Thursday, July 06, 2006


The New York State Court of Appeals, the state's highest judicial authority, today rejected arguments on behalf of same-sex marriage.

I am still reading the ruling, and will have more to say later. So far, I can only say it is one of the most outrageously blind, uninformed, idiotic things I have ever seen.

Little Cicero would love it.

UPDATE: The complete text of the ruling may be found here.


Silus Grok said...

When you return, would you provide a link to the ruling, so we can discuss it from a common document?



Luke said...


Jeff said...

It's a pretty disappointing decision. I've started analyzing it on my site. The majority judges gave a pretty cramped reading of the law and seem to have gone out of their way not to find a constitutional right to same-sex marriage.

Jarred said...

I have not read the whole ruling. However, after getting far into Section III of the ruling, I've found little more than justification based on conjecture and what legislature "might rationally deduce." Which is strange, consider many of the things they say that legislature might "rationally conclude" have no real evidence in support, by the ruling's own admission. Funny, I thought "rational conclusions" were generally based on empirical evidence, not conjecture.

And I'm glad I wasn't drinking anything when they seriously suggested that someone might conclude that one of the purposes of marriage was to "stabilize relationships." I would've had to clean off my monitor otherwise.

Travis said...

Opponents of same-sex marriage are always saying that "legislatures, not the courts" should be deciding issues around marriage equality.

The court today affirmed that opinion.

So I have a novel idea -- how about the people who make this argument (and who put out press releases today praising that argument) show some conviction and say, I dunno, DO IT.

There has been legislation kicking around in the Senate (S.5156 co-sponsored by Tom Duane, Liz Krueger and others) for at least two sessions which would grant marriage equality.

The legislation has stalled in the Senate thanks to likes of Joe Bruno, etc (the people who praised allowing legislatures decide). Bruno has not even actually allowed DEBATE much less a VOTE on this legislation.

Perhaps this legislation would win, or perhaps it would loose, I simply wish those who said they want it to be left to the legislatures, actually followed through and meant what they said. I suspect when Legislatures do decide to give marriage equality, they will have another convenience argument they repeat, and repeat, and repeat.

However, their bluff has been called with this really, poorly written ruling (which seems to legally justify discrimination based on stereotypes). Advocates of marriage equality would be well-served to not let Bruno et als hypocrisy on "letting the legislature decide" fall by the wayside.

kr pdx said...

I'm sorry to hear this.

I'm surprised it went down that way.

As I don't have time to read that ruling (and dissent), I will be interested to watch you all discuss it/pick it apart.

(Andy, it is pretty hard to not see that LC bit as insulting. I'm not sure stating that you didn't mean it as such can dig you out.)

Andy said...

Well -- and obviously I will elaborate further -- what I mean by that is that they basically advanced Little Cicero's views on the state's "compelling interest" to promote marriage as a stabilizing factor in heterosexual parental relationships, without ever being able to suggest how extending marriage rights to same-sex couples might threaten that, and simultaneously ignoring that gay couples RIGHT NOW have children, be they biological or no, who are in need of the same legal protections. They advance the ideal of a child living with his married, biological parents as the standard to which the law must be held, although they intend to hold only homosexuals to that standard by denying them access to marriage. As IF the heterosexual community generally maintains that standard! This also flies completely in the face of established legislation declaring that procreative capability/intent is not a defining characteristic of marriage.

And among many other things, their deference to the legislature indicates they believe the rights of the few can legally be determined by the whim of the many.

It's one thing for an 18 year old child who's been raised in a conservative household to hold these views, but it's another thing entirely for judges on the state's highest court to rule based on erroneous assumptions and personal preference, as they choose to disregard scientific evidence and deliberately misconstrue established precedent in order to deny a group of citizens what they concede is a fundamental right.

little-cicero said...

I'm offended that you would make such an assumption- or maybe I'm just offended that you didn't insert a link in my name, but I wasn't posting anyways, so no hard feelings!! :) Nice to be back.

little-cicero said...

Oh, by the way, the difference (I'm not sure what the court's precedent holds, only my own precedent) lies in that I've never believed that people have the fundamental right to marry whomever they like- neither do you and neither does any court. Were it a fundamental right, it could not be overrided by the judgement of legislators as has been committed in cases of polygamy and incestuous marriage. In truth there is no great danger to life in either instance just as there is no danger to life in the case of SSM- the rulings that they are bad for society are based on medical and social understandings- the judgement of legislators.

So it's not that I'm willing to take away a fundamental right for the sake of my own ideology- I just don't think that any civil institution is a fundamental human right. Life, liberty and the pursuit of happiness is a fundamental human right, so if you are going to throw around such terminology, do so with those rights, not the fabricated right to marriage.

Andy said...

Ooooh...errrmmm, actually Little Cicero, you are incorrect.

Let me quote verbatim from the NY ruling:

The right to marry is unquestionably a fundamental right (Loving, 388 US at 12; Zablocki v Redhail, 434 US 374, 384 [1978]; Cooper 49 NY2d at 79).

I think (my lawyer friends can correct me if I'm wrong) that he also could have referred to Turner v Safley to find established US Supreme Court precedent for saying that marriage is a fundamental right.

Beyond that, Loving establishes that it's not just marriage but the ability to marry the person of your choice that is fundamental; saying that gays are allowed to marry as long as they marry someone of the opposite gender would be to adopt the argument that blacks were not discriminated against by anti-miscegenation laws, because they were free to marry -- as long as they married a black person.

And yes, the government does have the legitimate power to limit even "fundamental" rights, if it can show a rational basis and a compelling government interest that survive the scrutiny tests that courts have established for determining inappropriate discrimination.


Andy said...

PS, this discussion should be continued on the Hernandez v. Robles post, or no one will see it.

little-cicero said...

I misspoke when I said "any court". What I mean to say is that most courts find it constitutional to revoke the right to marriage, which does exist though in my opinion it is hardly "fundamental". I know that the NY court disagrees with me, but it also disagrees with plenty of other courts. The point of my comment was to show you that I am not in agreement with the court.

If they rule that marriage and choice of marriage are fundamental human rights, their is no reason that they should bar a brother and a sister from marrying one another. There is nor reason they should bar a woman from marrying two men.

You might say that the imminent threat to the common good lies not in the marriage but in the sex- well, that is what some anti-SSM activists might argue (not a route I'll ever take). I for one find it Constitutionally "iffy" to equate marriage to sex in a world where marriage rarely precedes sex.