It is expected that New York State's highest court will issue its ruling on gay marriage this week. Yesterday's New York Times had speculated the ruling would be issued today, but apparently that's not to be. The court can order that marriage be recognized between any two people regardless of gender, or rule that civil unions are an acceptable substitute for same-sex couples, or uphold the current law restricting marriage to two opposite gender couples. The New York court is traditionally fairly liberal, so it seems that the first or second option are the most likely. If the court orders full marriage rights for same sex couples it would make New York the second state in the union to legalize same sex marriage. Stay tuned......

So, all I need to do in order to get married is find a husband and move to New York? Gee, that shouldn't be a problem . Any takers? Sigh....

Just in... no gay marriage under NY law. More details emerging.

I do not see the NYS legislature seriously taking on this issue anytime soon.

Ugh. Read the decision here. I'd love to hear an interpretation from one of our lawyers. My non-lawyer's read of it is that they essentially bought the argument that marriage is intended to provide an optimal environment for raising children, and did not feel that compelling evidence was shown that children in same-sex households developed no differently. But again, that's a (disappointed) lay person's read of only part of the opinion.

The 4-2 ruling, both consenting and desenting opinions, is fascinating reading for those of you into legal theory.

I find the dissent so much more reason-based than the majority opinion.

Not to be cynical about this, as I am sure this decision will be reversed in NY by some future court, but at least this latest decision will not help fuel anti-gay sentiment at the ballot box this fall.

Could someone please explain to me how you can decide something because it's not in the historical tradition of a society? :confused:

The vote was not realy 4-2, but 3-1-2, with a concurring opinion that gave the majority.

I find it interesting that in an evenly divided court the vote was basicly split - 3 men vs 3 women.

Unfortunately the powers that be sort of dumped everything into this single appeal hoping they would win.

There is now no possibility of appeal or even of a similar suit coming through the pipe for some time - the gay marriage organizations will now have to concentrate on the legislature for further progress. It will be a long uphill battle for many years that way.

R

I am very saddened to just read about this. Next up, we are waiting here in my State of Washington for the Supreme Court to make a ruling. The outcome could be any day. Fingers will be crossed.

Essentially the court decided that marriage was for procreation and proclaimed heterosexuality better for children. Bosh.

While I'm not thrilled to be a lawyer in New York at this moment, I take heart in the jurists that we have running our top court. The majority wasn't inflammatory, and the dissent was well-reasoned and provides a wealth of quotes for other state courts that decide the other way.

That said, the plurality opinion was clearly relying on rhetorical trickery, which the dissent wisely pointed out by analogizing this case to the two major Supreme Court cases dealing with same sex intimacy, Bowers v. Hardwick and Lawrence v. Texas:

But my favorite quote is a few pages later: The U.S. Supreme Court has already said that deadbeat dads can marry (Zablocki v. Redhail) and that prisoners can marry (Turner v. Safley), so the majority's avoidance of strict scrutiny analysis normally afforded fundamental right restrictions (and thus inevitably finding that NY's marriage resrictions are rationally related to the best interest of children), is somewhat disingenuous.

In every debate I have over gay marriage where my opponent claims that a mother and father are better for a child -- a claim I do not agree with -- I point out that that is an argument against gay parenting, not against gay marriage. I found it very disingenuous that the NY Court would rely on an anti-gay parenting argument in determining gay marriage rights. How can they say that the legislature's prohibition of gay marriage could have a reasonable basis in the legislature's belief that doing so is in childrens' best interests? The legislature's legalization of gay co-adoption in recent years is in direct contradiction and, perhaps, more indicative of the legislature's beliefs about what is in the better interest of a child than legislation passed in 1909.

My take on the majority opinion: Disappointing, but not surprising, given arguments like, "Some amici, however, suggest that the statute can be read to permit same-sex marriage, thus mooting the constitutional issues. We find this suggestion untenable. ... New York's statutory law clearly limits marriage to opposite-sex couples. The more serious question is whether that limitation is consistent with the New York Constitution." That whopper came from the amicus brief of NGLTF, unless I'm mistaken as to its source. With arguments like that, who needs opposition briefs?

The majority then return to their opening theme: "We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature." Phrasing the issue as whether NY's Constitution compels, not just permits, almost makes the outcome preordained.

But I continue to wonder why what follows, if granted equally to us under some name other than "marriage," is anything less than substantively equal: "Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State." In fact, apart from the tax advantages, which too many gay "activists" have deliberately chosen NOT to pursue because they see them as some sort of "backsliding," most of these benefits are already part of domestic partner benefits in states like CA that have them.

The majority's analysis under traditional rational basis grounds is proper, reasoned and just - and thankfully free of the polemics found in other such decisions, the briefs leading up to them, or the petulant press releases following them. Again, it is not what NY's Constitution compels, but what it and its legislature allows as a result of rational debate. The same applies to its finding that the Legislature could find that heterosexual parenting is optimal, and that fostering such parenting by limiting marriage to such couples is proper. Again, the Legislature could just as well have adopted the Brandeis-brief arguments and their somewhat sparse support, but just because it chose not to - assuming they were provided with them in lieu of litigation - does not mean it acted irrationally or discriminatorily.

Disappointing as it may sound, the historical fact - marrying monks and other alleged examples notwithstanding - is that the concept of gay marriage is NOT historically rooted in our culture and traditions. There is no error in limiting the definition of the fundamental right to marry to heterosexual marriage; those are the kinds of marriages that caused the marriage right to be recognized as fundamental in the first place. Of all the various legal regimes, constitutional interpretation must be the most careful and exacting, lest it be overextended and abused; see Roe v. Wade, which despite its slim underpinnings and wide overbreadth does not undo my belief that the right to reproductive choice is a fundamental one. We see many examples of this in the law, as in the focus in qualified immunity analysis on the nature of the specific right claimed, not its generalized sense. The majority's defining the right this way is consistent with this analysis - and does not preclude the Legislature from expanding the scope of marriage should it choose to.

Thus, the majority was correct to state that "Plaintiffs here do not, as the petitioners in Lawrence 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." The distinction is a legally valid one, however distasteful it may be to even those in the legal profession. It should not be cause to leave, however; just a lesson in picking one's battles better and deploying the forces at your command with greater skill - if not in declining assistance from unskilled irregulars as well.

Edited to add post-prandial postscript on concurrence and dissent: J. Graffeo's opinion is as clear a primer on constitutional reasoning as you'll find anywhere. CJ Kaye's dissent is valuable for its discussion of why gays should be considered a suspect class, which is where I've been arguing we need to go for at least a decade.

[ July 06, 2006, 03:55 PM: Message edited by: gmginsfo ]

Freedom of religion was not historically rooted in culture or traditions until the Bill of Rights was written. It was not part of the culture and traditions of most of the 13 colonies. Slavery, however, was most definitely part of culture and tradition.
Culture and tradition can change.

Freedom of religion might be dated as far back as Akhnahtan (sp?), but the more accurate, less reaching marker would be the Reformation in the 1500s. Thus, by the time our Constitution was adopted, freedom of religion had been at least a hotly debated topic for 250+ years, and was established - in part at least, for Protestants - for just over a century following the Glorious Revolution of 1688. The same simply cannot be said of the debate over gay rights, let alone the establishment of any as legislated freedoms, which date from the 1950s in this country. True, culture and tradition can - and should often - change, but the mechanism for effecting that change should be the people, whether directly or thru their legislators, not by less people than you can count on your fingers.

Christ this is just getting so freakin' tired, all this sanctity of marriage bullshit. Britany Spears can marry for 55 hours, get it annulled and then marry Vanilla Ice, but we are a threat to marriage. Ted Kennedy can get his decades-long child-bearing marriage annulled for no real reason other than he is a Kennedy but we are a threat to marriage. Larry King, Elizabeth Taylor and the Gabor sisters can combine to marry the equivalent of the population of Lichtenstein, but we are a threat to marriage. Death row inmates can woo a woman and marry her without ever consumating the relationship, but we are a threat to marriage. Stop the charade-marriage long ago stopped being about uniting to bear children, if it ever really was.

[ July 07, 2006, 10:40 AM: Message edited by: George Twins fan ]

George, I agree withn you 100%, but that's not what this opinion was about. Whenever that argument is raised, it's easily dismissed for the same reasons you cite.

Although I generally agree with this statement, sometimes it takes "less people than you can count on your fingers" to ensure that the liberty and equality of a despised minority does not get voted away under the weight of a majority. If you want a good example of this, just look at the Supreme Court's treatment of segregation through the Plessy v. Ferguson - Brown v. Board axis.

I almost--almost!--bought the argument espoused by some that civil union rights that are substantly equal to marriage is an acceptible position for the GLBT community. But the problem--as the New York State government's response to this decision has made clear--is that it's too dangerous to pin civil union rights on legislative whims. This year I can't get a civil union. Maybe next year I can. Maybe the year after that, the legislature changes it's mind and I can't get civil union'd after all. This seems inimical to the whole point of marriage (or civil unions): security and stability between two people who have made a commitment to each other. This hodgepodge of legislative caprice is an untenable position, especially for gay families, considering that New York allows gay adoption and coparenting. Now the speaker of our state assembly, Sheldon Silver, wants to hold a caucus, since he doesn't know what to do. I don't want marriage rights to be dependent on whether my state representative has a backbone.

Also, since (1) there's currently just too much antigay quesiness for GLBTs to ever be called a suspect class (and the Supreme Court has already rejected this argument), and (2) the rational basis/heightened scrutiny/strict scrutiny analytical framework doesn't work as well for gays and lesbians as it does for other identity markers (gender/race/alienage) (see Professor Kenji Yoshino's article \"Covering\" in the Yale Law Journal for an excellent analysis) it's critical that litigants press on the fact that marriage is a fundamental right that--like in Loving v. Virginia--should not be circumscribed by discriminatory beliefs, to the detriment of a minority. To extend Ms. de Blazer's argument, interracial marriage--like gay marriage--isn't deeply rooted in our nation's history either, but that doesn't make prohibitions of it ok.

Lastly, I won't Monday morning quarterback. I won't criticize the the NGLTF or anyone else who submitted Amicus briefs, especially since these friend of the Court briefs are usually submitted to make ancillary arguments not raised by the direct litigants. So ultimately, they were made to help, not hurt, the effort. Furthermore, at the state level, these marriage rights cases are cases of first impression, so all these interest groups are fumbling around in the dark, so I can only applaud anyone working towards full equality. Lesson learned, and on to the next battle.

[edited for clarity]

[ July 07, 2006, 12:44 PM: Message edited by: Neptune ]

But scientific knowledge changes more quickly, and should not be open to any majority-mechanism for acknowledgement or confirmation. The biological facts are well known - there are more "genders" than male and female, or conversely, humans do not come in just male and female varieties. Creating "one man/one woman" marriages therefore eliminates an entire group - the intersexed - from marriage. Because we know the Supreme Court has stated marriage is a fundamental right, it is therefore impossible to defend any marriage laws created such that certain groups cannot entire into the institution.

I doubt that is how the pro-marriage equality groups argued their case, but it does circumvent the whole "tradition" concept (which should also have negated the entire Brown v. BOE decision).

FINALLY, some decent debate without rancour; thank you, Neptune and CPT! I understand your point about legislative caprice, but inherent in my statement that it is the proper arm to make these changes is the belief that once the law is changed, it will stay that way. I'm not so ready to believe that legislatures will act so arbitrarily, making, undoing and remaking the same laws over and over again.

I would differ with the longevity of interracial marriage. True enough that it was sparse until recently, but it had been continuous despite its sparsity, and even more continuous were cross-racial liasons. There were gay couplings of various sorts since Achilles mourned Patroclus - I reject the notion that David and Jonathan were "lovers" - but never anything approaching the interracial marriages that some found troubling enough to outlaw until only recently. That is the sort of history that motivated the decision in Loving and we just don't have it here.

And so we learn, to not stubbornly maintain that the thing which is not, is. Certainly NGLTF and the other amici were motivated to do well for our cause, but their methods were wanting. Another method we should discard, and the sooner the better I say, is the rote confrontationalism, the petulant, strident, neo-Stalinist talk evidenced yet again in NGLTF's shrill post-mortem press release. When will these people learn that we are not going to win friends, allies and equality by these silly outbursts and equally repugnant displays of inanity? This lesson too should be learned, so we might actually win the next battle.

CPN, yes, science does uncover knowledge faster than legislatures enact laws or courts interpret them, so the sooner we get a definitive word on what causes homosexuality, the better. To my mind, it's been established well enough that it's genetic, but I also accept the fact that, at least as a matter of law that can be relied upon in a courtroom, it's not.

I am aware that the decision was not based on my rant about the sanctity of marriage. But since the court won't do anything until the legislature does, the whole sanctity of marriage arguement is quite relevant given that it is the base reason why the legislature won't do anything IMO. Either the representatives believe it themselves or they believe their constituents believe it (and I dare say many, many of them do), all resulting in a trickle down effect.