give birth to immediately marry might help these children, but one which simply prevents another class of people from marrying certainly does not). And it most certainly doesn\\’t help the children of gay parents.
Perhaps the best plaintiff in the next lawsuit is the adopted child of 2 gay people. The government of New York, having given his parents the right to adopt him, denies his parents the right to marry, thereby denying him the same rights afforded to the children of married people.
posted by Northeast Libertarian on
Remember, again, the NY court is a political court. They didn’t want to interpret the law so much as get a political hot potato off of their desks so they can return to more comfortable things. The conclusion was foregone. . . the only question was what “logic” they’d use to justify it.
posted by Sacramento Pete on
“Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against State intrusion on intimate, private activity. They seek from the courts access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples.”
Ignoring the 20% of gay male couples who have children and the more than 30% of lesbian couples who have children? We already have families. Why the courts refuse to recognize them is the question.
posted by Northeast Libertarian on
They refuse to recognize them because statist “recognized” marriage is essentially asking the government to structure and run your family for you. Gay people would be much better off joining forces with single people and moving to get the government out of the marriage business and open up the exclusive “rights and benefits” of government marriage to all people — married or single, gay or straight.
posted by Tom Scharbach on
NEL: “ … statist “recognized” marriage is essentially asking the government to structure and run your family for you …”
The court’s logic was odd, almost to the point of “Through the Looking Glass” parody, but the court’s logic supports NEL’s observation that, at least in the view of the court, “marriage is essentially asking the government to structure and run your family for you.”
In this regard, I was struck, in particular, by the “straight people are too irresponsible to have children without government supervision” rationale:
“the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. … The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.”
Certainly, a strong argument can be made that straight people are irresponsible sexually and in relationship. About a third of our kids are born outside of wedlock. Straight people do not seem to be able to sustain long-term relationships, even with help from the government — about half of the straight marriages end in divorce. A child born into a straight family has a better than 50/50 chance of living with both biological parents through childhood.
All of this is true enough. The legislature could rationally conclude that straight people have proven that many, perhaps most, are not responsible enough to bear and raise children.
The next step in the court’s logic strikes me as very dangerous, because it suggests that the legislature could also rationally, and legitimately, conclude that it is the government’s role to erect supports for, and constraints upon, straight relationships to mitigate the damage.
In any event, it is interesting, is it not, that the court suggests, by implication, that gays and lesbians are responsible and mature enough to have and raise children without the props of marriage, while straight people are not?
It is a page right out of “Through the Looking Glass” — the court concludes that a rational legislature could conclude that the benefits of marriage can be denied to gays and lesbians because they are more suited to marriage than straights.
posted by Mike German on
NEL makes a good point about the buck-passing between the executive, judicial and legislative branches, but CA is not NY and NY does not, I believe, have a constitutional amendment limiting marriage to heterosexuals as CA does. In NY, the job’s for the legislature; in CA it’s for the courts given the existing conflict in laws already on the books, so the distinction is grounded in fact.
ALL courts are political, and it does no good to criticize our proven friends like Gov. Schwarzenegger just because he, like so many of his colleagues on the opposite side of the aisle, vetoed a gay marriage law. It is without question that Gov. Schwarzenegger is THE single most gay friendly Governor sitting today – he has signed more gay friendly-legislation than any other chief executive in the US – and to single him out for doing what so many others have done is ultimately political as well.
I continue to hold that where full equality on taxes, immigration and social security issues, among others, is the case, then there’s no substantive difference between gay and straight marriage regimes. I have advocated for years that we secure these tax bennies, only to have them rejected by certain self-appointed “gay leaders” as “counterproductive,” whatever that means. Even the Wall St. Journal has been advising us to do the same, but this has been lost, until only very recently, upon most of the marriage at all costs crowd.
Boycotts can be an effective tool, where accurately aimed, but we miss the mark when foolishly firing volleys against supportive leaders like Gov. Schwarzenegger because he differs with some of us on just one point, and one which is hardly recognized as the most important of all the issues in our effort to secure equal rights.
Anon, I agree that perhaps the better case will be that of a child harmed by disparate treatment of his parents’ marriage, as you suggest, if that disparity continues and is not mitigated by institution of the remaining bennies mentioned above. But that, particularly in constitutional litigation, is another case for another day.
posted by Daniel Seitler on
“Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).” Ayn Rand
posted by Jorge on
I’ve only read up to the part just before the Court actually applied the “rational basis” standard, but so far I agree with the reasoning entirely.
The possible interest in encouraging heterosexual child-bearing couples to stay together to raise the kids is kinda moderate-conservative, and not something narrow-minded activists (on either side of the issue) usually think of. I was floored by it because I can’t see any remote way around it. That probably is precisely the reason marriage was institutionalized in the first place.
Judge Smith has turned years of gay rights arguments on its head by pointing out that heterosexual marriage laws aren’t about discriminating against gay couples, they’re about discriminating in favor of child-bearing couples for a special reason. And it’s a damned good reason, too. Just as there’s a damned good reason to begin discriminating in favor of same sex couples, too. Look, gay sexual relationships simply are not at any deplorable risk for “accidental” out of wedlock births. Period. But they are at the same deplorable risk of… what was that expression he used? That relationships “are all too often casual or temporary.” Anyway, something should be done about that. But there really are differences between the two types of relationships. That’s the one rationale that is not bigoted.
I don’t really agree with the other rationale, but I think Judge Smith is right to share in the general skepticism social science researchers implore with regard to their studies. You don’t get slam dunks in social science research. Anyway, his opinion is frighteningly unbigoted for a No-to-Gay-Marriage opinion.
posted by Northeast Libertarian on
The possible interest in encouraging heterosexual child-bearing couples to stay together to raise the kids is kinda moderate-conservative
Nope, it’s big-government socialism at its finest. Essentially, all the Republicans who support such laws have said “I’m too stupid and lazy to raise my family — please, Daddy Government, come and run my life for me and subsidize my living standards.”
Then Daddy Government does, and eventually loses in an election to Mommy Government ala Hillary Clinton, and the same Republicans scream bloody murder about how Hillary thinks it takes a village to raise their kids, and how “parental rights are being eroded in education and other areas.” Uh, yeah, they’re being eroded — by stupid Republicans who put the government in charge of their lives because they hate gays so much.
Not much sympathy here, sorry.
posted by Tom Scharbach on
Jorge: “The possible interest in encouraging heterosexual child-bearing couples to stay together to raise the kids is kinda moderate-conservative, and not something narrow-minded activists (on either side of the issue) usually think of. I was floored by it because I can’t see any remote way around it. That probably is precisely the reason marriage was institutionalized in the first place.”
The way around it is obvious, Jorge. No link exists between the government’s purpose (getting straight folks to marry and stay married) and the government’s action (prohibiting GLBT folks from marrying).
If government has a rational interest in encouraging straight couples to marry for the protection of their children, the government has a rational interest in encouraging gay and lesbian couples to marry for the protection of their children.
The opinion was remarkable because it ignored the necessary link between purpose and action almost entirely. The opinion is one that will be remembered for its dissent.
posted by raj on
Mike German | July 7, 2006, 8:59am |
NEL makes a good point about the buck-passing between the executive, judicial and legislative branches, but CA is not NY and NY does not, I believe, have a constitutional amendment limiting marriage to heterosexuals as CA does.
California does not have a constitutional amendment limiting marriage to opposite-sex couples. The Knight initiative was an amendment to the state’s marriage statutes, not the state constitution, and, presumably be repealed or over-ridden by the state legislature.
posted by Jorge on
Tom: First of all, I wouldn’t even agree that gays are prevented from marrying. On a de facto basis, all laws essentially prohibiting gay marriage (the anti-sodomy laws) were thrown out in 2003. Gays are free to enter any coupling relationship they choose and call it whatever they wish. The only thing that’s at stake here is explicit government recognition of marriage, which I consider an entitlement, although even the Supreme Court doesn’t seem to agree with me on that one.
I think the point you make is a little like arguing that, say, just because couples with kids deserve special tax breaks for their special burden, now all of a sudden, denying any one childless couple a tax break becomes a punishment. All of a sudden, there’s no justification for denying some couples from receiving this tax break because they’re all entitled to fair treatment. It kinda defeats the purpose of preferential treatment if we don’t allow it because some people who happen not to fit into the standards the law was designed for happen not to be treated preferentially.
I honestly don’t think there’s much of an urgent need to protect gay couple’s children from broken homes. They don’t usually get children in the first place without having an intact home. Encouraging something that is already necessary to have children is redundant. Maybe it’s not always the case, but as a generalization, it holds up. With this difference in play, a law recognizing this difference can be put into play.
I really should start reading the dissent. I’ve only heard good things about its author.
posted by Mark on
“The Knight initiative was an amendment to the state’s marriage statutes, not the state constitution, and, presumably be repealed or over-ridden by the state legislature.”
No, I’m afraid it can’t be. California voter approved initiatives cannot be overturned by the legislature according to the Constitution. They can only be found unconstitutional by the California Supreme Court.
posted by Mike German on
Right you are raj. I realized my error in raising Prop. 22 to constitutional stature almost as soon as I posted that and would have corrected it earlier but for lack of an “edit” button, unless I’m missing something on this site.
The question now pending in the California state courts is whether Prop. 22 trumps the SF Superior Court decision allowing gay marriages or vice- versa. The 1st District Court of Appeals in SF is having a marathon hearing session on those issues all day tomorrow, Monday, 7-10-06 and you can watch the oral arguments online. Go to http://www.courtinfo.ca.gov/presscenter/newsreleases/NR54-06.PDF for info.
posted by Northeast Libertarian on
Gays are free to enter any coupling relationship they choose and call it whatever they wish
Great! Let’s just say I’d like to enter into a coupled relationship which I call marriage with a man who is a Mexican citizen, but not an American one.
Let’s say that we’re going to live in my Manhattan apartment, and he’s going to get a job in America just like the Mexican woman who married an American man across the hallway. Now, the government won’t grant him a green card like they did to the opposite-sex couple across the way, but we’re free to live together until the INS storm troopers kick down the door, expel my (hypothetical) spouse from the country, and then imprison me for 25 years, right?
Gosh, this new spirit of freedom in the Neoconservative Era is really a breath of fresh air! Hallelujah!
posted by Northeast Libertarian on
California voter approved initiatives cannot be overturned by the legislature according to the Constitution
However, it’s commonly recognized that a statute cannot forbid the passage of another statute in the future. The only authority which prevents a statute from being implemented in the future is the Constitution. The Knight Amendment is unconstitutional because it not only amends an existing law, but also bans the state from creating statutes to address other issues. Only a state constitution can do this.
posted by Tom Scharbach on
Jorge: “Gays are free to enter any coupling relationship they choose and call it whatever they wish.”
Gays and lesbians can be married and are married without government recognition.
I know several couples who are married under Jewish law, and by my lights they are married notwithstanding the government’s failure to recognize the marriage. The same is true of gay friends of mine in Canada, who are married despite the fact that our government will not let them cross the border as a married couple, requiring, instead, that each declare themselves single. Conversely, I know lots of straight couples, remarried under civil law, who are not married under Catholic religious law, and these couples are not married in the view of the Catholic Church, notwithstanding the fact that the government recognizes their marriages.
Jorge: “The only thing that’s at stake here is explicit government recognition of marriage …”
And government recognition is what this fight is all about, in a narrow sense.
But that begs the question, to my mind.
The battle underlying the fight is a battle over the Constitution of the United States and the constitutions of the several states.
The constitutional battle is over what “equal protection of the law” means in our society, and whether our constitutions can and should be amended to expressly exclude a group of citizens from “equal protection of the law” in the case of marriage.
Jorge: “… which I consider an entitlement, although even the Supreme Court doesn’t seem to agree with me on that one.”
Zablocki v. Redhail is probably the case you are alluding to:
“In evaluating 245.10 (1), (4), (5) under the Equal Protection Clause, “we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected.” Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that “critical examination” of the state interests advanced in support of the classification is required.”
The Supreme Court considers marriage a “fundamental right” for the purpose of equal protection analysis. I don’t think that there is much doubt about it any longer.
I wonder if you might be confusing marriage with the benefits conferred by the state upon citizens who are married. Marriage itself is a fundamental right, in the view of the Supreme Court, but the particular benefits conferred upon married couples. There may or may not be sound reasons for heaping economic and legal benefits upon married couples, but the benefits are, as you put it, “entitlements” rather than constitutional rights.
Quite a number of theorists have pointed out that it would make more sense to detach the benefits conferred upon married couples from marriage, and instead align the benefits with the underlying need — that is, take the benefits relating to child-rearing and confer them upon all parents, married or not, rather than tying them to marriage.
I favor that view, but I’m not naive enough to think that it is going to happen. Marriage welfare is much too entrenched in our system of laws to be rooted out at this point.
But I think that it is important to remember that underneath the fight about marriage is a battle about our constitution. I think that it is an important battle. If we establish the idea that “equal protection” means “equal protection for some, but not all”, we will have gutted the principle of “equal protection”.
posted by Mike German on
The oral args in the California cases are underway and fascinating. And on the opposite coast, the AP is reporting that MA voters will have the chance to override their Supreme Court’s allowing gay marriages via a constitutional amendment. Interesting turn of events.
posted by Northeast Libertarian on
The MA voter initiative is not a done deal yet. The legislature still has to vote on whether or not to put the question on the ballot.
posted by raj on
Mike German | July 10, 2006, 11:58am |
Don’t believe everything that you read from the AP. It is true that the proposed constitutional amendment requires only 50 votes (25%) of the state legislature sitting in the Constitutional Convention (ConCon) in two successive sessions, but it is also the case that the proposed constitutional amendment is item #20 on the ConCon’s agenda, and the ConCon may very well be gaveled to a close by the leadership before it can be brought to a vote. Moreover, there needs to be a quorum (i.e., 101 members) in order for it to be brought to a vote, and all that need be done by opponents of the amendment is for at least 100 members walk out before the vote, thereby denying a quorum. And there is nothing that anyone can do to force a vote using either strategy. There is no recourse to the courts or to the governor–that issue came up in a ConCon sometime within the last 15 or so years on another issue. Nor is there recourse even to the ConCon leadership.
BTW, it is an odd quirk in the MA state constitution, but even if the proposed constitutional amendment is approved, it would not nullfy marriages that had been concluded before the effective date of the amendment. I don’t know the actual language of the constitution, but essentially a constitutional amendment cannot nullify rights that had accrued prior to the date of the amendment.
posted by Randy R. on
A friend of mine told me that on the front page of the local newspaper in Buffalo, Eliot Spitzer, a leading Democrat running for governor of NY, announced that the very first thing he would do is a sign a bill allowing gay marriage in NY. My friend also stated that this is nothing new, that Spitzer has been meeting with gay rights organizations throughout the state for many years.
I challenge anyone to find a political candidate more friendly to gay marriage than this Democrat.
Additionally, the issue of gay marriage has been bottled up in committee with the NY legislature for many years. Apparently, because of this court decision, however, it’s way to important to bury it anymore, and political analysts say that it will come up for a vote before the entire legislative body. Therefore, even though we lost at the court level, we could very well have a good chance to win legislatively.
posted by raj on
Tom Scharbach | July 10, 2006, 10:53am |
TURNER v. SAFLEY, 482 U.S. 78 (1987) is also of interest in your response to Jorge.
What is interesting in both Zablocki and Turner is that neither of those cases appear to have had a racial component, unlike Loving. Both cases were apparently decided under the “rational basis” test, instead of the “compelling state interest” test required for racial discrimination.