New York Constitution Doesn't Protect Same-Sex Marriages

Gay rights activists were extremely disappointed by a 4-2 ruling from New York's highest Court of Appeals that New York's constitution does not compel recognition of marriages between members of the same sex. Instead, the majority deemed that a matter best addressed by the state legislature, which had already made it unlawful to discriminate against a person because of their sexual orientation under New York's civil rights law.

The case was brought by 44 same-sex couples who argued that they were deprived of their right to due process and equal protection under New York's constitution because they were deprived of their "fundamental right" to marry a person of their choosing, whether of the same sex or opposite sex. The Court conceded that opposite sex couples alone benefit from 316 statutorily-provided benefits, including tax advantages, rights in probate and intestate proceedings, spousal support rights, family insurance benefits and health care decisions.

The majority rejected the plaintiffs' argument that there existed a fundamental right for opposite-sex couples to marry, noting the long-held tradition of a marriage being between a man and a woman. The plaintiffs' case, accordingly, was afforded no heightened scrutiny by the Court; it only had to find that the legislature had a legitimate interest in excluding marriage from opposite sex couples, and that the classification for such purposes--all same-sex couples--was rationally based.

The majority concluded that the legislature had two rational grounds for limiting marriage to opposite-sex couples, both related to the welfare of the child. "Promoting stability" in opposite-sex relationships by legally recognizing their marriages alone serves the "welfare of the child" according to the court since it is undisputed that most children are born of sex between a man and a woman. The rationale for same-sex couples to marry does not "apply with comparable force" according to the court. "These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse."

The court also thought 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." The court reasoned, "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."

The court specifically rejected any comparison of laws against same-sex marriages and the former anti-miscegenation laws, which barred interracial marriages. The U.S. Supreme Court struck down these laws in a 1967 case, Loving v. Virginia. The majority contrasted racism with homosexuality: "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 - 9 - and its vestiges." While acknowledging that "there had been serious injustice in the treatment of homosexuals," the court made a distinction for "traditional definition of marriage," which it urged is not "merely a by-product of historical injustice." "The idea that same-sex marriage is even possible is a relatively new one," the majority wrote. The denial of same-sex marriages, in the majority's opinion, was not "irrational, ignorant or bigoted."

The court's chief judge wrote the dissenting opinion. Judge Kaye could not have disagreed more with the majority's opinion: "This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition." In her view, the right to marry is a fundamental liberty interest. "Central to the right to marry is the right to marry the person of one's choice," she wrote. She believed that, because the denial of a fundamental right was at stake, New York's law against opposite-sex marriages should be subject to strict scrutiny.

She was critical of the majority for taking same-sex marriages lightly because they are not "deeply rooted in tradition." As she explained, "Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights." That is precisely what she reminds the majority that the U.S. Supreme Court warned of in the Lawrence v. Texas striking down homosexual sodomy laws. The question in that case wasn't the narrow question of whether homosexuals had a fundamental right to engage in sodomy; rather, it involved the broader fundamental right to engage in "private, consensual sexual conduct"--a right that belonged to heterosexuals and homosexuals alike. Criticizing the majority, she wrote, "An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it . . . Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise
them."

Under Judge Kaye's analysis, homosexuals as a class would be treated as a suspect class--automatically requiring a strict scrutiny review. Laws grounded in a classification of one's sexual orientation "reflect prejudice and antipathy" she argues. Secondly, Judge Kaye believes that the denial of same-sex marriages constitutes a form of sex discrimination--another basis for requiring heightened scrutiny. And finally, because New York's law infringes upon the fundamental right to marry for persons who are attracted to persons of the same sex, and the state failed to demonstrate a compelling state interest for excluding same-sex couples from marriage, the law cannot be sustained.

Judge Kaye believes that history is on her side. "I am confident that future generations will look back on today's decision as an unfortunate misstep," wrote Kaye. "This court cannot avoid its obligations to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic" by passing legislation that makes marriage gender-neutral.

Gay rights activists plan to take their case to the legislature according to the Washington Blade. "We're very disappointed that the court was unable to vindicate the constitutional rights for the many thousands of gay and lesbian couples throughout New York state,' said Roberta A. Kaplan, an attorney who represented same-sex couples denied marriage licenses. "We will take this battle to the legislature."

Democrat National Chairman Howard Dean surprised observers with the very critical statement he issued today after the court announced its decision. "Today's decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal," Dean said. "It is up to the state legislature to act to protect the equal rights of every New Yorker."