A Stitch in Haste

The best word to describe the majority opinion in Hernandez v. Robles, overturning a trial court ruling that gender-based terms in New York State's Domestic Relations Law equate to an unconstitutional ban on same-sex marriage, would be "embarrassing."

The lightweight, circular, question-begging "analysis" the intermediate appellate court crafted might be the sort of decision one would expect from Judge Roy Moore, rather than from a supposedly impartial and sober appellate panel.

Here are my hasty stitches regarding the majority opinion:

--The majority, desperate to defend its indefensible consequentialist approach to the case, breaks the first rule of appellate advocacy: rely on binding authority. But of course there is no binding authority for the majority to rely upon, as New York has no bigot amendment and no statutory DOMA. So instead the majority spends most of its time citing to hornbooks, tangential trial court decisions and, most obnoxiously, the dissent in Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (2003), the Massachusetts gay marriage case. This is utterly astounding: relying on a Massachusetts opinion that is not only not good law in New York, but isn't even good law in Massachusetts. This is how absolutely desperate the majority is to find something — anything — to build its theory on. Like I said: embarrassing.

--As for the specific arguments the majority makes, they are anything but constitutionally derived. The majority invents a legislative intent that simply does not exist. The majority confuses the legislature's creation of the institution of heterosexual marriage with a limitation to heterosexual marriage. This is judicial activism, since, again, New York has no DOMA. Like I said: embarrassing.

--The majority then asks why legislatures have in fact created the institution of marriage at all, answering with — surprise — the false "it's all about procreation" canard. Of course, not only is such reasoning historically false, but it is also jurisprudentially impermissible. The Supreme Court's marriage jurisprudence, particularly Loving v. Virginia 388 U.S. 1 (1966), and Zablocki v. Redhail, 434 U.S. 374 (1978), have made it crystal clear that marriage is a fundamental right independent of the procreation issue. Like I said: embarrassing.

--How to resolve this conundrum? Simple: claim that Loving and Zablocki simply do not apply because they were about "traditional marriage" and therefore have no bearing whatsoever on the gay marriage debate. Why is the sky blue? Because red isn't the color of skies. This is the kind of reasoning conservatives think is somehow praiseworthy? Especially troubling is the incredible insistence that Loving was "merely about race." That is not only false but irrelevant, since Zablocki, which reaffirmed Loving, makes it unambiguously clear: Marriage is a fundamental right for its own sake, and not just for the sake of making babies. Like I said: embarrassing.

--Going back to the "marriage is for procreation" cop-out, of course that argument is false, given that society neither requires married heterosexual couples to have children nor denies marriage to heterosexual couples who cannot conceive (do we really need to reinvent this wheel every single time there's a gay marriage lawsuit anywhere?). But even if it had any logical or jurisprudential weight, it would nonetheless be incomplete. Just because heterosexual marriage may be the "preferred" arrangement for families with children does not mean that marriage must be limited to heterosexual couples with children. First class may be the preferred way to fly, but that doesn't mean that coach is an "invalid" way to fly. This is merely the (wearisome) paradox of "How exactly does a same-sex couple's marriage detract from a straight couple's 'traditional' marriage?" And the majority — as usual with opponents of same-sex marriage — has no answer. Like I said: embarrassing.

--And of course no defense of banning gay marriage would be complete without the cruel snicker of "there is no discrimination, since gays are equally permitted to marry members of the opposite gender." The majority opinion includes that too. Apparently encouraging sham marriages is now a legitimate or even a compelling state interest for constitutional law purposes. Like I said: embarrassing.

In conclusion, much has been made elsewhere of the following passage from the majority opinion:

However, we find it even more troubling that the court, upon determining the statute to be unconstitutional, proceeded to rewrite it and purportedly create a new constitutional right, an act that exceeded the court's constitutional mandate and usurped that of the Legislature.

This is, of course, utter nonsense. Since when is it "troubling" that a trial court applied Supreme Court precedent to correct, in as minimal a manner as possible, an historical oversight that reflects no express legislative intent and results in due process and equal protection violations against an insular and historically persecuted minority? This is, in large part, the raison d'être of courts. In this country, there are some things the majority simply may not do. There are some things that courts simply must do.

Deal with it.

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At first, the concurring opinion by neophyte appellate Judge James Catterson appears to be a better defense of the majority's ruling than the majority opinion itself. He relies on the only possible defense of gay marriage exclusion: the notion, via Washington v. Glucksberg, 521 U.S. 702 (1997) that fundamental rights analysis requires that an interest be "deeply rooted in the Nation's history, legal traditions, and practices." Gay marriage certainly isn't that. Point conceded.

Of course, "marriage" is a fundamental right; debating gender restrictions is, or should be, an afterthought. But I can respect an argument that, under precedent, there is no fundamental right to same-sex marriage. I disagree with it, but I can respect it. There is, by contrast, absolutely nothing in the majority opinion that deserves respect.

Having said that, the rest of Judge Catterson's concurrence is crap. Here are his various not-quite-arguments:

--There is no precedent, one way or the other, in New York regarding same-sex marriage. So why, Judge Catterson asks, should we start now? Damned if the Legislature does; damned if the Legislature doesn't. Lovely.

--The Supreme Court has, according to Judge Catterson, apparently already upheld same-sex marriage bans in the (non-)case Baker v. Nelson, 409 U.S. 810 (1972). According to Judge Catterson, by not deciding that 33-year old case because "there was no substantial federal question," it is now, we are told, "settled law" that there is no constitutional right to same-sex marriage. How convenient. Never mind that the original Minnesota Supreme Court decision expressly relied on the "Loving was only about race" argument, which was (as I've already mentioned) expressly rejected, after Baker v. Nelson, by Zablocki. This suggests (or perhaps even demands) that the (non-)decision in Baker v. Nelson no longer be considered good law. Furthermore, Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), were also decided after Baker v. Nelson was (not) decided, further vitiating any claim that Baker v. Nelson is still precedential. Finally, one must remember that this current case turns on the New York State Constitution as much as, if not more than, on the U.S. Constitution. Go figure.

--Not only does the concurrence repeat the "a gay person is free to enter into a sham marriage with a person of the opposite sex" sophistry, but it takes the absurdity to the next level by asserting that — get this — since Loving struck down laws requiring same-race marriage, it cannot possibly require allowing same-sex marriage. You read that correctly: Loving, the concurrence would have you believe, didn't strike down irrationally restrictive marriage laws, but struck down "same-same" marriage laws (i.e., same-race marriage requirements). So how can Loving be read to even endorse, let alone require, another kind of "same-same marriage" in the form of same-sex marriage? Just when I thought the opponents of gay marriage couldn't get any more pathetic, I see drivel like this.

--But wait, there's more. Judge Catterson also reminds us that "civil rights" are not the same as "gay rights" and that it is inappropriate and perhaps even insulting for gays to invoke an anti-racism case like Loving for their own purposes. Have we no shame?

--Judge Catterson ends on a truly low note:

Rather, the issue is "whether the recognition of same-sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation. If it would not, then limiting the institution of marriage to opposite-sex couples is rational and acceptable under constitution."

So no matter how desirable it might be to allow same-sex marriage, no matter what societal good it may serve, no matter how consistent with constitutional law it might be, if it's not exactly identical to "traditional marriage," then it can be banned? There are some arguments, like this one, that are just so dumb that one cannot craft a response. Stated differently, if there weren't so much at stake, I would burst into laughter.

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Judge David B. Saxe has a dissent that is basically a fisking of the majority opinion, so I won't repeat much of it here, except for a quote that reminds us why advocates of same-sex marriage will always have the moral high ground:

It has often been noted that one of the functions of the Federal and State Constitutions is to safeguard minorities against the tyranny of the majority. It is precisely because we cannot expect the Legislature, representing majoritarian interests, to act to protect the rights of the homosexual minority, that our courts must take the necessary steps to acknowledge and act in protection of those rights. [Internal citations omitted.]

It may not be politically expedient. It may be downright foolish. But sometimes the minority has a right to say: "The majority be damned! That is not what the Constitution, and this country, are about!"

At least, there was a time when that wasn't what the Constitution, and this country, were about.

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Again, the case is Hernandez v. Robles, Slip Op 09436 (App. Div., 1st Dept., December 8, 2005), overturning Hernandez v. Robles, NO. 103434/2004 (New York County, February 4, 2005).