Maybe No SSM Right in N.Y.

The National Law Journal provided a quick analysis of the New York Appeals Court questioning in the issue of whether the City can issue marriage licenses to same-sex couples. The article says it turns on whether there is a fundamental right for same-sex couples to marry.

The Appellate Division, 1st Department, panel "voiced skepticism during oral arguments....The five-judge panel repeatedly suggested that no fundamental right to same-sex marriage exists..." The implication is that lawmakers need to clarify the rules.

The City's attorney, Chief Assistant corporation Counsel Leonard Koerner came on heavy in claiming that Lambda Legal's comparison with a case (Loving v. Virginia, 388 US 1, S.Ct. 1817) deciding anti-miscegenation to the current issue. Instead, he cited a Minnesota rejection of a license to two men in Baker v. Nelson, 409 US 810. There, the court refused, basically saying there was no "substantial federal question."

Note: The Baker link opens a small PDF. You need a compatible reader or plugin.

Baker's decision concluded, in part, that the 14th Amendment's due process clause "is not offended by the state's classification of persons authorized to marry." Also, "Loving does indicate that not all state restrictions upon the right to marry are beyond the reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

Wednesday, Koerner stated, "Baker is not just a decision out of Minnesota. It is a controlling decision." He called efforts to gain rights to same-sex marriage through courts "understandable and admirable," but an "attempt to recast the definition" of marriage.

The judges then interrupted Lambda Legal's Susan Sommer. They asked if this was a matter for the legislature. They also repeatedly asked for comparable federal precedence, which she could not provide.

The short of it, from this view, is that the New York Court is likely to throw this back to the legislature.