Friday, July 07, 2006

NY Decision: One-Off or Pattern?

We thought we had done plenty on yesterday's NY State's highest court decision sending the same-sex-marriage issue back to the legislature. However, the New York Times analysis of the ruling's impact is worth a look.

See the basics here and some commentary on the majority and dissenting opinions here.

A highly partisan observer, Monte Steward, president of the Marriage Law Foundation, reveled in what many anti-SSM folk are calling a monumental victory. His gleeful pronouncements included, "When people look back and write the history of this issue, they will view the New York decision as the Gettysburg in this big contest."

In reality, the Court of Appeals majority did not say that New York could not recognize SSM. It ruled that the decision was the legislature's. The Monte Stewards will not be snickering in schadenfreude delight if the lawmakers there enact a civil-union or SSM law in reaction.

However, Steward had a prediction that may or may hold. It is what we all should watch. He said that other judges weighing SSM in their states, including neighboring New Jersey, may feel the influence of the New York ruling. As the Times put it:
Specifically, Mr. Stewart praised Judge Robert S. Smith for refusing to use the racist legacy of miscegenation laws as a justification for extending marriage rights to same-sex couples. Too often, Mr. Stewart said, trial court judges and politicians are cowed by the premise that barring their unions would be the same as barring people of different races to marry.

"It's going to carry a lot of intellectual clout with other judges around the country," Mr. Stewart said.
One lawyer on the other side, Lambda Legal Defense and Education Fund Marriage Project Director Davis S. Buckel, did agree that judges will read the New York ruling. On the other hand, the legally questionable and ham-fisted reasoning in some places of the majority ruling may work to opposite effect in other states. "In particular, (SSM supporters) noted one section suggesting heterosexual couples need marriage to be preserved as a way to shore up their faulty relationships and protect their children who might suffer in broken-home situations," he said.

Buckel went on to suggest, "It's a mess of a decision that in the end makes a very weak argument: That you can justify barring same-sex couples from marrying because of the unstable relationships of heterosexual couples." Likewise, Human Rights Campaign President Joe Solmonese was as surprised as Chief Judge Judith S. Kaye that the N.Y. majority tied the decision to the ability of some heterosexual couples to procreate as some evidence they were superior at raising children.

He and many who have seen the ruling were also astonished to read references to homosexuality as a choice, a "sexual preference." Solmonese said of the opinion, "If nothing else, this ruling will cause people —— gay and straight alike —— to reflect on this judge's unusual view of gay marriage and then come to their own conclusions."

The Times does not say so, but from this vantage, Steward's hopes of snuffing U.S. SSM are overly optimistic. The majority ruling may well not convince a single other court to vote its way. We'll have to see whether the N.Y. legislators react by providing the civil-rights protections that N.Y. citizens have come to expect. After all, the Court of Appeals said it was their decision.
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