Yesterday the New York Court of Appeals, the highest appellate court in that state, rejected the arguments of forty-four same-sex couples that their state’s constitution required the recognition of same-sex marriage.
There will be much gnashing of teeth and rending of clothes—on both sides of the aisle—over Hernandez v. Robles. The hate-wielding conservatives already trumpet it as a victory for their outdated worldview. As a vote-counting progessive who believes in equal rights for all citizens, I’m more excited about the vote split and Chief Judge Kaye’s impassioned dissent. Of the seven-person panel—one of whom did not participate—the majority opinion only garnered four votes, one of which came in the form of a separately written concurrence.
The Chief Judge writes, by way of introduction, that the:
Plaintiffs . . . include a doctor, a police officer, a public school teacher, a nurse, an artist and a State legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children—from toddlers to teenagers . . . In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage. Solely because of their sexual orientation, however—that is, because of who they love—plaintiffs are denied the rights and responsibilities of civil marriage. This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.
That is not language that is squeezed from precedent or statute; that’s just flat-out guts and feeling. I like it: it reminds you that this is not a case about laws or constitutions, not really, but about human beings who want to have the same lives as anyone else.
The Chief Judge strides purposefully through Lawrence v. Texas, the landmark Supreme Court case overturning laws against same-sex sexual activity, and, a bit suprisingly, Loving v. Virginia, the 1967 Supreme Court case that demolished laws prohibiting marriage between men and women of different races. What struck me the most was that the dissent argues that “the classification challenged here should be analyzed using heightened scrutiny,” one of the most powerful tools for ensuring that rights are preserved.
This is a revolutionary statement, one which has not yet been recognized by the Supreme Court. In addition, courts have also rejected the dissent’s argument that one might find protection for sexual orientation in laws prohibiting discrimination on the basis of sex (Title VII litigation in this field has been a particuarly depressing failure). This is not a dissent based on existing interpretations of the law: this is a dissent based on how the laws should be interpreted.
Which is why it is quite wonderful to read. It’s a portrait of a better world, one where we value all citizens, and their liberties, equally. We are not there yet, but I have great hopes that we are making progress, and in the words of the dissent, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”
You can read the case here.
Update: Daily Kossak Bill in Portland Maine thanks the New York court from saving him and his partner “from ourselves,” since if they were able to get married society would crumble. Hee. Also check that rad quote from PrettyFakesFave Howard Dean, tumping the decision for relying “on outdated and bigoted notions about families . . . .”
I have too much to say to this and not enough time. I am chilled by the Chief Judge’s statement, but not in a bad way. It’s overwhelming pride that someone in such a position spoke with a heavy and straightforward heart. A conviction that more people should possess.
I agree, it’s a portrait in the very early stages. It may take a while to complete the picture, but at least we are making steps towards a whole future, for everyone. All humans, not man, not woman, HUMANS. It makes the light shine differently when you remove the gender trap and start viewing people for what the are: a part of the human race.
Thanks, gorjus, I appreciate your candor and passions as well. The lovingly was that your wrote this lends to a future that we see you shaping. One where equality is special and something to be cherished, not abolished. Your passions will help in paving the road to that future. I will never be able to thank you enough for that. Love and snuggles all for you.
could you say a little more about this phrase “the classification challenged here should be analyzed using heightened scrutiny.” I don’t understand how saying that we should look at something more carefully carries this much weight. I suspect that I don’t understand what it means in legal circles.
why did you find the cite of Loving v. Virginia surprising? it seems to be more on point than lawrence v. Texas…or at least JUST as important. hmpf. maybe not.
I find the title VII protection based on sex compelling (if you are gay and want to marry another woman, the discrimination comes at you because of your gender. if a MAN wanted to marry the same woman, he could). The problem is that most that want to stop gay marriage don’t agree with the fundamental root of Title VII protections. those protections cover inborn traits like gender and race.
The protection of homosexuals is askew because many believe sexual orientation is not chose. more to the point, it cannot be chosen. that would mean that it would be ‘planted’ as an inborn trait by god. if god makes you gay, then it isn’t a choice. if it isn’t a choice, it isn’t a sin. if it isn’t a sin, then how can the christian right be AGAINST it…and, i mean, that’s the WHOLE POINT now isn’t it?
complicating matters is the fact that some in the gay community don’t quite embrace the idea that it isn’t choice, or that even if you ARE choosing, then it shouldn’t be held against you. now that’s fine if you want to be a live and let live person. however, it undermines a burgeoning civil rights movement that relies on the no choice argument (in the courts). its complicated by bisexuality.
You have people that are just now being allowed to think aloud about their sexuality and—unfortunately—they’re having to not only decide at what pace they can move for themselves, but also make the political calculation of how fast they want to drag the country.
I’m really not optomistic about this ruling like you are gorj. I’m very concerned that losing big and early on (as has happened here as well as a number of state referrendums) will cause the ‘solution to take a very long time to come along. If we are waiting for the Supreem Court to provide the solution, (the most likely fix-it), then i think it will be a generation before things are made right. no matter how pleasant the dissent may be to read, it doesn’t make me feel so optimistic.
And Hud, ‘heightened scrutiny’ is phrase with a particular legal meaning. laws are given analysis based on strict scrutiny, intermediate scrutiny, or what’s called a ‘rational basis’. they denote levels of deference granted the lawmaker or actor (as in, if there is a RAIONAL BASIS for this law, it can stand). the court currently doesn’t require a heightened level of scrutiny for sexual orientation. For example, laws that address race in treatment of an individual get strict scrutiny because of the history of discrimination in such laws.
congress outlined a few protected classes when it passed the civil rights bills of the mid 60s. the courts established the different levels of scrutiny they would give to the behavior under the law. Basically, people have tried to shoe-horn sexual orientation into the wording of the civil rights act which did not actually contemplate it when it was written.
jp!, I found the use of Loving surprising because I believe it is not completely on point. While I agree with the Chief Judge, Loving is fundamentally about race, not gender or sexual orientation. It has become Step One in many arguments based on equal rights and privacy, but I still think it is a leap to say that it per se applies to sexual orientation.
Title VII does not apply to sexual orientation, and we’re not going to mash it around to work that way. It’s just not going to happen. Because it is not Constitution-based, but rather Congress-made law, the courts have much less flexibility in how far they can apply it, and no court in the nation has said that Congress intended for it to protect sexual orientation (based on my last check at the beginning of this year). It protects discrimination based on gender, period, and I myself am a little loathe to attempt to stretch it to where it covers sexual orientation.
Hud, jp! talked about what strict scrutiny is, but simply stated it would be important if applied because it would make it harder to pass laws against homosexuality or those who are homosexual.
jp!, I think after Lawrence abruptly slapped Bowers v. Hardwick around (it only took around 20 years, relative minutes in the legal world), I regained my confidence as to how things will work out. I think losing “fast” is going to be good, where a body of lower court decisions can be built and societal acceptance coalesce. It is important to remember that New York’s Court of Appeals is appointed . . . people change and so do the laws. I do not believe that courts are as responsive to public opinion as some do, but I certainly believe that they do not exist in a vacuum, and the members of the courts age and mature and change themselves.
I appreciate reading your thoughts. I am not a hate-wielding conservative, but I tend toward conservatism none-the-less. I am studying this issue (more sociologically than legally) and want good reason to change my positions. Having been raised with certain presuppositions, it takes great effort to rearrange the base without falling on your tush. I think that the discussion raised by Mr. Mooch about choice is an important one. I don’t perceive sexual orientation to be like a switch. . . more like a dial, with a wide range of settings. Moreover, to say that choice is not involved in every sexual encounter is really to class humans as instinctual sexually. I can’t do that. The logical progression of that thought would lead to pretty chaotic conclusions.
Here is a question. The Judge says: “For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives.” But isn’t that a conservative-borne perspective. Why do homosexuals or even “free” heterosexuals for that matter want weddings that are symbols of patriachal, conservative constructs? I understand wanting civil recognition for essential relationships and the appropriate services and rights, but weddings?
That’s an interesting question, BRD, and I cannot provide the full range of answers. I do think I can provide one. Even though marriage has a fairly terrible history—a joining of a woman to a man in submission, sometimes unwillingly—for at least a few decades it has been the ultimate public and social recognition of the private love two people feel for one another.
And therein lies the problem. As a hetero male, I can take the “ultimate step” and declare that I don’t just love somebody, but that I want to make a public, social, and legal arrangement with them that establishes a union. In our society, and ideally, marriage is that essential public recognition of a private love.
And that’s what I think we should have same-sex marriages. We already have private same-sex love; why can we not have the public and legal recognition of that private love?
Thinking further on jp!’s comment that Loving was not surprising, I see that he may be right. There were already black folks and white folks in love with each other in Virginia in the 1960’s. But the public sphere refused to recognized their love, until the law was overturned.
Which leads me again to feel pride that our society has reached the level where we accept and bless the private love of those of the same sex, and hope that we one day will honor that private love with public recognition.
so what’s the resolution you feel optimistic about? There seem to be 4 ways to go:
1. State by state legalization
2. Protection by Federal Law
3. Protection under a Constitutional Amendment
4. Supreme Court ruling
I don’t see 2 or 3 happening for decades. maybe less if there is a continual societal change. I’ll agree that things are MUCH better for the homosexual community in the last 10 years than before. I’d go so far as to say the last 20 years have seen more acceptance than the last 200. Is THIS what you are optimistic about? We would have to not only have democratic control of the congress but the strength of an extended control of the legislature. we’d also have to have a willing president to sign off on the bill (dem or not).
If you are waiting on 4, then you’re looking at a ‘hope it happens in my lifetime’ scenerio.
1 is a problem. it creates a patchwork of marriage in different geographical locations. I have a real problem with civil rights changing like that depending on geography. in anticipation of this, congress passed the “Marriage Protection Act” 10 years ago. this allowed other states NOT to recognize a state’s gay marriage (if they’ve chosen to allow it). This law hasn’t been challenged yet. In a general sense, it seems to be unconstitutional, conflicting witht he “full faith and credit” provision of the constitution. That provision makes the various states recognize the laws, agreements, etc of the other states as existing (sorry. cliff notes version). on its FACE it seems unconstitutional, but if you put that issue before THIS court, you may not like the result. depending on the next elections and appointments (no conservatives will be off the court for at LEAST a decade or 3), the result from the supreme court could be disasterous for a while to come. (You wanna trust that Lawrence Justices to leap this far?).
So, back to the main point…i just find no optimism. the best hope seems to be that congress will pass a law extending civil rights protections to the homosexual community and that level of rights extension happend ONCE, after the civil rights movement (Americans with Disabilities Act). the two are hardly comparable in terms of public support, i think.
Don’t you think that in this world, the strongest argument for change is the presence of committed couples in our midst. I just spoke with a friend in a same sex relationship who has two children. Her presence in my life demands my attention. My mom’s best friend’s daughter is in a same sex relationship. That demands her attention. Eventually change legally will happen because of these presences and our relationships to them. I think the use of the word marriage has complicated the process of giving appropriate civil rights and access to people now. The demand for “marriage” seems like a red herring to the process of real change.
But it’s only a red herring if you assume “marriage” is some kind of religious rather than civil contract. Historically, the Puritan forefathers made it very clear in their minds that marriage was the business of the state / colony and not of the church. Would that we moderns were so enlightened!
Yes I think that you are right about that. Someone told me that early marriage was strictly civil and the trip to the church for a blessing of the civil contract came after the fact.
Brd: yes. that does change minds. I think the real reason that there’s THIS much of a gain in acceptance for the homosexual community (today) is that gay people are beginning to acknowledge their own existence without fear of violence and retaliation. the problem is that if you attack this issue at the wrong time (As i argue has been done) then you get your changing society with thick legal barriers that are, as a practical matter, harder to undo than they were in the time when the society was less tolerent.
There is a long way to go from my mom shaking her pre-conceived notions to equality under the law. My concnern is that this is getting harder every day with the actions of the state/states. The Fundamentalists have this figured out. They’re putting their message out about the ‘gay agenda’, but the real work being done isn’t pr. it’s knotting up the legal works for would be gay civil-rights advocates. Winning the PR war may be a fruitless victory if the laws remain the same.
Maybe this is where I diverge and started questioning Gorj about his optimism in the first place. when i say i’m not optimistic, i’m talking about the law and making it right by the people…not about how society is changing.
bulb: Marriage is one of the few religious sacrements/activities which also has a legal tie to it, mixing the the secular and non-secular. the civil union is an attempt to get around this tie/association.
Polly—
My point is a precise historical one; that in the early history or better yet local pre-history of our country, mariage was not seen as a religious ritual at all but rather a civil matter. Yes, Marriage is a scarament in Catholic nations, and yes in England with its national church stuff around mariages traditonally took place at churches ncluding the legalities like the posting/reading of the banns. In Early America, however, this was not the case, due to the idealistic, however often failed, notion of religious freedom and non-state interference. In rendering unto God what was God’s and unto Ceasar what was his, Puritans put marriage squarely in the Roman camp! Somehow, the type of folks who blather on about the Judeo-Christian underpinnings of America always miss this key fact.
ah. i see. true. the problem is that the parties involved in the present day fight just want their way. the arguments against because of the ‘damage’ to the ‘institution’ of marriage (what qualifies as an institution anyhow?). i’ve been anxious to see good arguments and disappointed as how bad they are.