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.