A Stitch in Haste

(Sorry, but when it's Ithaca, New York, "city" simply must be put in quotation marks. I should know, I endured five impoverished graduate student years there. New York is a city, San Francisco is a city, Las Vegas is a city. Ithaca is not a city -- it's an almost-village attached like a crusty barnacle to Cornell University -- which itself is far closer to a city than Ithaca ever will be.)

Yesterday I reminded my loyal readers that political subdivisions such as counties, cities and school districts exist at the whim and for the convenience of the state.

But if it's a "city" full of socialists (the mayor when I was there was in fact a bona fide, card-carrying member of the DSA), then who needs pesky nuisances like the Constitution when there is frivolous litigation to be pursued:

A New York State Supreme Court judge will hear arguments Friday from attorneys representing 25 same-sex couples suing the state of New York and the ["]city["] of Ithaca for the right to marry. But Ithaca has filed a cross-claim and is actually supporting the so-called "Ithaca 50."
...
Ithaca City Attorney Martin Luster told The New Standard that the city had planned to ask the state Department of Health if such licenses could be issued. But, Luster said, the state beat them to the punch by issuing directives advising localities not to give licenses to same-sex couples.
...
"Ithaca sued the Department of Health on a number of items," explained Luster. According to Luster, the city suit’s first objective is "a declaration that the existing statute of domestic relations law permits recognition of same-sex marriages." Secondly, Ithaca argues "that the directive issued by Department of Health was invalid for a number of mainly technical reasons." And finally, Ithaca sets forth that denying marriage licenses would violate guarantees of equal protection and due process of law provided by both federal and state constitutions.

The New York State Constitution does not ban same-sex marriage outright, though it does use gender-specific language such as "husband and wife" and "bride and groom."

Now the first-year law school final exam answer goes something like this: The "city" of Ithaca has no standing to sue for gay marriage and should be dismissed as a litigant and possibly sanctioned. Q.E.D.

The libertarian lawyer-blogger answer goes something like this: While there is certainly nothing wrong with elected (or unelected) municipal officials speaking their minds and taking positions on political issues, it is a flagrant abuse of one's office to waste taxpayer resources on frivilous litigation that in no way whatsoever impacts your locale. Moreover, such arrogant acts of vanity are, or at least should be, impeachable offenses.

Moreover, such acts are not "civil disobedience." They are betrayals of one's office. Only private citizens can engage in civil disobedience, in the same way that only government can truly "censor." The notion of "governmental civil disobedience" is a monstrous contradiction in terms. The concept of a public official intentionally exceeding his authority or ignoring the laws of his state to "make a statement" is not "civil disobedience," but rather willful and gross misconduct.

When the southern states seceded, it wasn't "civil disobedience," it was violent rebellion. When Ross Barnett blocked the doors of Ole Miss, it wasn't "civil disobedience," it was contempt of court -- the Supreme Court, in fact. When San Francisco Mayor Gavin Newsom intentionally issued fraudulent marriage licenses, it wasn't "civil disobedience," it was willful misconduct and vain unproductive grandstanding.

When the officials of the "city" of Ithaca abuse their positions to have the "city" sue its own state just to grab some headlines, it's not "civil disobedience."

It's just pathetic.

Related Post:
"I Left the Law...in San Francisco..."
Equal Rejection Clause

Here are my stream-of-consciousness observations about the decision (PDF — 62 pages), by the (elected) trial court judge in New York City, mandating same-sex marriage:

--The decision is brilliantly written. This judge is no hack. It is sober, methodical and thorough. Disagree with the arguments if you want, but the arguments are there. (Of course, just as appellate judges often borrow generously from the briefs submitted to them, so might Justice Ling-Cohan have borrowed from the affidavits and other motion documents. But I'll give her the benefit of the doubt.)

--Don't be intimidated by the length of the decision (62 pages) — it's an easy read. The bulk is entirely suitable for non-lawyers, especially the first and last thirds. The statement of facts describes, in evocative narrative, the parties and the challenges they face. The judge is very respectful of the opposition to gay marriage and acknowledges the intensity of their views on the matter.

--The judicial posture of this case is important — the judge did not "overturn" any "same-sex marriage ban" — there is no such ban in New York State. The Attorney General, Eliot Spitzer, has made this clear. Opponents of same-sex marriage in New York instead point to gender-based terms in New York's Domestic Relations Law ("DRL") such as "husband," "wife," "groom" and "bride." As the judge points out, however, the crafting, decades ago, of the DRL with such language reflects no explicit legislative intent that same-sex marriages should be banned — they were simply never contemplated.

--Quite the contrary, as Justice Ling-Cohan documents, every recent action on the subject by the New York State Legislature has been pro-gay (e.g., public employee health benefits, adoption rights, and perhaps most notably, September 11 survivor benefits). A judge trying to divine "legislative intent" — which is allegedly what conservatives want judges to do — faces no indicia of opposition to same-sex equality and numerous indicia in favor. It is hardly "activist" to conclude that the legislative intent today is that gays not be discriminated against in New York State.

--The judge is (rightly) focusing on the New York State Constitution, not the United States Constitution. It is well-settled law, in New York and most other states, that a state constitutional provision (e.g., "equal protection under the law") can grant greater rights and protections than its federal constitutional counterpart. As is typically done in gay rights cases, the analysis consists of both a due process argument (main argument, Section 6 of the New York State Bill of Rights) and an equal protection argument (secondary argument, Section 11).

--For the lawyers: The bulk of the decision rests on a substantive due process argument best summarized as "New York recognizes a fundamental right to choose whom to marry." Unsurprisingly the judge relies heavily (perhaps too heavily?) on Loving v. Virginia 388 U.S. 1 (1966), which struck down anti-miscegenation laws. Anticipating the "Loving is only about race" counterargument, she reminds us of Zablocki v. Redhail, 434 U.S. 374 (1978), which significantly extended Loving and clarified that there is a fundamental right to marry.

By contrast, Justice Ling-Cohan keeps the invocation of Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (2003) (the Massachusetts gay marriage case) to a minimum, except for some "hat tips" in her conclusion (not in her argument). Similarly, she minimizes the use of Lawrence v. Texas, 539 U.S. 558 (2003) (as she must, since Lawrence explicitly side-stepped the gay marriage issue). Confusing, however, is her limited use of Romer v. Evans, 517 US 620 (1996), holding that mere animus toward an insular minority, specifically gays, does not satisfy rational basis review. (More on this below).

--Her refutation of the arguments made by New York City could have been called a "slaughter" except that it was so dignified and respectful. She systematically goes through the evolution of marriage and documents how courts, as opposed to legislatures or plebiscites, have uncontroversially led the way in the past. Her examples include the archaic and noxious notion of "coverture" (i.e., the presumption that a woman, upon marriage "ceases to exist" in the eyes of the law) and the now-abolished prohibition of prosecution for marital rape. She reminds us that authorizing same-sex marriage is not the same as requiring same-sex marriage, and that churches and clergy would of course not be legally required to perform ceremonies that they find contrary to their faiths. She tears down the strawman quasi-arguments regarding polygamy and incest.

--Justice Ling-Cohan's equal protection reasoning in the decision, meanwhile, is as short as it is smart. Rather than defying precedent by declaring sexual orientation a suspect class entitled to heightened scruntiny (something the Supreme Court has shamefully refused to do at every single turn), she undercuts the "special rights" argument wholesale by asserting, reasonably, that prohibiting same-sex marriage fails even low-level scrutiny. This is where I would have liked to see more leveraging by Justice Ling-Cohan of Romer v. Evans — the core holding of that case is precisely that mere animus toward gays does not satisfy rational basis review. The extension to denying same-sex marriage is almost inescapable.

--Some opponents of the decision are focusing on this passage in the core ruling at the very end of the decision.

[T]he words "husband", "wife", "groom" and "bride", as they appear in the relevant sections of the Domestic Relations Law are and shall be construed to mean "spouse", and all personal pronouns, as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to either men or women...

See — she's rewriting the dictionary! If that isn't being an "activist judge," then what is?

Two points: First, this concept of redefining or mandating substitutions for words is hardly unusual (cf., "separate but equal is inherently unequal"). It's actually a fairly mundane tool of statutory interpretation. There is precedent in New York, as Justice Ling-Cohan documents, where judges mandated gender-neutral interpretation of gender-specific words in the DRL and other statutes to reflect the changing status of women (cf., "coverture," supra).

Second: As Justice Ling-Cohan explains, the revised interpretation was designed to minimize the impact her decision — to avoid being "activist." It is a longstanding canon of construction that a constitutional interpretation of a word or statute is preferable to an unconstitutional one. In other words, it is better to find a way to uphold a statute than to strike it down. The alternative would have been to strike down all the relevant provisions of the DRL as unconstitutional. It was an act of judicial restraint, not "activism," to give an expansive meaning to the gender-specific terms.

--Flaws in the decision? As I mentioned, supra, I'm not sure pegging so much of the reasoning to Loving v. Viriginia, the anti-miscegenation case, is necessarily the best approach. All an intellectually dishonest opponent need say is "Loving was only about race" and he can harumph away. Justice Ling-Cohan debunks that view and emphasizes how Loving has been extended in other cases (e.g., Zablocki). Still, using race as a stepping stone to sexual orientation is a questionable tactic, in my opinion.

I prefer, when possible, Romer-style arguments that an anti-gay law can simply serve no purpose other than naked bigotry and therefore fails rational basis review, thereby sidestepping entirely any need to invoke fundamental rights analysis or equal protection "heightened scrutiny" challenges. We'll have to wait to see whether Lambda changes tack at the appellate stage.

--Looking forward, we should keep in mind the way appellate process works. On the one hand, all questions of law are reviewed "de novo," which means that the appeals courts (both the intermediate-level Appellate Division and the higher Court of Appeals) are free to be "activist judges" and run Justice Ling-Cohan's decision through the shredder. On the other hand, we won. The burden is now on the city to convince the appellate courts to overturn a seemingly valid decision.

It will now be a battle of the briefs, which works to the advantage of gay marriage advocates in two ways. First, the city, as the appellant, has to file the first brief; the gay couples get to respond (i.e., to fisk) whatever arguments the city makes. Which would you rather be: the fisker or the fiskee?

Second is the question of resources. Judging from Mayor Bloomberg's remarks (see below), the city is pursuing this appeal somewhat reluctantly; Lamba will likely throw everything they have at it, as will, most likely, every other gay advocacy group, through amicus briefs (compare and contrast: the flood of pro-liberty briefs being submitted in the Kelo eminent domain case). Of course, if the appellate judges don't want to be pursuaded, then they won't be — that's the real "judicial activism."

Do New York appellate judges tend to be liberal or conservative? I have no idea — I leave that to the state-focused political commentators and bloggers.

Next, a brief word to the "too much too soon" crowd (which is all they deserve) — There is not now, nor will there ever be, a viable New York State DOMA proposal in the works. Contrary to the rants of the uninformed, New York does not allow voter referendums. The Federal Marriage Amendment — the State of the Union address notwithstanding — is dead, dead, dead. Gay marriage does not exist in New York today. If in the end we lose, then gay marriage will not exist in New York tomorrow. From nothing to something, even if back to nothing later. How can you possibly put negative spin on that?

Finally, let me comment far too briefly on Mayor Bloomberg. Long-time readers of A Stitch in Haste know that I despise this man with every fiber of my being. I will vote against him regardless of who the Democratic candidate is. If I could donate money to his opponent I would (my employment contract forbids it). I will pop a Dom on election night this November when he is ousted. But I can't get too mad at him for deciding to order the appeal to proceed. You simply can't have one policy for New York City and another for the rest of the state.

I will blogospherically smack him, however, for analogizing the situation to that in San Francisco — where renegade mayor Gavin Newsom blatantly and intentionally broke the law. Ditto for New Paltz Mayor Jason West. Here the law is on our side. The analogy is, like Bloomberg himself, ignorant and outrageous.

My complaint about Bloomberg has been that he was elected to be a placeholder in the immediate aftermath of September 11. He has broken that pledge, over and over and over, in his quest to turn this city into a nanny-state. Now, for once, he's actually trying to be a placeholder, to be the "don't-rock-the-boat," "let's-just-heal-and-rebuild" mayor that he was elected to be. I won't be a hypocrite by failing to acknowledge that.

POST SCRIPT: Here are other thoughts on the decision: Ryan Sager, Christian Grantham, Finocchio, Balkinization.

Regarding Mayor Bloomberg's decision to appeal: Finocchio, Last Debate, Modern Fabulousity, Towleroad, Law Dork.

Related Posts:
Can Extant Gay Marriages Be Nullified?
Is Marriage a Positive or a Negative Right?
Gay Marriage as the "New Abolition"
Gay Marriage: Any Lessons from the Boy Scouts?

Commentary regarding the New York gay marriage ruling and Mayor Bloomberg's decision to appeal it:

New York Times:

One lower court judge -- or one small-town mayor, as in the case of New Paltz, N.Y., last year -- cannot single-handedly rewrite a state's marriage law. And gay couples should not be lured someplace to have weddings that could turn out to have no legal standing.

As I posted in the comments of Beaverhausen Blog, which first spotted the bizarre Times assertion:

What an astoundingly terrifying statement -- is the Times saying that there is no distinction between a judge interpreting the law and a mayor breaking it? That there is no such thing as separation of powers, that "government is government" and that "a judge is a mayor is a sheriff is a dog catcher"?

Justice Ling-Cohan was doing her job; New Paltz Mayor West and San Francisco Mayor Newsom were engaging in criminal conduct. Don't try to equate the two.

OpinionJournal:

None of these [fundamental rights] cases rest on solid legal ground. As Justice Douglas acknowledged in Griswold [v. Connecticut, 381 U.S. 479 (1965)], the right to privacy is to be found not in the Constitution but in its "penumbras" and "emanations." At the same time, there is a strong political consensus against the government intruding into people's bedrooms. If Griswold and Lawrence [v. Texas, 539 US 558 (2003)] disappeared from the books tomorrow, it's unlikely any state would rush to re-enact laws against contraceptives or consensual sodomy.

Abortion and same-sex marriage, by contrast, do spark strong opposition, but not on privacy grounds. Abortion opponents argue that life before birth is worthy of legal protection, while the case against same-sex marriage is that it confers public approval on gay relationships -- approval the New York and Massachusetts courts have given without public consent.

When judges find rights in hidden constitutional meanings, they run a twofold risk. If they limit those rights, striking balances and compromises between such competing values as privacy vs. life or privacy vs. morality, they act as politicians, only without democratic accountability. The alternative, to let those rights expand without limit, seems more principled and thus is more appealing. But it ignores democracy's most important principle of all: the right of the people to govern themselves.

This is, of course, utter nonsense. Forty years of Supreme Court jurisprudence spanning three Chief Justices and 21 Associate Justices would seem to qualify as "solid legal ground." I thought conservatives were supposed to be respectful of precedent, even if they disagree with it.

As is so often the case with so-called "strict constructionist" conservatives -- there is a rather flagrant bit of flat-out cheating in their version of constitutional interpretation. You can't have it both ways, whining about how there is no "right to privacy" in the Constitution, when there most certainly is, for instance the Ninth Amendment (a/k/a Bork's "inkblot") or the Fourteenth Amendment's Privileges & Immunities Clause, which was interpreted into oblivion the very first time the Supreme Court adjudicated it. Either be a "strict constructionist" or don't; the Constitution is not an a la carte menu.

Meanwhile, the "abortion versus gay marriage" analogy has been debunked so many times as to verge on Chinese water torture. To compare granting rights to the unborn with denying rights to the living is disingenuous and disgraceful. Stated differently, abortion is about death and the lack of love; gay marriage is about life and the embrace of love. Equate those at your own risk.

Finally, and equally eye-rolling and moan-generating, must we, yet again, remind so-called "conservatives" that the United States is not a democracy, that our founding principles are government restraint of unbridled mass democracy (i.e., mob rule) and protection of insular minorities? Do conservatives really want "democracy at all costs," especially in this PATRIOT Act, War on Drugs, tax-and-spend era?

Steve Miller's CultureWatch:

[W]hat would be gained by allowing mass weddings of dubious legality on the City Hall steps, repeating the images that came out of San Francisco last year that gays cheered but many others viewed as an anarchistic assault on marriage, thus fueling the national backlash. And to what end, since California's high court than nullified those weddings?

Um, no. Same mistake the Times made; the San Francisco ceremonies were blatantly illegal from the outset and everyone knew it; Newsom criminally issued bogus licenses and everyone knew it. Same with Mayor West in New Paltz.

And I thought it was Massacusetts, not San Francisco, that "fueled" the so-called "backlash" (and remember: gay marriage did not exist in a single state where today it, um, doesn't exist -- so much for the wailing and gnashing of teeth of the "too much too soon" crowd).

If Bloomberg has decided not to appeal and the stay had expired (by the way -- how "activist" was it for Justice Ling-Cohan to voluntarily issue that 30-day stay of her own accord?), then the licenses would have been presumptively valid, perhaps irrebuttably so (see my previous post).

As I blogged previously, I can't fault Bloomberg too much for deciding to appeal. But let's keep our facts straight clear -- a few vanity protests by headline-grabbing and law-breaking mayors is not the same as the judicial process functioning precisely the way it's supposed to. And shame on any gay activist who tries to confuse and scare gays into thinking otherwise.

Related Posts:
Thoughts on the New York Gay Marriage Decision
Can Extant Gay Marriages Be Nullified?
Is Marriage a Positive or a Negative Right?
Gay Marriage as the "New Abolition"
Gay Marriage: Any Lessons from the Boy Scouts?

The New York Court of Appeals (the highest court in New York) has announced that it will not grant expedited review of the cases concerning same-sex marriage, including the NYC victory in Hernandez v. Robles. The cases will have to first go through the intermediate appellate courts before reaching the highest court.

My hasty-stitchy take is that this is, if anything, a postive for two reasons:

1. The couples in Robles are represented by Lambda Legal, the heroes who brought you Lawrence v. Texas. They have very deep pockets and very wide staff rolls. To the extent that this becomes a battle of attrition, that can only work in favor of the gay couples.


2. A possible reason for declining to grant expedited review is to allow for more “stuff” (i.e., briefs and rulings) for the Court of Appeals to digest. Since, generally, opponents of same-sex marriage rely on simplistic arguments (e.g., “it’s about tradition”) rather than sophisticated ones (e.g., “it’s about due process”), I would think that, when the issue finally does reach the Court of Appeals, “more is better.”

Or this could all mean absolutely nothing.

In related news, the San Francisco judge who declared California’s DOMA unconstitutional stayed his own ruling to allow the appeals process to proceed unhastened. How “activist” of him.

Also, a Connecticut judge makes an important but unsurprising decision: Since Massachusetts same-sex marriages are not recognized in Connecticut, it follows logically that Connecticut cannot annul them, and the parties must go back to Massachusetts to adjudicate. I say the ruling is important because it is an early example of “DOMA versus Full Faith and Credit.” In this case, the two yield the same result and there is nothing exciting. But the two won’t always agree, and somewhere down the road there will be a fact pattern where DOMA and FFC collide head-on. And anyone who claims the outcome will be a no-brainer is either a liar or a fool.

And the band plays on...

My detailed review of the ruling by an intermediate appellate court overturning a trial court's mandating of same-sex marriage in New York State will have to wait until the weekend.

In the meantime, Queer Law Watch has some preliminary thoughts.

Remember that there are several cases, both victories and defeats, working their way through the New York courts, with a final, definitive determination of the issue by the New York State Court of Appeals (the state's highest court) much further down the road.

Stay tuned...

The case is Hernandez v. Robles, 2005 NY Slip Op 09436 (Appellate Division, First Department, December 8, 2005).

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.

---

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.

---

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.

---

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).

New York's ultra-liberal mayor, Michael Bloomberg — who like all mayors has no business whatsoever mucking around in the gay marriage wars — is of course mucking around in the gay marriage wars:

Should the state Court of Appeals rule that gay marriages are legal, the Big Apple will start performing them, Mayor Bloomberg promised yesterday.

And should the state's highest court — which is to begin hearing legal arguments this week — rule that they're not, the city will lobby Albany to change the law, the mayor vowed.
...
In February 2005, State Supreme Court Justice Doris Ling-Cohan ruled that banning those marriages violated the state Constitution. The city appealed, and the ruling was struck down.

Keep in mind that Mayor Bloomberg personally ordered the City to appeal the decision finding a state constitutional right to same-sex marriage. That was a wholly frivolous act on his part, which could only be exceeded by the far more frivolous act of spending taxpayer money to lobby Albany over a non-local issue that he happens to dislike.

This is somehow responsible governing of the City?

Apparently Bloomberg's paternalistic, philosopher-king desire to save New Yorkers from themselves isn't enough for him. Now he needs to save the courts from themselves and the Legislature from itself. And he wants to do so with our own tax dollars. Because he's just that far above us all.

So to review: Bloomberg is for gay marriage, except when he's against it. And he's against it, except when he's for it. And he's in favor of involving himself — especially when he has no grounds to involve himself — always.

Remind me again how he's not just another decrepit hack politician?

Other thoughts at Pam's House Blend.

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.)

Here is the relevant part of the decision:

We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.
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The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
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There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.

Bottom line, straights can't be trusted, and gays don't need to be trusted. We need to bribe straights into getting married precisely because they might not want to, and we need not afford gays the opportunity to marry, precisely because they do want to.

This is what passes as informed jurisprudence in New York State.

The fact that limiting marriage to heterosexual couples, because "it's all about the children," is both underinclusive (we don't limit straight marriage to fertile couples, we don't compel straight couples to bear children, nor do we summarily dissolve straight marriages that do not result in children) and overinclusive (gays have children too, just not by accident), means nothing. Absolutely nothing.

This is what passes as informed jurisprudence in New York State.

Now that the bromide of "it's all about the children" has been refuted at every turn, defenders of traditional bigotry now have a new twist: "it's all about accidental children."

This is what passes as informed jurisprudence in New York State.

Note: The vote was 4-2. Chief Judge Kaye has a lengthy dissent that I look forward to reading.

I may or may not have more later.

The lead case is Hernandez v. Robles, No. 86 (NYS Court of Appeals, July 6, 2006)

A little fisking:

In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home.

Just like it was "common-sense" in 1909 that women were too stupid to vote or that separate but equal was perfectly okay? Since when are hunches, or random guesses, a rational basis for lawmaking, or for statutory and constitutional interpretation? And of course, if you believe "that children will do best with a mother and father in the home," then there is also no rational basis not to ban gay adoption (or adoption by single people, for that matter) or artificial insemination of lesbians (or of single heterosexual women, for that matter). But, again, "arbitrary" is now synonymous with "rational." Go figure.

But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries -- at first by a few people, and later by many more -- as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began.

So Loving was "just about race"?

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).

Oh, so Loving wasn't "just about race." Thanks for clearing that up.

On the overinclusive/underinclusive argument:

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.

So, anti-gay discrimination is "rational," but limiting marriage (which, remember is "all about the children") to heterosexuals who actually can and want to have children is "arbitrary and unreliable." Discrimination is fine if fixing it would be "too hard"? Better to drown the baby in the bath water than throw it out with the bath water?

One consolation prize:

[W]e reject defendants' argument that the Supreme Court's ruling without opinion in Baker v Nelson (409 US 810 [1972]) bars us from considering plaintiffs' equal protection claims...

Baker v. Nelson is on my list of the Ten Worst Supreme Court cases. I'm glad to see a high court smack down its invocation by the bigots, even in this sad context.

Maybe some thoughts on Chief Judge Kaye's dissent later.

(Cross-posted previously at Overlawyered.)

No sooner had I put the finishing touches on my subway search post, in which I analogized the Second Circuit's abdication of responsibility in that case to the recent gay marriage defeats in New York and Washington States, than I came across this excellent CQWeekly editorial:

[T]he New York and Washington courts both said that legislators could have believed that children fare better in families with both a mother and a father as role models. Neither court had research to prove the point: There is none. Instead, as the New York court said in the main opinion, the supposed advantage was a "common sense premise" supported by "intuition and experience."

Whatever quibbles one might raise about each of the points, both courts were guilty of an overriding lapse of logic. The issue in both cases was not whether marriage for opposite-sex couples is a good thing, but whether legislators had some reason — other than ignorance or prejudice — to deny those benefits to same-sex couples.

Precisely.

In law school you're taught that jurors resolve questions of fact and judges resolve questions of law. You're taught that appellate courts review findings of law "de novo" but must leave findings of fact "undisturbed."

But what about an absurdity disguised as a fact? When, where, how and by whom does that get reviewed?

In New York State, if I remember correctly, a criminal conviction can be overturned on appeal if either there was reversible error or the verdict went against "the great weight of the evidence." Where is that standard in questions of constitutional rights? Or when there is instead a "great void of evidence," as in the gay marriage cases?

It cannot possibly be the proper function of a judge to perpetuate a farce.

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And if you need a more "Overlawyered" analogy than gay marriage: Who is going to be responsible for rescuing Merck from all those unconscionable Vioxx verdicts? That's right -- judges. Go figure.

The latest skirmish in the quest for marriage equality is a victory:

The Supreme Court of New York for Westchester County held that County Executive Spano can recognize out-of-state marriages of same-sex couples living in Westchester County.

"Today's decision follows a long history of settled law in New York, namely that our state respects marriages that are validly entered into in other jurisdictions," said Alphonso David, Staff Attorney at Lambda Legal and lead attorney on this case. "Our clients can now have some peace of mind that their marriage is secure in Westchester County."

Some hasty stitches:

--For the uninitiated, in New York the "Supreme Court" is actually the lowest court — the trial court. Because we're morons.

--The ruling holds that Westchester may, not must, recognize out-of-state same-sex marriages. The County Executive was the good guy here, and the bigots (from the Alliance Defense Fund) were the plaintiffs suing the government. No word on whether they will appeal.

--It's not clear what tangible benefits such a ruling brings (i.e., how many marriage-related rights, privileges, benefits and protections accrue at the county level). Hospital-related rights, perhaps, but I'd hard pressed to think of many others.

--Suppose a civil union couple from New Jersey moves to Westchester. Is that also to be recognized as a marriage? Remember: the New Jersey Supreme Court expressly said that a same-sex civil union must be afforded all the same benefits as marriage. Does that include the benefit of having it recognized as a marriage in Westchester? I specifically raised this issue back when the New Jersey case was handed down.

--This is not entirely surprising: New York has no DOMA, and like the press release says, the state has long had a policy of recognizing an out-of-state marriage that was valid in the home state, even if the spouses could not legally have married in New York. This decision in no way contravenes the defeat in Hernandez v. Robles, nor does it strike down any law.

--Which, of course, won't stop the bigots from yet again decrying another "activist judge."

The case is Godfrey v. Spano.

The two most heart-breaking, and infuriating, judicial defeats regarding same-sex marriage were unarguably the high court losses in New York (Hernandez v. Robles) and Washington State (Andersen v. King County).

Now, twice in as many days, we have (sorta kinda) positive partial developments from each.

In New York, Governor Eliot Spitzer is fulfilling a campaign promise to introduce a same-sex marriage bill in the Legislature. I am no fan of Spitzer, but I will tip my hat to him for following through on his pledge.

Having said that, the bill is of course already dead.

As a reminder, New York — the worst-governed state in America — is essentially a triumvirate. Policy and power do not flow up from individual state legislators to their leaders; it flows down, via pork, perks and privileges. There is no such thing as an independent vote in Albany. Members of the Democratic majority in the Assembly vote exactly the way Speaker Sheldon Silver instructs them to, while Republican state senators unquestioningly obey Majority Leader Joe Bruno. The legislative agenda itself, meanwhile, is directly (and exclusively) negotiated by Silver and Bruno, along with the governor. Rank-and-file legislators have no say in the matter. Nothing, absolutely nothing, comes to a vote in Albany unless all three super-politicians want it to.

And Bruno is on the record as being opposed to same-sex marriage. So even if there were enough hypothetical votes in the Republican-controlled State Senate to pass gay marriage, the vote itself will simply never occur — because Bruno doesn't want it to. So in that sense the bill has already been defeated.

The only way around this would be for Silver and Spitzer to "buy" a vote authorization from Bruno via backing down on some other contentious issue (i.e., throwing Bruno a bone of some kind). The problem is that no such issue comes to mind. Spitzer simply has no card to play in his dealings with Bruno.

Of course, it's always conceivable, in a "West Wing" style dramatic sort of way, that a vote could come. Conceivable, but unlikely.

In Washington State, meanwhile:

Washington Gov. Chris Gregoire signed into law Saturday a measure to create domestic partnerships, giving gay and lesbian couples some of the same rights that come with marriage.

The law creates a domestic partnership registry and provides enhanced rights for same-sex couples, including hospital visitation rights, the ability to authorize autopsies and organ donations and inheritance rights when there is no will.

Okay, well, that's nice — I guess. Certainly better than nothing. I do find it somewhat ironic, however, that gay couples will now get more recognition in Washington at the end of their relationships than at the beginning. But, no pun intended, it's a start.

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Just as an aside:

The Vatican's second-highest ranking doctrinal official on Monday forcefully branded homosexual marriage an evil[.]
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The attack by Archbishop Angelo Amato, secretary of the Congregation for the Doctrine of the Faith, was the latest in a string of speeches made by either Pope Benedict or other Vatican officials as Italy considers giving more rights to gays.

Unrepentant anti-gay bigotry by the Catholic Church is one among several reasons why New York State is dragging its political feet on gay marriage.

(Note: The "Congregation for the Doctrine of the Faith" is, incidentally, the successor entity to the Inquisition.)

I apologize for not having weighed in on the same-sex marriage litigation now before the California Supreme Court. I assure you that will change when the decision is handed down.

I have seen conflicting predictions about how the court may rule -- the only consensus is "close."

But one analysis did catch my eye:

As Justice Kennard and her colleagues probed further, we learned that the state entities were willing to submit three main arguments in favor of the state's marriage restriction: tradition, legislative primacy, and the will of the people. The state entities were not willing to argue that the marriage restriction is reasonable to further responsible procreation, to provide an optimum environment for rearing children, or to protect or promote marriage between different-sex couples. And now we arrive at the exact reason that the private entities clung so fiercely to a place in the litigation -- to put before the court arguments that they saw as justifying the restriction on marriage yet not advanced by the state's attorneys.

It's hardly surprising that the bigots were desperate to get the "procreation" argument before the California judges. After all, it was that same argument that formed the basis for gay marriage defeats in New York and Washington States. Stick with what works, right?

That the Supreme Court of California seems not only unpersuaded but downright uninterested in the procreation argument is undeniably a good sign. But that does not mean that we should forget the counterargument to invoking "procreation" as a argument against same-sex marriage.

To survive constitutional muster, a law must be adequately crafted to achieve the ends intended (and those ends must be legitimate functions of government, but that's another blogpost). In the case of unequal treatment of groups (e.g., "gays versus straights"), this means that a law must be neither overinclusive nor underinclusive; such a law is likely to be upheld. A law that is either overinclusive or underinclusive, however, will be problematic. A law that is both overinclusive and underinclusive is unjust and intolerable.

The procreation rationale for gay marriage bans is, of course, both overinclusive and underinclusive -- wildly so. "Marriage is for procreation" is overinclusive because it bans gay marriages that do conceive children -- though surrogacy, artificial insemination, etc. (and even, one could argue, through adoption).

"Marriage is for procreation" is also underinclusive -- because it fails to ban straight marriages that are not procreative. We impose no child-rearing preconditions on heterosexuals who seek to marry: no antenuptial fertility tests, no age restrictions, no postnuptial annulment of childless marriages, etc.

In short, "marriage is for procreation" was a disingenuous, obnoxious -- and patently unconstitutional -- basis to uphold gay marriage bans. Yet both New York's and Washington's high courts used it -- with a wink, a nod and a bang of the gavel -- to relegate gays (and, where applicable, their "overincluded" children) to second-class citizenship.

Regardless of how the Supreme Court of California rules, if the "marriage is for procreation" myth is debunked, then that will constitute progress.

Damn activist governors!

"It's a perfect example of a governor overstepping his authority and sidestepping the democratic process," said Brian Raum, senior legal counsel for the Alliance Defense Fund, a national organization opposed to same-sex marriage. "It's an issue of public policy that should be decided by the voters.

This is, of course, utter nonsense, as anyone who has been following the New York situation is aware. As I explained at another blawg:

Paterson was simply implementing the unambiguous recent ruling by NY courts (up to and including the state equivalent of a denial of certiorari) that long-standing NY statute and precedent require recognition of valid out-of-state marriages, even when those marriages could not be entered into in NY itself.

How is "doing what the courts say must be done" a case of "executive activism"?

First prize, meanwhile, goes to Gary Bauer, who is lamenting that an "activist" governor (who of course must be immediately impeached) has "overturned" (somehow) a court ruling!

But the governor's action effectively circumvents the state's highest court, bows to foreign law and violates the principle of separation of powers by superseding the legislature. Again, we are witnessing the advance of the homosexual agenda by the most undemocratic means possible. The governor of New York and the appeals court judges should be impeached.

The courts defy the will of the legislature. The legislature defies the will of the people. The people defy the will of the people back in 2000. The governor defies the will of the courts. The courts defy the ... wait, what?

The consequentialist vacuousness of anti-gay social conservatives has never been more prominently on display.

Whatever it takes to rationalize your bigotry, folks. Whatever it takes...

(Bauer quote via Good As You.)

To review: New York, the worst governed state in the Union, is essentially a triumvirate. The legislative agenda is under the plenary control of three politicians: the governor, the Assembly speaker and the Senate majority leader. No bill can come to a floor vote without both chambers' leaders authorizing it. Every other state legislator, no matter how senior, is a de facto permanent backbencher. Legislative votes are strictly an afterthought, implementing the back-room deals the three power-brokers make among themselves.

This disgraceful concentration of power has been the principal reason that same-sex marriage through legislative means has been impossible in New York. The Senate majority leader, Republican Joseph Bruno, has unilaterally blocked gay marriage from reaching the Senate floor -- where it could conceivably have passed, despite the chamber having a (slim 32-30) Republican majority.

So much for that roadblock.

Joseph L. Bruno, the Senate majority leader and New York State's highest-ranking Republican, said Monday evening that he would not seek re-election in November, after a 32-year career in the Senate.
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A key question for Senate Republicans will be whether several other older members will stay on. Mr. Bruno had persuaded them to stand for re-election in recent years and it was not clear if, given his departure, other senior senators in their late 70s and 80s would follow.

"His resignation, I think, will have an effect on their ability to hold on to their majority," said Assemblyman Michael Benjamin, a Democrat from the South Bronx. "He was the center. And when the center falls, everything falls apart."

Recall that governor David Paterson supports gay marriage (to say the least). Assembly speaker Sheldon Silver, meanwhile, has been amenable to allowing a vote in the past.

So it comes down to this: The Republicans, sans Bruno, will either hold the State Senate or they will not. If they don't, then it would take a betrayal of Clintonian proportions for gay marriage not to be legislatively enacted.

If the Republicans do somehow keep control of the Senate, then it will still have a new, weak leader who will likely have little choice but to barter away his "agenda veto" on the matter in exchange for some other issue of greater importance to his constituents.

New York Republican voters are not Alabama or Utah Republican voters. And their elected representatives know this all too well (Remember: Rudy Giuliani and George Pataki are Republicans -- as befuddling as that may be to Republicans in the rest of the country.) The logjam in Albany was all about Bruno. And he's leaving.

It is now just a matter of time -- and not a long time at that.

His name is Dean G. Skelos, he represents Rockville Center, a relatively upscale Long Island community (Bruno represented Brunswick, in the very conservative upstate capitol district).

Three data points:

1. This site, the reliability of which is unclear, lists Skelos as "not on record" regarding same-sex marriage.

2. He did, however, vote against a gay civil rights bill in 2002.

3. On the other hand, he was a leading sponsor of a recent bill to make noose displays a hate crime: "There is no place for racism and intimidation in America."

In any case, my earlier observation is unchanged: Even assuming that the Republicans maintain their wafer-thin majority in the State Senate, Skelos would be entering the triumvirate from a position of weakness, and with a far different set of priorities. If Governor Paterson and Speaker Silver press the issue, it is hard not to see Skelos capitulating on allowing a vote on gay marriage -- which would very likely pass.

Stay tuned...