Wednesday, May 31, 2006

Same Sex Marriage Belongs in the Courts

New York State's top court heard oral arguments today in the final phase of Hernandez v. Robles, a suit which aims at a clarification of New York's civil marriage laws to recognize that the fundamental right of marriage, as guaranteed by both the state constitution and established court precedents, includes same-sex couples.

The proceedings, lasting two and a half hours, were recorded and archived on the New York State Court of Appeals' website, and can be viewed here. One of the many highlights occurs at approximately 1:40:00, when an attorney for the State is asked directly if he can list any potential adverse effect of legalizing same-sex marriage. He cannot.

The State's opposition to same-sex marriage hinges on two arguments. One is that civil marriage is fundamentally related to biological procreation, a notion I refuted in an earlier post under the section headed "Lie #2."

The second argument is that the regulation of marriage is controlled by the legislature, not the courts, a position held by many social conservatives around the country.

This assertion ignores one of the central points of our constitutional democracy about checks and balances and the separation of powers. Indeed, the legislature has the power to regulate marriage, and there is nothing preventing it from legalizing same-sex marriage tomorrow other than its own intransigence. The State's argument that the proper venue for the resolution of the same-sex marriage issue is the legislature automatically invalidates all of the other claims that they put before the court, such as procreation and cultural tradition.

But having established that there is in fact a fundamental right to marriage, then it is the proper role of the courts to step in when the legislature fails to act to protect those rights; in fact, they have a constitutional obligation to do so.

The gaping flaw in the assertion that only the legislature can regulate marriage is predicated on the historically unsustainable and undemocratic claim that the majority has the power to determine the rights of the minority. In fact, the very essence of democracy includes an independent judiciary which is capable of acting contrary to the will of the majority in order to safeguard fundamental rights for minorities.

The history of the civil rights movement in America shows that it is almost always the courts who are the vanguard at the ever-expanding frontiers of liberty. It was not the majority who took action to desegregate public education or to allow interracial marriage. It does not require majority consent to legalize same sex marriage.

As an American, I am guaranteed by virtue of my citizenship full equality under the law. I do not have to wait patiently outside the gates of freedom politely waiting for an invitation to enter that will never come.

I claim what is mine. Now.


Jarred said...

This is great news. Hopefully, things go in our favor.

Personally, I think it inevitably will, no matter what hurdles and pitfalls may waylay us in the short term. But all the same, I'd prefer the inevitable occur sooner than later.

Robert Bayn said...

I believe if Gay Marriage is weighed in court and the Constitution is applied to it, they have no choice but to award equality.

Matthew said...

Amen, Andy. Awesome post. You've been doing excellent work on this subject of late. Kudos. I especially liked the following bit...

"... is predicated on the historically unsustainable and undemocratic claim that the majority has the power to determine the rights of the minority."

Indeed. In fact, the Constitution is there to protect the minority, rather than simply grant the majority whatever it desires 100% of the time.

And you're spot-on about checks & balances. One of the reasons the courts exist is to check the legislature if it's not doing its job right.

Thanks again for the post.

little-cicero said...

"This assertion ignores one of the central points of our constitutional democracy about checks and balances and the separation of powers."

So if the legislature passes a law of definition saying "Marriage is between a man and a woman" and a case comes between the court saying that a man wants to marry another man, how in the world can the court rule in their favor without committing an act of judicial activism? You can't call it marriage if it doesn't fit the legal definition, no matter how much you want to.

The only way to do this is to change the definition of marriage, and you probably can do so, but you would prefer a swift victory to a gradual victory.

Now, if the state definition is "Marriage is between two people" the Court cannot rule against a gay couple. A strict interpretation will serve you, but only if you have the legislation to back it up.

Andy said...

Oh, Little Cicero, you and your loaded, meaningless rhetoric -- the "redefinition of marriage" and "activist judges."

First of all, in this particular instance, we are discussing law as it applies to New York State. Through a variety of cases like Griswold, Loving & Turner it has been established that there is a fundamental right to marriage. Now, it is conceded that the government -- any branch -- may restrict access to the right of marriage. For example, blood relatives cannot marry and minors under a certain age cannot marry. Those restrictions are valid because the state can demonstrate a rational basis for doing so. There is not a rational basis for denying marriage on the basis of gender discrimination; that is to say, a woman in New York State is legally entitled to marry a woman under every single restriction the state places on marriage access except for gender. As the state cannot provide a rational basis for doing so, it is therefore gender discrimination and therefore illegal under the State constitution by virtue of New York's equal protection act and the full faith and credit clause.

When the court fulfills its constitutional obligation to ensure equal access to fundamental rights that is not "activism," that is the job for which it was created.

If you can respond to this with a coherent, Constitutional argument rather than buzzwords lifted from the American Family Association's webpage, I'll be happy to entertain it. : )

little-cicero said...

The right to marriage does not pertain to this argument if the state's legal definition of marriage as stated in its constitution is "between a man and a woman" I am not talking about a symbolic definition, I'm talking about a legal definition. I assume that the definition in your state's constitution is "between a man and a woman" as with almost every other state. If not, I'm with you 100%- the state has no right to keep you from marrying Mr. Right (that has always been my position, but it seems that the word "definition" frustrates you too much to see that).

As to the constitutional obligation, you have yet to prove to me where in the constitution it says anything to the effect that a gay union and a straight union should be given the same legal treatment. If there was an explicit right to equality of all kinds I would have to concede to your argument that the Constitutional interpretation would rule in favor of gay marriage, but neither clause exists to my knowledge, so any HONEST interpretation of the Constitution will continue to rule against you until you bring legislation to change the legal definition of marriage.

Is that coherent enough? :)

Andy said...

Well, it's close. : )

Actually no, New York State does not officially define marriage as between one man and one woman, and the legislature has repeatedly refused to do so. Attorney General Eliot Spitzer says same-sex marriages are allowed by the Constitution.

The case arose because the language on the marriage license itself says "groom" and "bride." The City of New York would not grant a marriage license to a same sex couple that applied in 2004 because the Clerk could not figure out how it would be filled out if the gender of the signers did not correspond to the traditional understandings of "groom" and "bride."

This argument about a "definition" of marriage is really a red herring. Both cultural and legal meanings of "marriage" have mutated radically over the past centuries, and in civil terms just within the last half-century we further clarified marriage by saying the race of the couple is irrelevant, by establishing no-fault divorce (New York, by the way, is one of very few states that does NOT have no-fault divorce), by establishing that a woman can be raped by her husband, and by eliminating stereotyped gender roles in marriage by ruling that in the case of divorce, the mother is not automatically granted preference over the father in terms of custody, and ruling that the wealthier member of the marriage has the obligation to pay "maintenance" to the dependent partner regardless of gender (in other words, it doesn't have to be the ex-husband paying child support). These are RADICAL changes from the understanding of marriage that would have been found in this country 100 years ago; so to say that "redefining" marriage is something new is not accurate.

But it's a red herring for another reason, too, and that is that the plaintiffs are not seeking any change in the legal definition of marriage at all, merely a clarification of the law that removes the different-gender barrier. This is far less radical than it might sound: you probably know that historically the English language has favored male pronouns, but with the legal recognition of gender equality, states across the country now read older law that refers to "he" "him" or "his" in a gender-neutral way so that the law applies equally. In the same way, "groom" and "bride" could be read in a gender-neutral way.

The State is, of course, arguing that by "definition" marriage is limited to different-gender couples because of the centrality of biological reproduction in marriage, but that, as I've shown, is a faulty argument. So their "definition," the one you are defending, is what does not meet the constitutionally required "rational basis" test for applying restrictions to a fundamental right.

In that case, it is not that we must find a way to "change the definition of marriage," but rather to educate the state that they have misunderstood the law and erroneously excluded valid applicants from participation in a fundamental right.

Andy said...

you have yet to prove to me where in the constitution it says anything to the effect that a gay union and a straight union should be given the same legal treatment

Ah, you are also here falling into the same trap the State of New York has by saying "there is no fundamental right to same-sex marriage." Again, another big red herring.

The cases I listed above (significantly Loving, Griswold & Turner) have established that marriage is a fundamental right. We are not seeking a "new" right to same-sex marriage, merely equal application of rights of marriage to people without regard to gender. And as I have pointed out, the government can restrict access to fundamental rights when there is a rational basis for doing so. None exist in this case.

kr pdx said...

question: is LC right that "most" states have a male/female clause in their Constitutions? I suppose after that rash of ballot measures last year this might now be true?

Andy said...

I am not entirely sure, but I don't believe that is accurate. The reason of course is that until recently, governments did not even remotely conceive of the idea of marriage between two people of the same gender; it wasn't so much that they were trying to prevent it as it never occurred to them to do so. That is why it is particularly ironic when conservatives talk about "redefining marriage": all those ballot measures and amendments were rushed through in a panic because they realized that in fact the law did NOT define marriage the way they insisted it did.

Andy said...

Also it should be pointed out that sometimes there are recognized differences between what a law literally says and what it is understood to mean; for example last week I pointed to the First Amendment which CLEARLY says that the government cannot abridge the free exercise of religion, and yet established jurisprudence understands that there are a variety of applicable laws that could potentially restrict religious freedom: again, there is a rational basis for doing so in those instances.

kr pdx said...

eh, probably the law didn't, but I expect a history of case law probably did somewhere(s)

I wonder if the anti-Utah-statehood period includes any federal legal stuff about one-man-one-woman ... probably they didn't figure it was necessary to pass anything, since they could just exclude the polygamist proto-state until folks there caved on the issue in their own legal wranglings.

kr pdx said...

(I recognize modern "marriage" is not terribly traditional blah blah blah ... the religious conservatives lost the "redefine" movement about 200 years ago, to the Romantics ... and they knew it at the time, kicked up a very huge fuss ...previous comment just poking around intellectually)

Andy said...

Further clarification: Griswold doesn't establish a right to marriage, but it says that marriage is valid even without intent to procreate.

little-cicero said...

Start the Halleluja Chorus my opereto friend, we have attained clarity and intellectual progress :)

Well, I've never thought that the procreation argument had anything to do with the Constitutional argument, but rather the legislation argument, and frankly, as much as it will disappoint your readers who love to hear my disagreement (: I'm going to have to agree from a purely Constitutional standpoint that the state of New York cannot use marital certificates as a surrogate State Definition of Marriage, and on those grounds, the New York Supreme Court cannot ban gay marriage on those grounds.

As much as I've brought up the "legal definition of marriage" I'm surprised that just now you are answering it, but this is my fault for invoking what you percieve as a "red Herring". So in the State of New York, it seems that Same Sex Marriage is simply inevitable- what you have to do to accomplish it is forget entirely about the Federal Level and focus all of your gay marriage-energy on the State Level, as that is the only chance you have.

Then I'll have to retreat to Ohio!

Andy said...

Correction to a misstatement I made in response to KR PDX: 45 states define marriage as between a man and a woman.

little-cicero said...

Oh, I assumed it was 48 before the California redefinition. Thanks for the fact.

kr pdx said...

! That's more than I thought had formalized it!

Is that state constitutions, or just laws?

Andy said...

From yesterday's radio address by the Preznit: And today, 45 of the 50 states have either a state constitutional amendment or statute defining marriage as the union of a man and a woman. More information than that I do not have at the moment. But I did want to point out for the couple of readers who claim I can't ever admit to being wrong that I most certainly can.