July 6, 2006 3:04 PM
Posted By News Questions
& comments 1
New York Rejects Marriage Rights for Same-Sex Couples
Earlier today, the New York Court of Appeals (the highest court in the state) ruled 4-2 against 44 same-sex couples seeking the right to marry under the New York State Constitution. Ruling that denying gay and lesbian couples state-sanctioned marriage and its accompanying benefits violates neither due process nor equal protection, and suggesting that accepting the state's reasons for deying marriage rights represented judicial restraint, the court found that the state's marriage regime was permissable under rational basis review. Today's ruling can be accessed here.
The court encouraged those on both sides of the issue to pursue support from the state legislature, though Chief Judge Kaye filed a vigorous dissenting opinion, joined by Judge Ciparick, noting that "separate is inherently unequal," and concluding that "future generations will look back on today's decision as an unfortunate misstep."
Massachusetts became the first state to grant same-sex couples the right to marry in May 2004, after being ordered to do so by its high court. In 2005, California's legislature became the first in the nation to pass a bill authorizing same-sex couples to marry, but Governor Arnold Schwarzenegger vetoed it.
Marriage cases are pending before high courts in several other states, including Maryland, New Jersey, and Washington. According to Susan Sommer, Senior Counsel at Lambda Legal and lead attorney in Hernandez v. Robles, one of four marriage cases decided today, "Today's decision refuses to recognize that gay and lesbian New Yorkers and their families are full citizens of this state. But this struggle is far from over."
Mainstream media and legal pundits have overlooked the significance of the New York high court's decision on same-sex marriage (the "Hernandez" case). It's not just about gay rights. It's an activist judicial assault on Americans' fundamental constitutional liberties.
The court majority seems to hold that irrational prejudice is a rational basis to discriminate in the allocation of constitutional rights. Here's a key passage from their decision:
"Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home. And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households."
Note that the decision (authored by Robert Smith, Republican Gov. George Pataki's newest appointment to the State Court of Appeals) implicitly acknowledges and then inexplicably dismisses the science disproving societal stereotypes about gay people's child-rearing abilities. There's "no scientific evidence to support" that kids do worse with gay parents, he admits. But no matter -- "the Legislature could rationally proceed" to discriminate based on falsehoods.
The majority's repeated use of the phrase "no evidence" is more than a little misleading. In fact, the American Psychological Association and other national and state-wide professional organizations provided the court with abundant evidence that children of gays do just as well as their peers who have straight parents. This conclusion has been consistently confirmed in scores of independent studies conducted over the last 30 years. The few who claimed contrary findings have been exposed as quacks, whose methodologies were sometimes comic, but never remotely rigorous or scientific.
If we're to take the majority's Hernandez decision seriously, it means that discrimination is rational and therefore constitutional if prejudice supports it and sound science refutes it. What would be left of the Constitution's Equal Protection Clause under that principle? Has there ever been discrimination that could not be linked to prejudiced misconceptions?
The good news is that the decision cannot be squared with established constitutional doctrine, and doesn't purport to overrule it. Until Hernandez is overruled, which Chief Judge Judith Kaye says in her dissent that she is "confident" of, it is best regarded as New York's contemporary Bowers v. Hardwick, the US Supreme Court's infamous antigay decision rendered in 1986, which in 2003 the Court overruled with the declaration that it "was not correct when it was decided, and...is not correct today."
Mainstream media and legal pundits have overlooked the significance of the New York high court's decision on same-sex marriage (the "Hernandez" case). It's not just about gay rights. It's an activist judicial assault on Americans' fundamental constitutional liberties.
The court majority seems to hold that irrational prejudice is a rational basis to discriminate in the allocation of constitutional rights. Here's a key passage from their decision:
"Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home. And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households."
Note that the decision (authored by Robert Smith, Republican Gov. George Pataki's newest appointment to the State Court of Appeals) implicitly acknowledges and then inexplicably dismisses the science disproving societal stereotypes about gay people's child-rearing abilities. There's "no scientific evidence to support" that kids do worse with gay parents, he admits. But no matter -- "the Legislature could rationally proceed" to discriminate based on falsehoods.
The majority's repeated use of the phrase "no evidence" is more than a little misleading. In fact, the American Psychological Association and other national and state-wide professional organizations provided the court with abundant evidence that children of gays do just as well as their peers who have straight parents. This conclusion has been consistently confirmed in scores of independent studies conducted over the last 30 years. The few who claimed contrary findings have been exposed as quacks, whose methodologies were sometimes comic, but never remotely rigorous or scientific.
If we're to take the majority's Hernandez decision seriously, it means that discrimination is rational and therefore constitutional if prejudice supports it and sound science refutes it. What would be left of the Constitution's Equal Protection Clause under that principle? Has there ever been discrimination that could not be linked to prejudiced misconceptions?
The good news is that the decision cannot be squared with established constitutional doctrine, and doesn't purport to overrule it. Until Hernandez is overruled, which Chief Judge Judith Kaye says in her dissent that she is "confident" of, it is best regarded as New York's contemporary Bowers v. Hardwick, the US Supreme Court's infamous antigay decision rendered in 1986, which in 2003 the Court overruled with the declaration that it "was not correct when it was decided, and...is not correct today."