A Stitch in Haste

Just a note that New York State's highest court* is expected to rule as soon as tomorrow on the four same-sex marriage cases that were consolidated into one appellate litigation. The lead case is Hernandez v. Robles; I blogged about it here. The New York Times has a fluff piece that I don't think is very informative.

I watched the oral arguments via webcast and am guessing that the ruling will be 4-2 in favor a finding a right to same-sex marriage (one judge recused himself because his daughter has represented gays seeking the right to marry).

Here's the posture of the litigation:

--New York has no bigot amendment.

--Indeed, New York has no DOMA.

--All New York does have is a comprehensive "Domestic Relations Law," dating back to 1909, that has some passing references to "husband," "wife," bride" and "groom." These terms have generally been given their traditional gender-specific meaning, which has been the sole basis for denying marriage licenses to same-sex couples in the state thus far.

--The case is being decided exclusively based on that DRL and the New York State Constitution. There will be no appeals to federal courts one way or the other by either side.

--The equal protection clause of the New York State Constitution has historically been deemed co-extensive with the federal Equal Protection Clause. This means, on the one hand, that any discrimination claims against gays must merely satisfy low-level "rational basis" review (since gays are not considered a "suspect class" under equal protection precedent). The gay couples insist, however, that the discriminatory policy does not satisfy even low-level scrutiny.

--On the other hand, since marriage has been deemed a fundamental right under Loving v. Virginia, 388 U.S. 1 (1966), and Zablocki v. Redhail, 434 U.S. 374 (1978), any deprivation of that right (if such deprivation is found) must satisfy the much higher "strict scrutiny" standard of review, which simply would not be satisfied here. So the standard of review, and perhaps the outcome, will depend on how the Court frames the issue.

Bottom line, the Court can do one of four things:

1. Find a constitutional right to same-sex marriage and order the Legislature to correct the DRL (i.e., the Massachusetts approach).

2. Find a constitutional right of gay couples to the benefits of marriage and order the Legislature to craft such benefits, either through marriage or a civil union equivalent (i.e., the Vermont approach).

3. Find a constitutional right to same-sex marriage and simply craft a new canon of construction, holding that previously gender-specific terms in the DRL must now be given a gender-neutral interpretation (i.e., the Ling-Cohan approach in the original Hernandez v. Robles ruling).

4. Find no constitutional right to same-sex marriage.

My prediction is that #3 will prevail, as it is the least "activist" approach and has a basis in the earlier trial court ruling.

Stay tuned.

(*Because we are a state of jackasses, our highest court is the "Court of Appeals," while the "Supreme Court" is actually our lowest court of general jurisdiction. Go figure.)