Courts in New York, Georgia block gay marriage

July 7, 2006

I didn’t expect much progress in [tag]Georgia[/tag], but yesterday’s ruling on [tag]gay marriage[/tag] from New York’s highest court was disappointing.

When Massachusetts became the first state to legalize gay marriage in November 2003, gay rights advocates imagined a chain reaction that would shake marriage laws until same-sex couples across the nation had the legal right to wed.

Nowhere did gay marriage seem like a natural fit more than New York, where the Stonewall uprising of 1969 provided inspiration for the gay rights movement and where a history of spirited progressivism had led some gay couples to envision their own weddings someday.

Yesterday’s court ruling against gay marriage was more than a legal rebuke, then — it came as a shocking insult to gay rights groups. Leaders said they were stunned by both the rejection and the decision’s language, which they saw as expressing more concern for the children of heterosexual couples than for the children of gay couples. They also took exception to the ruling’s description of homosexuality as a preference rather than an orientation.

“I never would have dreamed that New York’s highest court would be so callous and insulting to gay people — not in [tag]New York[/tag] — to have a legal decision that treats us as if we are alien beings,” said Matt Foreman, executive director of the National Gay and Lesbian Task Force.

The court’s ruling argued that [tag]children[/tag] are better off being raised by a biological mother and father, rather than by a gay or lesbian [tag]couple[/tag]. As evidence, the court cited … nothing in particular. And the court overlooked contrary conclusions from the American Psychological Association, which recently reported that there is literally no evidence that children of gay or lesbian parents are “disadvantaged in any significant respect relative to children of heterosexual parents,” because … well, the court didn’t say why.

Ultimately, the ruling insisted that changes in this area of the law should come from the legislature, not the courts. That’s a compelling argument, but what happens when elected officials fail to offer equality under the law? Citizens turn to the courts for justice. Unfortunately, people in New York and Georgia didn’t get any yesterday.

As for the New York crowd, they must’ve seen that picture of the Big Green Overtly Plagiaristic Xenophobic Church Lady in the Times…..

  • I don’t believe civil rights can, or will, or should be legislated. Politicians in legislative assemblies are always cowards, always ready to embrace existing prejudices, never willing to rock the boat, desperate to hold onto their seats on the gravy train. Courts are the same if only because they usually feel bound by existing law (e.g., Dred Scott; glaring exception: Brown v Board of Education).

    Gay rights, like other civil rights, have advanced in most cases because an executive (President, Governor, Mayor) felt the need to ban discrimination. Executives who want their jurisdiction to hire the best, without regard to bigotry and prejudice, can issue couragious executive orders. Republicans almost never show such courage, Democrats do so but only rarely. Truman showed courage integrating the Army. LBJ could have removed federal discrimination against hiring gays; LBJ was a coward. Clinton promised to make his first executive act an order banning discrimination against gays in the military; Clinton was a coward.

    It is obvious, from a reasonably long-range view of history, that gays are going to win full rights as citizens, — they’re already doing so in truly civilized nations — if only because the mindless bigots will die off someday. Tolerant nations outcompete bigoted ones. Only cranks and nutcases oppose civil rights for blacks or women anymore. Its very frustrating to know that history is “on your side” even though supposedly intelligent people (well, Georgia excepted) hold you back. Martin Luther King, Jr., summed up this history-based hope and expectation with the simple declarative hymn title: “We SHALL overcome”.

  • The court’s ruling argued that children are better off being raised by a biological mother and father, rather than by a gay or lesbian couple. As evidence, the court cited … nothing in particular.

    I’m quite disappointed by the New York Court of Appeals’s ruling, but your characterization of the holding isn’t exactly right. I think it’s worth noting why yesterday’s ruling isn’t quite as hostile to gay rights as the above characterization suggests, even if the bottom-line outcome is the same.

    In adjudicating an equal protection challenge to a state law, the court’s job is only to determine whether a rational basis existed for the distinction drawn by the legislature. This is a very deferential test, and the legislation will be upheld as long as some rational basis can be articulated; it isn’t even necessary that the proffered rationale be the one that actually motivated the legislative act. As long as there is some rational basis upon which a legislature might have drawn the classification in question, a court may not second-guess the legislative decision by invalidating the statute on equal protection grounds.

    The New York Court of Appeals did not hold yesterday that children are better off with one male and one female parent; rather, it held that a reasonable legislature rationally could have made such a determination, and that since a rational basis for the exclusion of same-sex couples from legal marriage exists, the court may not undermine the will of the legislature by substituting its own judgment. This is a subtle difference, but an important one. The court isn’t saying here that the legislature is right, or that it agrees with the distinction drawn; it is saying only that the legal distinction in question is not so wildly irrational as to create an unconstitutionally discriminatory standard.

    I don’t agree with the reasoning of the Court of Appeals, but it is important to note that the opinion does not take such an extreme position as this post suggests. I’m currently working on another case that we hope will reach the New York Court of Appeals eventually, which may further define the scope of legal recognition of same-sex spousal relationships in New York. Yesterday’s opinion was certainly a blow to our hopes in that case, but it does not extinguish them entirely.

  • You know, it’s totally amazing. My best friend during childhood from kindergarten on is gay (something that took him 40 years to “come out” to to the people he grew up with) and has been involved in a committed relationship now for 23 years, which is 3 times longer than the longest I have ever managed, and also longer than any of the (several) marriages of most of the kids he grew up with (with, I think, two exceptions who are still married to their first spouse) – only that, but he did it in Texas for chrissakes! – and yet his successful relationship is “meaningless bullshit” to these morons who sit on the NY Supreme Court, while my three failures are “just fine.”

    Yes indeed, Blackstone was right: “the law sharpens the mind by narrowing it.”

  • What James Dillon says. With a few words of my own.

    What I thought remarkable about the majority’s decision was its flaccidity. [Yeah, I know.] It did not try to defend the status quo, and easily conceded that it might be on the wrong side of history. More to the point, it didn’t try to “sell” the opinion. Judges, like baseball umps, almost never act indecisive, even in a close call. But the opinion of the court was meek and tentative. The concurrence and dissent were far more typical (and better, especially the dissent) judicial craftsmanship.

    I don’t view this case as a long-term defeat for gay rights. At most, it is a mitigated defeat. My guess is that the court, if asked to recognize a gay marriage contracted elsewhere (ironically, this happens mostly in the context of divorce), will do the right thing.

  • I don’t view this case as a long-term defeat for gay rights. At most, it is a mitigated defeat. My guess is that the court, if asked to recognize a gay marriage contracted elsewhere (ironically, this happens mostly in the context of divorce), will do the right thing.
    This is actually the case that I’m working on; we’re arguing that New York should recognize a Vermont same-sex civil union as creating a legally cognizable spousal relationship in New York. As I noted, we’re still hopeful that we may ultimately prevail on that issue.

  • #2 – I agree that eventually gay marriage will be recognized as pretty much equivalent to a marriage between a man and a woman. However, I think the government is always going to have some interest in “traditional” marriage, because those unions can produce children. Our government loves social engineering experiments, and frankly, if our population ever starts dwindling like Europe’s is, we’ll be in trouble. So they will continue to use the tax code and other means to encourage reproductive behaviors of various sorts, as they see fit.

    If I were gay, I think that it might be a path of lesser resistance to pursue the civil union approach. There are a lot of gays who want gay marriage legalized and they want it now! But the more you shove that down the throats of social conservatives, the more resitance you are going to get. Conservatives, especially conservative Christians, believe that marriage was first a religious ceremony, which the government then decided to regulate. As such, they don’t believe that government has any say in what their religion defines as a marriage. And they are correct. So what we already have here is a schism between the secular and sacred functions of marriage. Why not make the distinction formal by separating those functions, and have a “civil union” that is recognized by the state, and upon which the state can then confer all appropriate protections. Businesses that want to be competitive will extend benefits to partners in civil unions much as they do to married couples. In fact, many businesses are way ahead of the government on this issue.

    So, by invoking a “civil union”, you completely side-step the issue that offends most conservative Christians (there will be some far-righties that hold out opposition, but they’ll be a vocal minority), and you grant gays what they really want, which is a legal status that protects their partners and gives them the rights that straight marriages have. Furthermore, in a couple of decades, the terms will become almost interchangeable anyway.

    In conclusion, I think that by using “civil unions”, you’ll achieve in 20 years what it will take 50+ years to achieve if you insist on having gay unions recognized as marriages and equivalent to straight unions.

  • “Ultimately, the ruling insisted that changes in this area of the law should come from the legislature, not the courts. That’s a compelling argument, but what happens when elected officials fail to offer equality under the law? Citizens turn to the courts for justice.”

    I disagree; when elected officials fail to deliver what you want, you should work to elect officials who better agree with you.

    It’s true that the courts sometimes do bring about change by reinterpreting laws, but we should be glad that this is the rare exception. It’s a tempting shortcut, but it’s not how our system of government is set up to run.

    The court isn’t really giving an opinion on what the best law would be, only what the existing laws say and what the legislature intended. The ruling just says that the legislature has historically meant one thing by “marriage” and that the courts can’t redefine it against the will of the legislature, and invites the legislature to do so. Granting that New York is a very progressive state, is that unreasonable to ask? Elliot Spitzer has made it part of his platform. A majority of the citizens of New York will sort this out soon enough.

  • However, I think the government is always going to have some interest in “traditional” marriage, because those unions can produce children. – Addison (#7)

    I need to call you on this one. Gay and lesbian unions can produce children, too, though not in the traditional way. There is in vitro fertilization, surrogate mothers, retaining custody of a biological child after one divorces and comes out, and the old stand-by of adoption. I don’t have the numbers handy, but I’ve read somewhere that between 30 and 40% of lesbian couples are raising children, and something like 15% of gay male couples are.

    If the NYSCA is interested in protecting children, then they should at least recognize the need to protect these families just as much as “traditional” families (which are becoming rarer with each passing year).

  • “but what happens when elected officials fail to offer equality under the law?” – CB

    Well, we could vote them out of office?

  • I agree that eventually gay marriage will be recognized as pretty much equivalent to a marriage between a man and a woman. However, I think the government is always going to have some interest in “traditional” marriage, because those unions can produce children. Our government loves social engineering experiments, and frankly, if our population ever starts dwindling like Europe’s is, we’ll be in trouble. So they will continue to use the tax code and other means to encourage reproductive behaviors of various sorts, as they see fit. — Addison (#7)

    This really makes me cringe.

    1) “.. government is always going to have some interest in “traditional” marriage, because those unions can produce children.” Many heterosexual marriages are childless. Many heterosexual married couples adopt children.

    2) “.. and frankly, if our population ever starts dwindling like Europe’s is, we’ll be in trouble.” We’re in trouble precisely because our population is not dwindling. All of our currently most serious problems can be placed at the feet of the exponential population explosion of the last 150 years. Childless gay marriages are our best hope for survival.

    3) “So they will continue to use the tax code and other means to encourage reproductive behaviors of various sorts, as they see fit.” And, of course, that takes the biscuit.

    Let’s get some of these basic things right before we yak off rubbish. Eh?

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