December 9, 2005

"Marriage promotes sharing of resources between men, women and the children that they procreate."

"It is based on the presumption that the optimal situation for child-rearing is having both biological parents present in a committed, socially esteemed relationship."

So said the intermediate appellate court in New York yesterday, as it reversed a lower court's ruling that would have authorized gay marriage in New York City. The NYT characterized the 20-page opinion as "a ringing defense of heterosexual marriage." Judging from the article, however, I'd say it's more of a ringing defense of legislative power to define marriage, a ringing rejection of the notion that the limitation of marriage to heterosexual couples violates equal protection or due process.

UPDATE: I've read the text of the case, Hernandez v. Robles. Here's a key passage, showing the kind of deference to the legislature -- rather than enthusiasm for heterosexual marriage -- that pervades the opinion:
The role of the courts is "to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes." Deprivation of legislative authority, by judicial fiat, to make important, controversial policy decisions prolongs divisiveness and defers settlement of the issue; it is a miscarriage of the political process involved in considering such a policy change....
Interestingly, the court at this point cites an article written by Ruth Bader Ginsburg, "Speaking in a Judicial Voice," which it characterizes as "urging a measured approach in judicial decisionmaking and citing in contrast the Supreme Court's Roe v Wade decision, which prematurely ended the political process for legislative change on the abortion issue and resulted in protracted controversy."


ALH ipinions said...

I suspect one can find appellate decisions – sensibly overturned – that not only rejected lower court rulings that state law forbidding interracial was unconstitutional, but said that the state had a legitimate and rational interest in promoting same-race marriage.

But, if we accept the natural origin of homosexuality, then same-sex marriage is as much a fundamental right as interracial marriage (and should be equally protected by the courts).

And please spare us the slippery slope red-herrings....

Besides, with a 50% plus divorce rate amongst heterosexuals, it is patently fatuous to hold that heterosexual marriage promotes the welfare and social stability of children.

Ann Althouse said...

Read my update to the post, which is based on reading the text of the whole opinion. This is a case about deference to the legislature, not the court's own enthusiasm for heterosexual marriage. It is merely applying a rational basis test and taking a position of judicial restraint toward statutory law. I realize that many people would like to see the constitutional rights interpreted more broadly here, but the value of working out this hot issue in the political sphere should not be reflexively dismissed.

KipEsquire said...

Deference to what exactly? New York does not have a DOMA, just a Domestic Relations Law that was written at a time when same-sex marriage was simply not anticipated.

So now judges are supposed to defer to legislature's NOT crafting a policy about an issue that never came up in the first place, while a fundamental right is being denied in furtherance of no legitimate state interest?

That's not judicial restraint, that's judicial narcolepsy.

Richard Dolan said...

"That's funny because in many circles, gay people are reflexively dismissed."

Two points. First, it is undoubtedly true that there are places where gay people are "reflexively dismissed," but Manhattan (or for that matter, the rest of New York) is not one of them. Perhaps Mary is thinking of Kazakhstan or some lovely idyll where the Taliban reigns. The jurisdiction of the appellate court that issued this decision covers only Manhattan and the Bronx.

Second, as the Court's citation to Roe v. Wade made clear, the Court was concerned to get this decision right both legally and politically. The notion of deferring to the political branches on disputed social issues where the Constitution does not speak directly is hardly radical. After all, the point of a constitution in the American system is to provide an ordered structure for the people to rule themselves. It's called democracy.

The overarching political point, which the Court also plainly got right, is that any attempt to settle this issue by judicial fiat is bound to fail. To those who think that judicial fiat can settle an issue of even slight importance in the culture wars, well, think again. Roe itself is still a hot-button issue 30 years after its issuance, and has done more than anything else to keep the abortion issue from having been settled sensibly and consensually by the political process long ago. Roe is also the main reason why the judicial confirmation process is today such an absurd and degrading spectacle. As for same-sex marriage, the 2004 presidential campaign was proof positive that any effort by judges to try to impose some view, either pro or con, on an unwilling public would backfire badly.

Lawyers and law profs, particularly those of a lefty persuasion, need to get over the destructive impulse of viewing judges, and particularly the Supreme Court, as some kind of secular collective papacy, engaged in the interpretation of Holy Writ by a process that entitles the Court to issue infallible edicts ex cathedra on whatever issue of the day the lefties decide is "fundamental." As long ago as Dred Scott, it became clear that such an approach was just not going to win acceptance from a sceptical public that felt itself on the losing side of an issue the Court had no business trying to decide in the first place.

And, even where there is some textual warrant in the Constitution for a Court to wade into the culture wars, as in the endless litigation over Christmas decorations in the public square, judicial rulings have done nothing to convince the public that the judge's say-so is the end of the matter.

So it was a pleasant, if not unexpected, development to see the Appellate Division get this one exactly right, both legally and politically.

mtrobertsattorney said...

Mary's political philosophy: "Urban areas, liberal areas, educated areas" are good. "Other enviroments" are bad. "Truly brilliant legal minds" can see "how things play out in the real world". "Higher minds" know same-sex marriage is good. Those who do not know this are "bigots". It is bad to have places in American society that are not "highly evolved". "Bright legal minds" will make the unenlightened "see the light".

Whatever kind of govenment this is, it ain't democracy.

PatCA said...

"...prolongs divisiveness and defers settlement of the issue."

As in Roe v. Wade.

I once attended a one-week seminar on solving contentious problems in a democratic and open way. It was great, and effective. This is what partisans should be doing instead of hurling lawsuits at each other and amping up the cycle of bitterness.

Pooh said...

Richard said Second, as the Court's citation to Roe v. Wade made clear, the Court was concerned to get this decision right both legally and politically. The notion of deferring to the political branches on disputed social issues where the Constitution does not speak directly is hardly radical. After all, the point of a constitution in the American system is to provide an ordered structure for the people to rule themselves. It's called democracy.

Nodding in agreement. I'm for same-sex marriage, but until sexual orientation is declared a protected class, (and that's a whole other debate) proponents don't have a constitutional leg to stand on. (Except up here in Alaska: Limitation of benefits to married couples violates equal protection as LGBT can not marry. 5-0. Under a rational basis test. Which frankly boggles me...)

mtrobertsattorney said...

I'm as confused as Pooh is over the Alaska case. I don't know of a case anywhere where the claim is made that an equal protection violation exists because the plaintiff is unable to meet the requirements of another constitutional provision.

Peter Hoh said...

Mary, growing tolerance for gays and lesbians is not just happening in liberal enclaves. Andrew Sullivan has had some very interesting letters from gays who have discovered that people in their small, conservative towns happen to be pretty supportive.

Pooh said...

My (Alaskan) Brother Jack,

To clarify, I'm confused that the court applied and invalidated under rational basis scrutiny. Not to bore, but Alaska courts have traditionally applied provisions of the state constitution to extend much further than their federal counterparts. So finding an equal protection violation is not, in itself, bizarre.

JohnF said...

I am surprised that so many people here confuse the two concepts:

(a) That's a good idea!


(b) the law.

Not every good idea is embodied in the Constitution, statutes or common law; and many bad ones are. Fortunately we have ways to change the status quo. Judicial fiat is usually the worst.

Pooh said...

John, that should be a standard disclaimer to anyone who wants to comment on a legal/judicial issue. Well put.

Pooh said...


Not to quibble, but I don't think 'rational basis' means what you think it means. "Rational basis" (usually) means that a state's (say Alaska's) asserted interest in controlling the costs of partner benefits should be enough (especially since the law at issue is facially neutral).

I'm saying I wish the court had gone further and applied some heightened level of scrutiny (which I think that under the broad reaches of the AK constitution, sexual orientation is due).

Note that the opinion I linked to only says that the restriction of benefits to married couples is unconstitutional. As far as I know the 'remedy' phase of the case is ongoing. I would be shocked if the court announced a right to same-sex marriage.

Beth said...

Perhaps Mary is thinking of Kazakhstan or some lovely idyll where the Taliban reigns.

Nah, she's probably thinking of Kansas, or Louisiana, or Ohio, or Texas, or any of the states that passed anti-gay marriage and partnership amendments last year. You don't have to cross the ocean to find people who are dismissive to gays and lesbians. Lovely to imagine that only the Taliban fits her concerns, but that's just a fantasy.

Tony said...

Currently for most of the planet, "marriage" means the union of one man and one woman. In the case of polygamy, it means multiple sets of this.

Until the legal definition of marriage is changed, homosexuals simply don't qualify.

It's like in the case of dog licenses. You can't buy a dog license for a cat, and you can't do it by saying that a cat is just a different kind of dog. You can't even do it by saying you're violating the cat's civil rights.

What you can do if you want is eliminate dog licenses completely and make "animal licenses".

The state has a vested interest in protecting marriage as it stands. Producing the next generation of citizens in a stable environment is important to the continued health of any society.

What is the states vested interest in "gay marriage"?

Oh, and alh ipinions,
You really ought to know better than to try floating that old 50% canard. That takes into account the same people being married over and over and over again.