New York Bans Gay Marriage

[jenahdawn]

http://www.usatoday.com/news/nation/2006-07-06-ny-gay-marriage_x.htm?csp=24

ALBANY, N.Y. (AP) — New York's highest court ruled Thursday that gay marriage is not allowed under state law, rejecting arguments by same-sex couples who said the law violates their constitutional rights.
ON DEADLINE: N.Y. court votes 4-2

The Court of Appeals, in a 4-2 decision, said New York's marriage law is constitutional and clearly limits marriage to between a man and a woman.

Any change in the law would have to come from the state Legislature, Judge Robert Smith said.

"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," Smith wrote.



See rest of article at above link.

[jenahdawn]

(note, I was a theater major, so was my husband, not ALL stereotypes apply, but....)

Your state has the largest theater district in the country and has one of the largest metro areas in the world, hence you will have a bit greater than the 10% "rule".

*sigh*

I believe this is a step back (hopefully only temporarily) for equal rights.

[MLA]

Shame on New York!

[PG-rated]

This is very interesting, since most courts have ruled the other way, if I'm not mistaken.

I wonder how long Massachusetts has to have gay marriage legalized before people start realizing that society isn't collapsing there?

[kris97]

Seeing the coverage on this decision is frustrating to me, not because of the substance of the court's decision, but because journalists are such poor legal analysts. The New York Court of Appeals did not "ban gay marriage"; rather they held that, the New York State Constitution does not compel recognition of gay marriage. It's a subtle but important distinction. New York law presently limits marriage to people of opposite genders. The question on this appeal was whether that law was consistent with the due process and equal protection clauses of the NY State COnstitution. The court ultimately held that it was.

I haven't given the opinion enough thought to decide whether I agree with its legal analysis (which largely depends on the scrutiny given to NY's existing marriage law). I do think it's important to recognize, however, that the Court ruled only that NY's present domestic relations law does not conflict with the state constitution. This is much different than saying, for instance, that a law allowing gay marriage is un-constitutional. The Court has left it up to the state legislature to amend the existing law.

Given the ruling, I think the movement is better served focusing its energies on lobbying the assembly and the state senate, rather than bemoaning what it is at heart a very technical legal question.

(FWIW, I am pro-gay marriage. As I said, I'm not sure whether I agree with the legal correctness of the court's decision, but I wanted to point out that it's more complicated than: "New York Court Says No to Gays!", which is probably tomorrow's headline in the Post.)

[Delta]

I think it was exactly the right decision for the reasons kris stated.

This is much different than saying, for instance, that a law allowing gay marriage is un-constitutional. The Court has left it up to the state legislature to amend the existing law.

[PG-rated]

kris - That was how I understood the ruling all along; what I don't understand is why the ruling differs from most of the other court cases that have ruled other states' laws to be unconstitutional. Is it a difference in the law, or New York's state constitution, or both?

[lawyerlee]

I don't want to hear a damned thing about activist judges for a while! ;)

[kris97]

PG -- I assume you're talking about Massachussetts and Vermont, right? I am sure there are others, perhaps lower courts, that have found that laws restricting marriage to heterosexual couples are consistent with other state constitutions. Without reading those decisions, they're probably different because each state's constitution, and constitutional history, is different. I mention the latter because certain states have legal traditions that lead them to afford greater protections to certain rights than the federal constitution. In New York, one of those areas is the right to counsel; consequently, New YOrk affords greater protection to that right than the federal constition does. Perhaps the Vt and the Mass courts interpreted their constitutions more broadly than the NY COA, or perhaps those courts reviewed their states' constitutional histories and found greater protection afforded to marital rights, gay rights, or the right to be free from sexual discrimination.

[PG-rated]

In Massachusetts, I think it was that the equal protection clause was written very broadly, but that's only my impression as a layperson.

I believe Maryland is also facing a showdown on this issue due to a court ruling, but I don't feel like looking it up right now. :)

[Asha]

on some news report, they said that the ruling noted the fact that gay couples don't have a tradition of being in married relationships, so a ban against gay marriage doesn't limit their rights. i don't know if that was just bad reporting, but that was part of my understanding of the ruling.

how in the world could gay people have a tradition of being married when it is illegal for them to get married? that statement about a tradition of marriage just doesn't make sense.

[SingleWhiteFemale]

I believe Maryland is also facing a showdown on this issue due to a court ruling, but I don't feel like looking it up right now. :)It has been 2 years since it was filed herem and currently it is in the Court of Appeals, but from the WP back when originally filed: (http://www.washingtonpost.com/wp-dyn/articles/A34638-2004Jul7.html)
The suit alleges that the Maryland law defining marriage as a union between a man and a woman violates the state constitution's equal protection clause. Same-sex couples are denied many of the rights accorded to married heterosexual couples, the plaintiffs say, including health care, certain tax benefits and the ability to make medical decisions for each other.

The nine couples, who include Patrick Wohahn, 28, and Dave Kolesar, 26, of College Park, sought marriage licenses in Baltimore or the counties of Prince George's, St Mary's and Dorchester.

"It just doesn't make sense that some families are at such a staggering disadvantage," said Lisa Polyak of Baltimore, who is a plaintiff along with her partner of 23 years.

Choe said he believes Maryland is fertile ground for a legal challenge because the state's courts have granted gay couples the right to adopt children and because the General Assembly approved a 2001 law protecting gay people from discrimination. From Equality Maryland (http://www.equalitymaryland.org/marriageequality.htm):Baltimore City Circuit Court Judge Brooke Murdock found that denying same-sex couples the ability to marry violates the state constitution’s Equal Rights Amendment, which protects against discrimination based on sex. She also found that there is not even a rational basis for denying same-sex couples the ability to marry.

[jnettie]

This is how I understand the ruling from listening to WNYC all day:

The decision is like kris97 said...they said it's not allowable under the present State Constitution, but that a law could be written to ammend the constitution. I don't think that's bad at all.

The Vermont Constitution's ammendment on marriage is actually quite different than New Yorks, and that's why Civil Unions were easier to pass there. Massachusette's is actually almost exactly the same, but their judges could interpret it differently.

The explanation I heard was that the Judges don't have to consider what the original intent of the law was (since when the law would have been written, gay marriage wouldn't have even been thinkable), but what *could* have been meant when the law was written, and what they think would have been written *if* gay marriage were an option when it was written. Massachusettes doesn't do that.

My biggest issue with the decision, though, is that it was made based on children - that a heterosexual couple is best of raising children. I just profoundly disagree, if only because I don't think that children are the foundation of marriage. As if you don't have kids, suddenly your marriage is void. :rolleyes:

Here's a link to the Brian Lehrer Show, which is on our local NPR (WNYC, as stated before). He had a legal expert on who talked about the decision. It's very informative.

Brian Lehrer Show (http://www.wnyc.org/shows/bl/episodes/2006/07/06)

[SingleWhiteFemale]

My biggest issue with the decision, though, is that it was made based on children - that a heterosexual couple is best of raising children. I just profoundly disagree, if only because I don't think that children are the foundation of marriage. As if you don't have kids, suddenly your marriage is void. :rolleyes:Never fear, some good has come recently--activist judges are still on the bench ;) Who would have guessed they were in Arkansas? :eek: Court Overturns Arkansas Ban on Same-Sex Foster Parents (http://www.nytimes.com/2006/06/30/us/30gays.html)
By THE ASSOCIATED PRESS
Published: June 30, 2006

LITTLE ROCK, Ark., June 29 (AP) — Arkansas cannot bar gay men and lesbians from becoming foster parents because there is no link between their sexual orientation and a child's well-being, the State Supreme Court ruled Thursday.
...

The justices agreed Thursday, saying the ban was "an attempt to legislate for the General Assembly with respect to public morality."

"There is no correlation between the health, welfare and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual," Associate Justice Donald L. Corbin wrote in the opinion.

In addition, the court said, the testimony of a member of the child welfare board demonstrated that "the driving force behind adoption of the regulations was not to promote the health, safety and welfare of foster children but rather based upon the board's views of morality and its bias against homosexuals."

The court also said that contrary to what the state had argued, being raised by homosexuals did not cause academic or sexual identity problems.

[kris97]

To answer some of the questions that have been raised:

Here is a link to the COA's full opinion in Seymour v. Holcomb: http://www.nycourts.gov/ctapps/decisions/jul06/86-89opn06.pdf


Here's an excerpt of the decision compiling other state court rulings in which the right to same sex marriage was asserted under state court constitutions. As you can see, the results are mixed:

(e.g., Goodridge v Department of Public Health, 440 Mass 309, 798 NE2d 941 [2003] [excluding same-sex couples from marriage violates Massachusetts Constitution]; Standhardt v Superior Court, 206 Ariz 276, 77 P3d 451 [Ariz Ct App 2004] [constitutional right to marry under Arizona Constitution does not encompass marriage to same-sex partner]; Morrison v Sadler, 821 NE2d 15 [Ind 2005] [Indiana Constitution does not require judicial recognition of same-sex marriage]; Lewis v Harris, 378 NJ Super 168, 875 A2d 259 [2005] [limitation of marriage to members of opposite sex does not violate New Jersey Constitution]; Baehr v Lewin, 74 Haw 530, 852 P2d 44 [1993] [refusal of marriage licenses to couples of the same sex subject to strict scrutiny under Hawaii Constitution]; Baker v State, 170 Vt 194, 744 A2d 864 [1999] [denial to same-sex couples of benefits and protections afforded to married people violates Vermont Constitution]).

With respect to your point, Asha:
on some news report, they said that the ruling noted the fact that gay couples don't have a tradition of being in married relationships, so a ban against gay marriage doesn't limit their rights. i don't know if that was just bad reporting, but that was part of my understanding of the ruling.

how in the world could gay people have a tradition of being married when it is illegal for them to get married? that statement about a tradition of marriage just doesn't make sense.

IMO, this is a prime example of poor legal analysis by the news organizations. The COA does discuss the history (or lack thereof) of the right to gay marriage, but its in the context of distinguishing it from cases involving bans on interracial marriage. The Court points out, correctly I think, that the bans on interracial marriage were enacted specifically to deny rights to African Americans, while the NY marriage law in question was not designed to exclude gay people from marrying. The NY law, which defines marriage as between a man and a woman, was adopted in 1909, well before people even conceived of same sex marriage.

Now, whether one agrees with this analysis or not, it's a far cry from what the newspapers are apparently reporting.

[kris97]

Oh, one more thing, before I shut up..... :)

One important thing to know is that the Court reviewed the bases for the legislation under what's called rational basis scrutiny, which basically means, as long as a legislature has some rational reason for the legislation, even if it's wacky, and even if the court or the public disagrees with it, a court must uphold the legislation. The Court doesn't actually say that two-sex couples on the whole are better for children; rather, it holds that the legislature could rationally draw that conclusion.

Again, reasonable people can disagree as to whether the Court should have applied this type of scrutiny, or whether the reasons cited are rational, but the decision itself is legally supportable.

[jenahdawn]

The nine couples, who include Patrick Wohahn, 28, and Dave Kolesar, 26, of College Park

Patrick is one of my best friends in the world. He played piano for our ceremony (4 days before he took the Bar exam!) And I ADORE Dave. I was one of their ring bearers/best men at their commitment ceremony last summer. (And the article is closer to three years old at this point...just an FYI)

I can tell you, their ceremony and reception had more meaning and love than some weddings I have been to. And everyone refers to them as husbands.

It saddens me that "legally", their marriage is not recognized, but either of them could turn around and marry any woman down the street. (Not like they would)

It frustrates me because I know there are also health issues with one of them that, should anything happen, one would not be able to make decisions for the other, yet an incompetent family member could.

I get very angry about this topic...

There WERE ten couples, but one man lost his partner, but still stuck with the other nine.

[jenahdawn]

I also wanted to add two things:

kris, not trying to be a PITA, but does that mean that the silly law in (I believe) Alaska, that is it illegal to look at a moose through the window of an airplane stays? :p

Also, when it came to the MD case, at least, each of these couples had to go to their respective counties and request applying for a marriage license.

In P&D's case, the woman could have just said, "No." But, instead, she said, "What? No, no way, nu-uh. Not in MY lifetime. Never." And the other couples received similar reactions.

So, in those cases, is anyone surprised that a case was filed for discrimination?

[kris97]

Oh, you're not being a pain at all! The topic's actually quite dear to me as well - a close family member of mine is gay, and it kills me that their relationship with their partner is given less credence than Britney Spears's. Thank you for sharing your friend's story.

Re: the moose law: honestly, it would depend on the stated rationale. Under rational basis review, if it's rational, the law will be upheld. I can't think of a rational reason for not looking at a moose through an airplane. :)

And re: the comments your friends faced - it's reprehensible, but I would have expected a lawsuit whether or not the registrar was kind. LAMBDA and its colleague organizations have mounted a careful but coordinated legal campaign over the last decade, and NY, given its generally liberal politics and courts, was always going to be a target. I'm sorry that this battle was lost, but I do think in the long run that focusing efforts on legislative reform is the better course.

[December27JJB]

How sad. "...the land of the free and the home of the brave" ? Doesnt sound like it to me.
the land of the free: clearly not everyone has the same rights.
the home of the brave: its more like "the land of homophobics."
I guess I will never understand why people think they are entitled to tell other people who or who not to marry.

[jnettie]

Never fear, some good has come recently--activist judges are still on the bench ;) Who would have guessed they were in Arkansas? :eek:
Lol! Arkansas, huh?

Actually, I thought it was rather well established, anyway, but it's always good to have a nice, written legal decision to back that up.

[wine_o_girlie]

I think it was exactly the right decision for the reasons kris stated.

Curious - how would you have liked the last major overhaul to marriage laws (i.e. allowing interracial marriage) to be decided? At the federal level or at the state level?

[Delta]

Curious - how would you have liked the last major overhaul to marriage laws (i.e. allowing interracial marriage) to be decided? At the federal level or at the state level?
I don't think you can compare the two. In fact, the majority decision (http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf) addresses this. (It's a PDF so I can't cut and paste. It discusses Loving, etc., beginning on page 8.) There are also many black leaders today who reject the comparisons as well.

[bookworm]

I read the decision (thank you for posting it), and it seems to be the reason given for not comparing the two was that we haven't thought homophobia was a "revolting moral evil" for long enough.

The bits about naturally leading to the birth of children were just odd. That doesn't seem to be a particularly fair basis for deciding for whom the legislature can restrict marriage.

ETA, I'm reading again (well, re-skimming) and they do talk about opposite-gender couples who cannot have children. They indicate that it's too hard to tell them apart from opposite-gender couples who can have children, and it would be a bad idea to try to restrict marriage like that.

[kris97]

I see the difference more along the lines of what I posted above: the Loving antimiscegenation laws were devised specifically to further white supremacy, and black oppression. When the NY legistlature passed its domestic relations law in 1909, they were merely codifying a universally accepted definition of marriage. They were not enacting the law to prevent same sex marriage because quite simply, such an idea did not exist (or if it did, it was limited to very small, radical circles.) While I do agree that laws should evolve to reflect our changing mores, I think the intent behind the statute is important to recognize.

[bookworm]

Since you're the lawyer, I will certainly defer to your reading :).

[Delta]

I should say here that this case illustrates for me the problems I have with the gay rights movement as it stands now. I'm not opposed to having gay marriage recognized by law at the state or federal level. I just think this issue is something that needs to be hashed out by the public, in the legislatures, and not the courts. I'm not going to be persuaded by arguments that equate their fight for marriage with that of the civil rights struggle for African Americans. The comparison is much too simplistic.

[Hangin'in]

Lol! Arkansas, huh?

Actually, I thought it was rather well established, anyway, but it's always good to have a nice, written legal decision to back that up.

Having looked into adoption in Arkansas..... I thought it was strange that gay couples could adopt, but the state would not allow them to foster children. I'm glad the State Supreme Court changed that. The way the state DHR had it written in the *requirements to foster children* it was very biased and discriminatory.....

one small victory at a time!

[msnicolea]

I should say here that this case illustrates for me the problems I have with the gay rights movement as it stands now. I'm not opposed to having gay marriage recognized by law at the state or federal level. I just think this issue is something that needs to be hashed out by the public, in the legislatures, and not the courts. I'm not going to be persuaded by arguments that equate their fight for marriage with that of the civil rights struggle for African Americans. The comparison is much too simplistic.

I don't understand why you get to decide which civil rights 'count" and which don't. A disenfranchised minority population is being actively discriminated against--I guess that is pretty "simplistic."

Please enlighten me: how is telling someone whom they can or cannot marry based on their sexual preference different from telling them based on the color of their skin?

Lastly:
We don't vote on civil rights in this country--that isn't how it works.

[LittleFredPunkinHead]

We don't vote on civil rights in this country--that isn't how it works.
Agreed!

[kris97]

No, we shouldn't "vote on civil rights", but the question of what types of couples should be afforded the benefits attendant to marriage is a far more complicated question than: Should states be allowed to deny black people the vote?

Listen, I am pro-same sex marriage myself, but as I've tried very hard in my last five posts here, this decision ,and the corresponding issue, are much more nuanced and complex than the banner wavers on both sides would have you believe. While I believe that our concept of civil marriage should be extended to include gay couples, given how radical a departure such a change will be, I think it's important to distinguish the matter from cut and dried civil rights issues like the denial of the franchise for certain groups.

I could spend more time on this - but my point is, given the complexities, I think the better course is to focus on legislative reform. Since the likely-next-governor of NY (attorney general Spitzer) is pro gay marriage, I think there's a very good chance NY will see legislation passed in the next several years. Once that's passed, I really believe gay rights will be on a surer footing than if imposed by the COA.

[msnicolea]

I think it is a "cut and dried" civil rights issue and should be treated as such. I understand your persepctive and beliefs--but I think it's actually quite simple.

[bookworm]

I thought we did vote on civil rights in this country--like the civil rights act, ammendments to the constitution dealing with voting rights, etc.

But I also thought things like the civil rights act were after a variety of court decisions that said "you can't treat people like that."

I guess I'm just slow--I read that decision, and I really don't understand their dismissal of the logical conclusion of their argument (the legislature has an interest in restricting marriage to protect children, but restricting marriages of people who can't have children is somehow going too far). I don't understand why this has to be about the definition of marriage--if there were no civil rights/benefits involved with "marriage" then everyone could just go to the UU church and have a ceremony and be done with it, and go to the lawyers and get powes of attorney and health care proxies and everything else.

ETA: While I don't necessarily object to trying a legislative route, I think this is one of those tyranny of the majority things that the constitution is supposed to protect against.

[msnicolea]

I thought we did vote on civil rights in this country--like the civil rights act, ammendments to the constitution dealing with voting rights, etc.

But I also thought things like the civil rights act were after a variety of court decisions that said "you can't treat people like that."

I guess I'm just slow--I read that decision, and I really don't understand their dismissal of the logical conclusion of their argument (the legislature has an interest in restricting marriage to protect children, but restricting marriages of people who can't have children is somehow going too far). I don't understand why this has to be about the definition of marriage--if there were no civil rights/benefits involved with "marriage" then everyone could just go to the UU church and have a ceremony and be done with it, and go to the lawyers and get powes of attorney and health care proxies and everything else.

ETA: While I don't necessarily object to trying a legislative route, I think this is one of those tyranny of the majority things that the constitution is supposed to protect against.

Congress gets to vote--not us. The Civil Rights Act wasn't on a ballot--it was a Bill proposed by the President. Imagine if it had gone to a vote--where might we still be today? And voting to grant rights isn't the same as voting to either restrict them or take them away. And attempting to use the Constitution as an agent for discrimintation is digusting. And on and on and on. . .

[kris97]

Let me try another analogy.

Let's say that for thousands of years, governments and society have only recognized one type of relationship as parent: that of a biological parent and child. Many benefits flow from that legal relationship. The law is codified, consistent with that universal understanding, that a parental relationship is defined as one between a biological parent and child.

Sometime in the past few decades, society begins to recognize that people who are not biological parents and children should be able to enter a parental relationship and obtain the benefits associated with that relationship. The existing laws defining a parent as biological mother or father were not enacted to exclude specific groups from obtaining those benefits, but rahter to codify the universal understanding.

I see this situation, and the situation facing gay men and women in New York, as much different than the civil rights movement. Arguably, both the marriage law at issue in the COA case, and the law in my hypothetical, deny rights to groups of people, and should be expanded. But neither law was enacted, as the anti-miscegenation laws indisputably were -- to exclude groups from sharing benefits.

That's why I think it's a different matter. Now, there are certainly laws passed with the explicit intent to deny rights to gay people -- I would analyse those under the Loving/civil rights lens.

[msnicolea]

I understand your analogies and explanations--I just don't agree with them.

As always, though, I appreciate the well thought out nature of your posts, Kris!

[wine_o_girlie]

I don't understand why you get to decide which civil rights 'count" and which don't. A disenfranchised minority population is being actively discriminated against--I guess that is pretty "simplistic."

Please enlighten me: how is telling someone whom they can or cannot marry based on their sexual preference different from telling them based on the color of their skin?

Lastly:
We don't vote on civil rights in this country--that isn't how it works.

EXACTLY!

[wine_o_girlie]

I'm not going to be persuaded by arguments that equate their fight for marriage with that of the civil rights struggle for African Americans. The comparison is much too simplistic.

I completely disagree with you. The comparison is there, you just refuse to acknowledge it.

[jnettie]

kris97, but just because the laws weren't written to specificly discriminate against couples due to sexual orientation, doesn't mean that the way it was interpreted in this decision isn't descrimination. I see it as using the law and twisting to continue institutionalized descrimination, and therefore, a Civil Rights matter.

I'm actually rather tired of people insisting that gay rights isn't a civil rights matter. There's all sorts of justifications that everyone has, but I still believe it IS a Civil Rights matter! Homosexuals are murdered still today. They can't get the same protections and benefits heterosexuals do. They face lengthy court battles for the basic things, like adoption, that the rest of us take for granted. They can't freely walk around holding hands with their partner or kissing in public the way I can hold my husband's hand and kiss him for fear of the reaction. They might be denied service in a restaurant or a room in a hotel. Aren't these all things that people of color once faced?

[kris97]

I completely agree that broadly, the gay rights movement is a movement for civil rights. Completely. And the discrimination gay people face, societally, is certainly akin to that suffered by people of color.

My point is that THIS law (New York's law, which, again, was enacted in 1909) is different from laws specifically passed to subjugate a group of people. The effects, yes, may be discriminatory. However, the effects of tons of laws we find acceptable are discriminatory in impact. Laws imprisoning people for violent crimes disproportionately affect men more than women. How we address laws with disproportionate impact requires a far more nuanced look than laws that are explicitly discriminatory in intent.

There certainly are laws, like the Jim Crow laws, that are passed specifically to discriminate against gay people. There was one in Colorado some time ago that said that municipalities could not pass anti-discrimination laws protecting gay people. It was struck down by the Supreme Court in Romer v. Evans (I think that's the name?) within the past ten years.

So, my point is, saying that the precise situation encountered by the Court of Appeals is not identical to a Jim Crow law does not diminish the seriousness of disrimination faced by gay people, nor does it demean their cause.

[jnettie]

Ah, yes, I see. That makes a bit more sense. The overall cause has Civil Rights issues within it, but this particular law is not a case of Civil Rights. Gotcha.

[bookworm]

Kris, I appreciate your example--that helped me understand the context (built to discriminate v. discriminates as a by-product).

In both cases, I think not expanding the original definition is wrong, so at least I'm consistent ;).

[kris97]

Jnettie -- I'm sorry, I see where the misunderstanding has come from... When I said something earlier like, this case is not the same as the civil rights movement, I meant "Civil Rights" as shorthand for the struggle in the 40s-60s against Jim Crow laws. I think the NY case totally involves (lowercase c) civil rights in the sense that the plaintiffs are seeking rights in a non-criminal context. Sorry for any confusion!