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Mildred Loving has died, and gay people everywhere should mourn her passing.

Why should they do so? Because when the day comes that gays and lesbians argue their case for gay marriage before the Supreme Court (as that day must someday come), Mildred Loving will speak out from the dead on their behalf.

Mildred Loving was a black woman in Virginia who fell in love with a white man. They wanted to marry, but fell afoul of Virginia’s anti-miscegenation (interracial marriage) statute. They filed a lawsuit claiming a violation of their constitutional rights that found its way to the Supreme Court in 1967. The result striking down the statute was announced in Loving v. Virginia, arguably one of the most important Supreme Court cases of all time.

Chief Justice Warren delivered the Opinion of the Court, and said the following words, profound in their implications:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. (emphasis added)

The Court affirmed that marriage is a fundamental right that may not be abridged by the state absent the showing of a compelling state interest (a standard that is very difficult to meet.) These words in Loving v. Virginia are the best weapon that gays and lesbians have for persuading the Supreme Court that the fundamental right of marriage should be extended not only to members of different races, but also to those wishing to enter a same-sex marriage. In both cases, the state is preventing an individual from marrying the consenting adult partner of his choice.

So as we go about our business today, let us all honor the memory of this brave woman who will be forever remembered as part of the civil rights tradition in this nation.

As Republicans retreat like beaten curs in the face of their implosion last night, to lick their wounds and fret about a future under Nancy Pelosi, they would do well to reflect on what brought them to such a sorry juncture.

The Party of Lincoln was supposed to be one of limited government, fiscal prudence and a balanced budget, a belief in the power of the markets, transparent governance, and a strong and sensible foreign policy. These principles were embodied in the Republicans’ Contract with America that helped usher them into power for twelve years. Notably absent from the Contract was any mention of divisive social issues like abortion or gay rights.

Shortly after their ascension to power, and increasingly so after Bush II came into office, Republicans threw the Contract away and most of their core principles along with it, adopting instead a scorched-earth policy based on delusions of having secured a permanent majority:

• Instead of focusing on dollars and cents, they resorted to socially divisive issues like gay marriage and Terry Schiavo to rally their base while leaving the rest of America cold.
• Their “win at all costs” mentality caused them to impeach a popular sitting president over a sexual indiscretion, severely poisoning the atmosphere in Washington and nearly eliminating the possibility of bipartisanship on any issues ever since.
• After 9/11, they squandered not just the goodwill of the world in the aftermath of the attack but also the nation’s prestige and ability to lead or pressure other nations through their pig-headed and misguided determination to invade Iraq without a plan or a clear set of goals.
• They became a rubber-stamp for a President with total disregard for basic constitutional rights.
• They engaged in fear-mongering tactics to win elections, raising the specter of terrorists on every street corner just waiting to pounce on Americans should Democrats ever come to power.
• Instead of nurturing the federal surplus handed to them after the Clinton years, they wasted it all and turned the surplus into humongous deficits, spending like drunken sailors while Bush failed to use his veto pen on anything except a stem cell research bill.
• They insisted on greatly worsening the federal budget by handing out tax cuts to those who needed them the least.
• They threw transparency in government out the window, letting their votes be bought by lobbyists and operations such as the “K Street Project.”

Many of the ideas of the Revolution itself were really good. What failed was Republicans’ ability to execute on them because of their self-entitled sense of having obtained permanent hegemony and the concomitant feeling that they no longer needed to be brought to account for their actions. It became sufficient for them to keep rallying their base, keep pushing wedge issues on the public, keep painting their Democratic opponents as weak on terrorism and wanting to coddle terrorists.

The Republican Revolution came to power because of an idea. It ended when the only idea left was how to keep power. As Democrats return to enjoy their own time in the sun, they would do well not to forget that lesson.

The GOP is out of ideas, out of touch, out of synch, and out of time. So what are they to do, oh dear oh my? Oh look….let’s work furiously to put gay marriage back in the spotlight after the New Jersey decision…because after all, if there are no ideas left there’s always gay-bashing.

That’s all the GOP has been reduced to. So craven are they, in fact, that they are REJOICING at the New Jersey decision because of the political benefits they think will accrue to them. They’re not crushed by the decision, lamenting the insult to the face of God, no. They’re jumping up and down with joy because of how they think it will harm the Democratic insurgency coming into the mid-term elections by boosting conservative turnout.

“Pro-traditional-marriage organizations ought to give a distinguished service award to the New Jersey Supreme Court,” said the Rev. Richard Land, head of the public policy arm of the Southern Baptist Convention.

When a political party is so bankrupt that it has to resort to bashing a minority to try to stay in power, it has become nothing but a collective bunch of pathetic, hypocritical cowards that deserve to be tossed out like yesterday’s garbage.

Gay activists have much to rejoice over for the New Jersey Supreme Court’s decision in Lewis v. Harris extending the right of marriage to same-sex couples–it is a good step forward in the battle for marriage equality. However, there are some aspects of the decision that I find disturbing.

The essence of the decision was essentially this: while same-sex marriage is not a fundamental right, prohibiting it runs afoul of the Equal Protection clause in New Jersey’s constitution. As such, while same-sex couples should have the right to the benefits of marriage, they do not have an accompanying right to have those benefits called “marriage.” The legislature was therefore directed within 180 days to either include same-sex couples in its marriage statutes, or draft a duplicate set of guidelines that provides the same rights as marriage but calls it by another name (e.g., “civil unions.”)

My first concern is on the issue of same-sex marriage not being a fundamental right. A fundamental right is one that is deeply rooted in history and traditions. Marriage itself is universally considered to meet that test. However, the New Jersey Court ruled that while marriage may meet that test, same-sex marriage does not and therefore cannot be considered a fundamental right.

That’s putting too fine a point on it. Why not simply focus on the issue of marriage itself? Same-sex marriage is nothing but one type of marriage, and it’s the issue of marriage itself that ought to have been addressed. An analogy lies in Loving v. Virginia, the US Supreme Court case that struck down bans on interracial marriage. In that case, the Supreme Court could have said “well, marriage meets the fundamental right test, but inter-racial marriage does not and therefore it should not be considered the same.” That’s not what the Court did in that case. Instead, it re-affirmed that marriage itself was the issue, that it is a fundamental right, and that inter-racial marriage was simply a form of the protected right itself. It wasn’t something separate or different. I don’t see why the same logic doesn’t apply on the issue of same-sex marriage.

While this may sound like a nitpick, it’s actually very important. Once a right is found to be fundamental it is extremely difficult for the government to impinge on it in any way–it may do so only to meet a compelling state interest in a way that’s narrowly tailored to meet that interest. That’s a really hard standard to meet…as opposed to the much squishier standard applied under equal protection logic, which in New Jersey meant simply a balancing of the importance of the right versus the need for governmental restriction (a test the court said New Jersey failed to meet in opposing same-sex marriage). While the end result is the same, my belief is that the declaration of a fundamental right would have been a much stronger statement for future courts in other places to weigh when deciding what to do.

The second concern I have is the willingness of the court to send the matter to the legislature, even if it’s with a directive to craft some kind of equal marriage rights. This smacks of the whole “let the legislature decide the issue” argument that conservatives often put forward, knowing fully well that when any proposed minority right is presented to a majority that it is likely to strike it down. Rights are all about protecting minorities against the predations of majorities. It would have been unconscionable to “leave it to the legislature” to decide whether segregation was right or not, whether interracial marriage was right or not, whether “one-person-one-vote” was really in place or not, and so on. The “leave it to the legislature” argument is one that conservatives use to adopt a false veneer of tolerance when they are fully aware and approve of the final outcome. Same goes for the protest about “activist judges”–the justices who decided Brown v. Board of Education would surely have been called “activist” by any measure, and yet today we could not fathom their having decided the case any differently. There would be no social progress without these so-called “activist judges”, who are really judges brave enough to think outside the box–and yet they cause consternation to conservatives because they’d really rather “leave it to the legislature.” In ruling as it did, the New Jersey court seemed to kowtow to some of this logic by giving the legislature some element of choice over something that, as I argued before, should be a fundamental right not subject to a vote

My last concern is with the court’s willingness to let the legislature adopt a “separate but equal” system of marital-type benefits and then call it something other than marriage. If something smells, looks, and acts like a rose then it should be called a rose instead of catering to people’s “sensitivities” about it, which is what the unstated purpose of this provision seems to be. History has shown that “separate but equal” is never equal.

Overall, I give kudos to the court for its bravery in the current political climate, although it would have been better if the court’s language in defense of marriage equality had been stronger. One victory at a time…

As Republicans flounder in fear and loathing as a result of the Foley scandal, they’re looking for someone, anyone, to blame except themselves.

One group of GOP’ers “smell a rat” and think that the way the information about the scandal came out at the most damaging time possible and then dribbled out over the course of days smacked of left-wing opportunism. Politicians from Dennis Hastert to Katherine Harris have gone on the record trying to put the spotlight on Democrats (!) instead of on themselves.

In case they hadn’t noticed, Democrats are not in power on the Hill. This scandal is all about the *GOP’s* complete inaction in the wake of years’ worth of evidence of Foley’s wrongdoing. Even if the “left wing conspiracy” is true it doesn’t absolve the GOP leadership one iota of its gross incompetence.

Republicans probably also don’t appreciate the irony of claiming a left wing conspiracy after deriding Hillary Clinton for claiming a right wing conspiracy during the Lewinsky scandal. In that case, although it’s true that Bill did his thing in the Oval Office, it was blown vastly out of proportion by the Republicans–as their failure to convict him and as American’s attitudes about the scandal at the time demonstrated. Now we have a situation that was entirely brought on by the GOP leadership and that has drawn complete condemnation across the entire political spectrum from left to right, among both politicians and ordinary citizens. To claim a vast conspiracy for the GOP’s downfall in the scandal is simply laughable.

Yet another way the GOP is trying to blame Democrats, in this case indirectly, is by claiming that the culture of permissiveness towards homosexuals encouraged by Democrats discouraged the GOP leadership from acting more aggressively. As I’ve written before this argument depends on there being a relationship between homosexuality and Foley’s actions, which research has shown to be patently non-existent. But more to the point, it’s just another way of trying to blame someone, anyone–Democrats, the culture, whatever–for something that lies squarely on the shoulders of GOP leaders.

And really, who on Earth could claim that the GOP leadership is “culturally tolerant?” This party has been ruthless in advancing an anti-gay agenda for six years, from sponsoring anti-marriage amendment efforts federally and in many states to refusing to pass the gay Employment Non-Discrimination Act.

I have no doubt that had Foley been inappropriately contacting young girls instead of young boys that the whole matter would have been kept just as quiet. Why? Because this is not about cultural permissiveness, it’s about keeping power at any cost.

Time has an excellent quote in its new article about the breaking of GOP dominance that appears to be taking place: Every revolution begins with the power of an idea and ends when clinging to power is the only idea left. What a perfect way to describe a calcified party with nothing left but its burning desire to cling to power, even if it means that children are thrown under the bus in the process.

In the ongoing debate going over same-sex marriage, the Commonwealth of Virginia is emerging as nothing short of fascist in its zeal to deprive gay people of their liberties–so much so that the curtailment of liberties threatens to spill over to non-gay relationships if a measure is approved in November. The hostile laws are causing many gays, especially couples, to leave Virginia in favor of the District of Columbia or Maryland.

In 2004, Virginia passed a law that not only banned just gay marriage, but even invalidated “civil unions, partnership contracts or other arrangements between persons of the same sex purporting to bestow the privileges or obligations of marriage.” Not even contracts between two gay partners would be honored. So for example if a couple wanted to pass along property by a will to a life-long partner, the will would stand to be invalidated by hostile family members if they chose. A “living will” arrangement where one partner could honor the wishes of the other to not continue life support when one of them is in a vegetative state could also be rejected as unenforceable. A host of other things like hospital visitation rights and even joint property ownership would also be put into question, never mind the possibility of adoption.

The attempted curtailment of so many rights is not just “conservative,” it’s downright draconian. No government would be suffered to inflict that much of an infringement of civil liberties on any other group of people, and I’m fairly certain the provisions are unconstitutional although nobody has as yet stepped up to challenge the law’s legality. The federal Constitution guarantees the right of people to contract with each other:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

U.S. Constitution, Article I, Section 10

That Virginia would even try to take someone’s right to enter contracts with another person show’s the extent of the Commonwealth’s spite. But that’s not all…as if the law were not enough, the Commonwealth feels that additional punitive measures are required, as now there will be a proposed constitutional amendment on the ballot that prohibits “unmarried individuals” from “union, partnership or other legal status similar to marriage.” Of course, gay couples are not the only co-habitating unmarried couples out there, raising a question as to the status of the rights heterosexual unmarried couples may have under common law. If nothing else this ambiguity serves to highlight the sheer stupidity of a backwards state as it stumbles over itself in its haste to enshrine prejudice into its laws and constitution.

Needless to say, gay couples and residents are not taking this lying down. Some are fighting the amendment while others are taking themselves, their creativity and their tax dollars to other places. As one departing resident said for the linked article,

“As an African-American, having grown up during the Civil Rights movement in Birmingham, Ala., I am not willing to have my rights taken away from me by ignorant, religious zealots who don’t respect the constitutional understanding of separation of Church and State when scripting laws. It was apparent to me that things weren’t getting any better, but worse. Why should I continue to pay taxes to support such a hateful government?”

In the end it is Virginia who loses. As Richard Florida argues in his book, “Flight of the Creative Class: the New Global Competition for Talent“ the municipalities that are most successful in creating hubs of technology and creativity so essential in today’s information economy are those that show openness and tolerance for differences, including towards gays. There are a lot of highly educated and highly paid gay people in information technology and related fields who will decline to take jobs in and pay taxes to such a hostile state, letting DC and Maryland reap these gains at Virginia’s expense.

Quite apart from the economics argument, however, is the intuitive notion that you don’t treat people like second-class citizens and expect to be seen as anything other than a backwards state full of hatemongering idiots.

Washington’s supreme court today nixed the right of gay couples to marry under that state’s constitution.

In light of a string of wins recently by opponents of same-sex marriage, such as the recent one in New York, where are the so-called activist judges that make it so necessary to amend discrimination into the US constitution? Judges, be activists already!

It is the height of hypocrisy for these anti-gay groups to oppose gay marriage and at the same time condemn gays as promiscuous and incapable of having relationships. They are also spiteful to pursue a refusal to recognize ANY relationship agreements between gays such as civil unions and even contracts signed between couples in such states as Virginia. It is unfortunate that this country is still not ready to see the basic and appalling lack of equality they are imposing on their friends and neighbors.

The House today failed to pass a constitutional amendment to ban gay marriage. Never mind that the vote was a complete waste of time and taxpayer money because the Senate had already previously rejected the amendment. Republicans in the House felt they had to grandstand on the issue to please their religious base.

“Be assured this issue is not over,” said House Speaker Dennis Hastert in ominous tones.

Proponents claim the amendment is necessary because they seem to think there are “activist judges” everywhere approving gay marriage right and left: “We must not allow an institution of such great importance to be arbitrarily redefined for the entire nation by a small number of unelected judges,” said Rep. Joe Pitts, R-Pa.

Of course that ignores the fact that several state supreme courts have ruled against the issue just in the last two weeks alone. It also ignores the fact that over 45 states have already amended their constitutions or have laws to ban gay marriage.

When a law isn’t necessary but its proponents insist on passing it anyway, then let’s call it for what it really is: spite. Hopefully Americans will be smart enough to see this week’s ridiculous GOP “American values agenda” for what it really is: a stupid distraction from the nation’s urgent needs–from energy prices to skyrocketing healthcare costs to poverty to Katrina recovery to Iraq.

It’s no secret, though, that the GOP is out of answers and out of its league in continuing to govern. A failure of ideas and imagination means the GOP has no choice but to focus on these divisive issues in the desperate hopes of motivating people to vote for them at the polls.

What a pathetic excuse of a party.

The New York Court of Appeals has ruled against finding a right to gay marriage in that state. In doing so it contorts itself into legal knots by drawing narrow distinctions. It also shows itself completely devoid of courage to redress a wrong that is past due to be made right.

What follows is a summary of each major argument in Samuels and Gallagher, et. al., v. New York Department of Health, and my response.

1) Denying marriage to same-sex couples is “rational.”

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not…It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples…The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more…

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. It is obvious that there are exceptions to this general rule…but the Legislature could find that the general rule will usually hold.

Response:

How exactly does excluding gay couples from marriage “promote stability” for procreating? Does Adam and Steve living down the street from Jake and Jenny do anything to de-stabilize J&J’s relationship? Does it somehow impugn it, or make it less? Does it distract them or make them jealous? Does it cause them to beat their children? Why is it that A&S promote instability for J&J but their good divorced friends Rich and Rachel do not do the same?

Opponents of same-sex marriage keep deriding the issue as one that denigrates the stability of the family, focusing on the ONE thing that has never been proven to de-stabilize the institution of marriage. When it comes to divorce, or money problems, or the outrageous cost of housing, or gang violence in schools, or teen-aged pregnancy, or spousal/child abuse, they are all strangely silent.

If promoting heterosexual marriage exclusively as a means of enhancing procreation is really valid, then why not prohibit senior citizens from marrying? How about people who never intend to have children? People who have been sterilized to prevent future pregnancies? Clearly this argument descends into the realm of the ridiculous. Check out the court’s feeble attempt to explain away this inconsistency:

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.

In other words, the argument doesn’t apply because taking it to its rational conclusion would not be expedient. That’s right–the rights of an entire group of people should be denied because to apply the rule even-handedly (limiting marriage to childbearing couples of any orientation) is not expedient.

Notice also how the court tries to frame itself as progressive by citing the possibility that the legislature “might” find that heterosexual unions might be more unstable for raising children than same-sex ones and might therefore justify heterosexual-only marriage that way. I’m sorry, but you can’t put lipstick on this pig by saying that heterosexuals might actually need greater protection than their same-sex counterparts and thus deserve an exclusive right to marriage. Give me a break.

2) There is no violation under New York’s or the federal substantive due process clauses.

In deciding the validity of legislation under the Due Process Clause, courts first inquire whether the legislation restricts the exercise of a fundamental right, one that is “deeply rooted in this Nation’s history and tradition”…The right to marry is unquestionably a fundamental right…The right to marry someone of the same sex, however, is not “deeply rooted”;…The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage…

Here, there are, as we have explained, rational grounds for limiting the definition of marriage to opposite-sex couples…Plaintiffs here do not, as the petitioners in Lawrence [v. Texas] did, seek protection against State intrusion on intimate, private activity. They seek from the courts access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples. We conclude that, by defining marriage as it has, the New York Legislature has not restricted the exercise of a fundamental right.

Where no fundamental right is at issue, legislation is valid under the Due Process Clause if it is rationally related to legitimate government interests.

Response:

Notice the court’s circular reasoning: “As we have explained, there are rational grounds for not recognizing gay marriage. Therefore, there is no fundamental right to gay marriage, because there are rational grounds for not recognizing it.” That’s like saying, “If X, then Y; therefore X is true.” Did these judges go to law school?

There are many fundamental rights recognized that are not “deeply rooted in tradition.” This is true of privacy. It is true of the right to use contraceptives. It is true of abortion. It is true of intimate sexual relations between partners of either gender. The court copped out by drawing a razor thin distinction between same- and opposite-sex marriage instead of focusing on the right itself in question: the deeply rooted fundamental right to marry the person of your choice.

Additionally, as brave Chief Judge Kaye’s impassioned dissent correctly pointed out:

fundamental rights [like marriage], once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a “new” right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.

3) There is no violation under New York’s or the federal equal protection clauses.

Plaintiffs claim that the distinction made by the Domestic Relations Law between opposite-sex and same-sex couples deprives them of the equal protection of the laws. This claim raises, first, the issue of what level of scrutiny should be applied to the legislative classification…We resolve this question in this case on the basis of the Supreme Court’s observation that no more than rational basis scrutiny is generally appropriate “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement”…Perhaps that principle would lead us to apply heightened scrutiny to sexual preference discrimination in some cases, but not where we review legislation governing marriage and family relationships. A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State’s interest in fostering relationships that will serve children best. In this area, therefore, we conclude that rational basis scrutiny is appropriate.

Response:

Applying one standard is appropriate in certain cases, but applying a more relaxed one is OK in other cases arbitrarily chosen? How is marriage qualitatively less important than, say, discrimination in the workplace? In the case of laws that classify by race, where courts apply an almost impossible to meet “strict scrutiny” standard, courts have never said “well it’s ok to classify by race sometimes, but not in others.” You don’t change the standard to apply based on convenience. You pick one and stick to it.

4) Failure to recognize same-sex marriage by the legislature is rational and valid because there was no intent to intentionally discriminate.

Nor does the statutory scheme create a classification based on sexual orientation. In this respect, the Domestic Relations Law is facially neutral: individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex. Certainly, the marriage laws create a classification that distinguishes between opposite-sex and same-sex couples and this has a disparate impact on gays and lesbians. However, a claim that a facially-neutral statute enacted without an invidious discriminatory intent has a disparate impact on a class (even a suspect class, such as one defined by race) is insufficient to establish an equal protection violation…Plaintiffs concede that the Domestic Relations Law was not enacted with an invidiously discriminatory intent — the Legislature did not craft the marriage laws for the purpose of disadvantaging gays and lesbians.

Response:

In making this last statement, the court passingly compares the case to Romer v. Evans, the Supreme Court case that invalidated a Colorado initiative that would have banned gay anti-discrimination laws in Colorado. That initiative was found to be motivated solely and intentionally by irrational anti-gay prejudice rather than any legitimate government interest. This court concluded that the marriage issue was different from Romer’s because the marriage law was not intentionally discriminatory against gays and lesbians.
Judge Kaye’s dissent made short work of this argument, also using Romer:

Properly analyzed, equal protection requires that it be the legislated distinction that furthers a legitimate state interest, not the discriminatory law itself… Romer v Evans, 517 US 620, 633 [1996]). Were it otherwise, an irrational or invidious exclusion of a particular group would be permitted so long as there was an identifiable group that benefitted from the challenged legislation. In other words, 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.

5) The majority-elected legislature should decide whether to extend marital benefits to same-sex couples.

Response:
How often we forget that our constitutional protections such as those found in the Bill of Rights are to protect political minorities from the predations of majorities. Time and again, courts have taken bold stands on behalf of disenfranchised groups despite the wishes of majority-elected legislatures: slavery, de-segregation, interracial marriage, voting rights, abortion, and privacy to name a few. Had these issues been left to legislatures I suspect there are still parts of the country that would uphold these various types of discrimination today.

It’s so easy and so hypocritical to look back at these rulings and call the courts “courageous” when they made them, and yet accuse them of being “activist courts and judges” when they attempt to do the same thing today with remaining areas of invidious discrimination.

“Leave it to the legislature” is nothing but a cop-out. The one case where a legislature approved same-sex marriage was in California, which was then promptly vetoed by the Governor. You just can’t win.
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The same-sex right to marry in Massachusetts has shown that the world will not come to an end if gay marriage is allowed. Children will not go hungry, they will not end up abused, divorce rates will not increase. Life simply goes on as normal. Other countries such as Spain have fully embraced same-sex marriage, and they too have suffered no negative consequences for their families. These facts, more than anything else, demonstrate the hollowness of today’s opinion and the lack of spine shown by this court.

Word is that Georgia’s top court also handed down a ruling today, re-instating a gay marriage ban there. I would expect that out of Georgia, but I’m disappointed in New York. Hopefully New York’s citizens will pressure their legislature to stop treating their gay and lesbian neighbors as second-class citizens.