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.
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4 comments:
I tend to favor the legislative approach to gay marriage, as I honestly believe we are less than a decade away from a rising generation of gay-friendly voters. I don't think it's "academic" to expect the will of the people to trump the courts in most cases, except where egregious denials of civil liberties are cemented in stone for the long haul by legislative tyranny. As passionately as I believe in gay marriage, I don't think that's what we're dealing with here. Once the pendulum of public opinion swings past the tipping point, a few well-timed court battles might be necessary, but I don't think we're there yet.
Ideally, of course, I think we should already have the right to marry one another, but we don't, and I think we should be wise about how we achieve our goals. When that Statue of Liberty wielding a giant cross in Memphis comes to beat us into submission, I want as many allies and voters behind us (so to speak) as possible.
You're missing the exact point of what Judge Kaye was trying to point out - she even quoted People v Onofre, a New York sodomy case. "Disapproval by a majority of the populace ... may not substitute for the required demonstration of a valid basis for intrustion by the State in an area of important personal decision." I.e. just because the majority disapproves of our lifestyle does not mean the court should not protect us from legislation against it.
In addition, what she meant by academic was that she hoped one day the Legislature would change the law to make a decision in a case like this unnecessary. She wasn't belittling the will of the people.
If you're willing to wait ten years to marry the person you love, go ahead and wait. But don't expect the rest of us to, because if we did, we'd be waiting forever. In this life, you can't expect other people (i.e. straight men and women who have no pokers in this fire) to do your work for you. This is a battle that has to be fought in the courts and in the legislature just as much as it has to be nurtured in neighborhoods and in families.
Right on brother. I just typed a long reply but the Preview command didn't work and it got lost.
Short version: Progress takes time and effort, and it is through thoughtful reasoning and diligent work that it takes place. This SCONY Justice is literally stupid for not understanding Loving better, but let's not forget that until Brown v Board of Education, the SCOTUS held that separate but equal was a fine way to teach schoolchildren- for over 60 years.
Keep fighting the good fight. In the meantime, be proud of your heritage- the only Republicans to vote against the Constitutional Amendment were every single Republican Senator from New England.
That's how progress happens- one vote at a time. Judd Gregg voted for the Amendment in 2004, then against it in 2006. That is progress. Slow, yes, but sure.
You're right, I read the 'academic' sentence completely wrong. Thanks for clarifying.
I don't disagree with you substantially. I'm just more optimistic than most about the shifting demographics that I believe will favor us legislatively in the very near future. I've been doing the 'hearts and minds' legwork over The Malcontent and on my own site for a long while, and never miss an opportunity to advocate the cause of gay marriage. Especially now that I have a new love interest...
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