Lost in Albany, Looking for SSM

The kindest view of yesterday's New York Court of Appeals decision tossing SSM back to the legislature is that it was "an unfortunate misstep." That was the ending phrase in the dissenting opinion Chief Judge Judith S. Kaye.

The ruling in a PDF version is here. The gist of it is that a four-to-two decision was not convinced that SSM is a civil-rights issue. Instead, they relied on such non-legal, emotional bases as "the common-sense premise that children will do best with a mother and father in the home."

In abrogating their responsibility, the majority suggested:

We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made.

Our view is that Kaye must have 20 or 30 IQ points on Judge Robert S. Smith, who wrote for the defense. She clearly graduated from law school too.

Smith's actual wording is offensive on many levels, both patronizing and devoid of legal reasoning. Kaye's dissent alternately took a scalpel or a machete to the majority finding.

For state law, she tromped on the tradition assertion for banning SSM. She noted that marriage has changed both culturally and legally there continually, from the 19th Century law that literally made a wife her husband's property. "The historical record shows that through adjudication and legislation, all of New York's sex-specific rules for marriage have been invalidated save for the one at issue here."

To this case, she elaborated that, "It is no answer that same-sex couples can be excluded
from marriage because marriage, by definition, does not include them. In the end, 'an argument that marriage is heterosexual because it just is amounts to circular reasoning." Indeed, there is much of that in the majority decision. The by-cracky-that's-the-way-it's-been attitude lives in Albany.

Unlike the majority, she found a clear correspondence to anti-miscegenation laws. She also cites Lawrence v. Texas' finding that "...the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

She covers a variety of legal points in her disagreement. Key is that she finds forbidding SSM a violation of equal protection. As she wrote, "...each one of the plaintiffs here could lawfully enter into a marriage of convenience with a complete stranger of the opposite sex tomorrow, and thereby immediately obtain all of the myriad benefits and protections incident to marriage. Plaintiffs are, however, denied these rights because they each desire instead to marry the person they love and with whom they have created their family. ..and thus constitutes
discrimination based on sexual orientation."

It was also in the bizarre class that she even had to address Smith's absurd, repeated argument that marriage was for procreation and that two homosexuals cannot create babies as a unit. She notes that state and federal law permit prisoners who are not allowed sex to wed, and that sterile, elderly and intentionally childless couples can marry and stay married legally.

More to the point, she demolished the majority assertion that the state had a vested interest in encouraging heterosexual spouses to procreate. As she concluded:

...it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State's interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.

She went on that "the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone."

Unlike the majority, she is aware that marriage is about more than babies. It includes a broad and deep range of protections and benefits.

From that point, she tore into the majority's assertion that they were acting in the interest of the children by trying to maintain live-in one-man/one-woman role models. In her words:

The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it.

Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare...

She also bemoans her Court's avoidance of "its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic." She states that the role of the courts is safeguard liberties and offer redress.

Her closing words are clear and prophetic. "The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today's decision as an unfortunate misstep."

Local Note: Short-term, this may mean that New York couples will not be able to marry here, under the Romney/Reilly scheme of using anti-miscegenation laws. In theory, our courts ruling on a case-by-case basis could find that New York law does not forbid SSM, as there is no specific DOMA law there. That is unlikely. Again, we need to look to a progressive governor and attorney general to drive repeal of the 1913 laws. That won't happen with the current crew.

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Tags: massmarrier, same-sex marriage, New York State, Court of Appeals