Baseball Crank
Covering the Front and Back Pages of the Newspaper
July 6, 2006
LAW: New York's Highest Court Declines To Require Recognition of Same-Sex Marriage

Decision here:

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.

I discussed the lower court opinion at length here. The NY Court of Appeals identified two rational bases for distinguishing between same- and opposite-sex couples, and its reasoning (which is similar to my arguments in the post linked above) is worth quoting at length:

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. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.

The Legislature could also find that such relationships are all too often casual or temporary. 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. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. 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 oppositesex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

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. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule -- some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes -- but the Legislature could find that the general rule will usually hold.

Plaintiffs, and amici supporting them, argue that the proposition asserted is simply untrue: that a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex. Perhaps they are right, but the Legislature could rationally think otherwise.

And so, even here in liberal New York, the legislature will decide a contentious social issue (as the court stressed the legislature may). As it should be.

UPDATE: Georgia's highest court has reached the same conclusion, according to Howard Bashman. Opinion here.

SECOND UPDATE: Howard Dean calls the NY court's reasons - which merely allowed for the possibility that there could be something unique, special or valuable in traditional families - "outdated and bigoted notions about families". Tell me again how that "50-state strategy" is going, Howard? If the ignorant, knuckle-dragging bigots in New York aren't enlightened enough for the Democratic Party, well, that's a pretty small tent.

Posted by Baseball Crank at 10:37 AM | Law 2006-08 | Comments (4) | TrackBack (0)

I admit I do prefer when the legislature does the legislatin', and not the courts. However, as a NYC landlord, I see too often how the politicians count votes rather than priciples. If the law on the books said that white people could only marry white people, and so on, the courts would be expeected to rule on whether the state has infringed on its citizens right to marry, and enjoy the CIVIL advantages of that.

I think the courts should have allowed marriage between two people of the same sex, since any statute otherwise does deprive gays of the same civil rights as straights. Going one step further, such discrimination is generally rooted in religious beliefs, and we know just what the constitution says about that one.

I ahve no problem with a priest, rabbi or minister refusing to perform a marriage on their religious rules, and no state law should get in the way. I have issues with the state saying that a small percentage (and I have no idea what that number is) is denied a basic social right, and the courts agreeing. Our constitution says what our government cannot do (why don't people realize that), not what it can, or what we as citizens must do. We leave that for Congress and State Legislatures, or cannot pass a law the COnstitution says the government cannot do.

So the courts, in my non-law school view, punted. In truth, nobody knows what is in the best interest of the child. Joel Steinberg and Hedda Nussbaum were a straight couple, (may he burn for several eternities), and look how that turned out. Parenting is plain hard, and no crystal ball will tell you who is fit or not. No harm, no foul. If it bothers you that a couple is gay, well, look in the mirror, not at them.

Posted by: Daryl Rosenblatt at July 6, 2006 11:30 AM

Nicely put, Daryl. Especially the conclusion.

I haven't had time to delve into this decision, and I'm not a "Law-talking guy," but in the purely conservative sense it appears the Court punted/defered to the legislature.

I agree with that in principal. If the law jibes with the state constitution that's usually the end of the story. IIRC, that was NOT the case in Mass. and that's why the Court there directed the legislature to re-write the law or the Constitution.

Though this dissenting view gets traction with me:

"It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation," she wrote. "The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today's decision as an unfortunate misstep." [link]

Like everyone else (it seems) a little judicial activism is fine when I agree with it... :-)

Posted by: Mr Furious at July 6, 2006 1:33 PM

Considering that the Court found (correctly, I would say) that this is the business of the Legislature, it seems like the Court went to great lengths to tell the Legislature what it should be thinking. :)

Posted by: Jerry at July 6, 2006 2:27 PM

I presume the legislatures will eventually change the scheme...there are already movements in this regard...and that is why there is such a move for state constitutional pronouncements...the religion evangelicals know they are going to lose this battle, which is why there is such desperation in their measures...same is true with immigration...all these things sound good until there are actual victims, and then there is's usually called progress...some courts embrace progress, others punt to the legislature and slow the process down...but progress has a way of being the little engine that could...

Posted by: AstrosFan at July 6, 2006 6:50 PM
Site Meter 250wde_2004WeblogAwards_BestSports.jpg