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.
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