Late yesterday, New York’s State Court of Appeals ruled that our state constitution does not require that marriage licenses be given to gay couples. Here is a New York Times article. Oddly, it was first bylined by gay reporter Patrick Healy – but now it’s bylined by someone called Anemona Hartocollis. Weird. Here is a link to the court documents.
Reading the decision is really eye-opening. The majority opinion, written by Judge Robert S. Smith, is a collection of hedging sentiments, equivocating logic, and responsibility dodging. For example, Smith simultaneously supports the reasoning behind Loving vs Virginia, the 1967 landmark Supreme Court interracial marriage ruling, while at the same time using this language:
“The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of a different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant, or bigoted. We do not so conclude.”
If you replace “same-sex” with “interracial,” and “different sex” with “same race,” it would still be true. Did the Supreme Court make that decision “lightly”? Does any court ever make a decision that way? Say what you will about either side of this issue – no one is taking it lightly.
Smith also hedges when addressing the issue of whether it is fair to allow non-childbearing straight couples to marry, as much of his logic is based on the fact that marriage is for the procreation of children.
“While same sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing.”
Um… Intrusion? Arbitrariness? Line-drawing? Wow, straight people really don't understand irony. Smith is saying that because the issue is complicated and hard, we can’t get into delineating between child bearing and non-child bearing couples. But with gay couples, who are uncomplicated and easy, delineate away! And who was just talking about how we shouldn’t do anything lightly?
Chief Judge Judith Kaye’s dissent reads like the Gettysburg Address, in comparison. It’s clear, it’s fair, and it’s unequivocating. Quite frankly, it’s downright touching. Because she repeatedly hammers home the only point that matters: We are giving certain citizens rights that we are denying others. “The long duration of a constitutional wrong cannot justify its perpetuation,” she writes, “no matter how strongly tradition or public sentiment may support it.”
Kaye also waggles her fingers at the court for tossing the question to the legislature, thereby shirking “its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic.” She closes with the flat statement: “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”
In other words, karma’s a bitch, judges. And she works out.
For an interesting side note, see here.