Lawyer-Wearing-Yarmulka

I haven't read the opinion yet, but one quote caught my eyes, which sums up the the entire debate about using the courts to create SSM. From Judge Robert Smith:

"We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives".

Exactly.

[UPDATE]

I read the majority opinion. Good stuff, well reasoned, and focused on the law, and not emotion. On the other hand, the dissent starts off with emotional fluff about homoesexuals wanting to live full lives and better their communities.

I prefer the other one, of course:

"It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation," she wrote. "The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today's decision as an unfortunate misstep."

Your quote could be an argument for slavery, against miscegenation, or really for *anything* that the majority of the people want to do to a minority.

Ah, but who is to say that SSM is an individual liberty guaranteedby the New York State Constitution?

Read the majority opinion and it is clear that it is not.

Ah, but who is to say that SSM is an individual liberty guaranteedby the New York State Constitution?

Whether it is or isn't is irrelevant to your quote. Which is exactly why it's a disingenuous quote. Even Judge Smith must believe that the question at hand is not whether "the present generation should have a chance to decide the issue through its elected representatives" in a general sense, but whether, for this particular issue, the decision the elected representatives make is constitutional.

The quote tries to frame the issue as one where one side is against the concept of legislation by elected representatives when in reality that side merely thinks (correctly or incorrectly) that this particular legislation is unconstitutional.

Anti-miscegentation laws were ruled unconstitutional *despite* the people's wish "to decide the issue through its elected representatives." If the issue is consitutionality, don't try to frame it as populism.

Even Judge Smith must believe that the question at hand is not whether "the present generation should have a chance to decide the issue through its elected representatives" in a general sense, but whether, for this particular issue, the decision the elected representatives make is constitutional.

Of course. The case dealt with SSM, not with the general question of courts striking down laws that are popular.

I'm not sure how my quote is disingenuous- the issue of SSM should be decided by the legislature.

And stop trotting out anti -miscegentation laws. There's no comparison between SSM and misogyny. (From a legal perspective)

I'm not sure how my quote is disingenuous- the issue of SSM should be decided by the legislature.

Because it's constitutional (according to the majority opinion.) By leaving that part out, the quote makes it sound like one side of the debate is in favor of Democracy and the other is in favor of Judicial tyranny. Though it's a common charge, it's baseless, and this disingenous quote is a perfect example of how it's made all over the country.

And stop trotting out anti -miscegentation laws. There's no comparison between SSM and misogyny. (From a legal perspective)

I'll grant you that I'm neither lawyer nor law student, but the parallels are pretty hard to miss. You have two people who want to marry each other while the majority of the population believes they shouldn't. The couple argues that they deserve equal treatment under the law according to the constitution. The opposition argues that their alleged right to marry is not covered by the constitution. Perhaps the specific arguments are different, but pretending that there's "no comparison" is the epitome of missing the forest for the trees.

There are many differences, but here's probably the most important: anti -miscegentation laws were written for discriminatory purpose. They were designed to seperate the races, and more importantly, to humilate and reinforce the inferior status of blacks.

You can't make the same arguement about a marriage law written about 100 years before anyone even though of the idea of two men marrying. There's no discriminatory intent in the law. There might be in the application, but that often isn't enough to find a law unconstitutional. See Washington v. Davis.

I'm not a NY Constitutional law expert by any stretch of the imagination, but a ruling that says the constitution has nothing to say on this issue leaving the choice in the hands of the legislature sounds very reasonable.

I was disappointed that the majority opinion brought up the child raising argument against homosexual marriage. They had a solid opinion without using this example. If this was the point of marriage laws then infertile couples, including old hetersexual couples, would not be allowed to marry and couples with children wouldn't be allowed to divorce since it would be placing a child in an environment without a care giver of each sex. And to say that homosexual parenting is worse than single parenting has always struck me as logically flawed.

bsci- read the actual opinion- the court didn't say that it's better for a child to be raised by a male and female, they said that the legislature could rationaly reach that conclusion. And thus they defer to the legislature.

From the opinion: "In the absence of conclusive scientific
evidence, the Legislature could rationally proceed on the commonsense premise that children will do best with a mother and father in the home. And a legislature proceeding on that premise could
rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite sex households."

CYW, that's the exact statement of flawed logic. The first flaw is that marriage laws weren't solely written to induce optimal child rearing. The second flaw is the assumption that a homosexual couple is inferior to a single parent. (i.e. couldn't marriage be a good inducement for a single gay parent to find a life partner?)

Their ruling would have been on solid ground if they just said, "The NY Constitution doesn't specifically address this issue so it is up to the legislature to decide." Instead, they also added this poorly thought out comment that the legislature could base current policy on optimal child rearing.

It's not flawed logic, and it's not a comment, it's the basis for their decision. Every law still must pass rational review. They aren't assuming that homesexual couples aren't unfit, they're saying that the legislature could rationly reach the conclusion that it's best for children to be raised by a mother and father. Nothing flawed in that.

Do the current marriage laws cite child raising as the reason for the laws existence? I suspect not (but as a lawyer who knows where to look for this stuff, you can prove me wrong). If child raising not not the purpose for state marriage laws, then arguements rooted in the idea that marriage is for child rearing are flawed.

If child raising not not the purpose for state marriage laws, then arguements rooted in the idea that marriage is for child rearing are flawed.

Laws don't have to state their purpose, it's perfectly fine for the state to justify them later if they are being challenged.

ok. So, if the purpose of marriage is optimal child rearing, why are infertile couples allowed to marry? Why don't marriage contracts require the couple to state that they are planning to have chldren?

Child raising is one societal benefit of marriage. Long term mutual support as a couple (i.e. marriages of the elderly) is another societal benefit. Using secular arguments only, what is the benefit of allowing an 80 years olds hetersexual couple to marry that cannot also be applied to an 80 year old homosexual couple?

ok. So, if the purpose of marriage is optimal child rearing, why are infertile couples allowed to marry? Why don't marriage contracts require the couple to state that they are planning to have chldren?

All wonderful questions. But you don't understand the nature of judicial review. When a court uses rational review of a law it doesn't look to see if there a better ways to promote the state's interest or if the law is under or over inlcusive. The judiciary doesn't exist to second guess them on these matters.

You can't make the same arguement about a marriage law written about 100 years before anyone even though of the idea of two men marrying. There's no discriminatory intent in the law. There might be in the application, but that often isn't enough to find a law unconstitutional.

That's interesting. After reading the decision, you're right, it does look like that is the distinction the majority opinion makes. Basically, the law is constitutional for 2 reasons: 1) it was not intended to be discriminatory, regardless of its effect; and 2) that the court is not yet willing to conclude that limiting gay marriage is irrational.

The former may make sense from a legal standpoint. However, morally, it makes no sense. The latter, though, rests on this argument:

The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

Basically, because "almost everyone" thought marriage was for a man and a woman until very recently, as compared to racism, which people started to realize was wrong a couple centuries earlier, limiting gay marriage is not equivalent to limiting miscegenation.

It's a strange argument and, I think, a weak one. At issue is, the court admits, whether or not there is a "rational basis for limiting marriage to opposite-sex couples." Yet it abdicates the responsibility of determining the question, choosing to fall back on what is essentially a tradition of discrimination: "the common-sense premise that children will do best with a mother and father in the home."

Seems like pretty flimsy reasoning to me -- a premise which is likely false but certainly unsupported by evidence is justification for legalized discrimination because it's "common sense."

I'm not saying that there are better ways to promote the state's interest. I'm saying that a law was created for multiple reasons and they judges are using rational review to only address one of those reasons.

This is not a perfect example, but what if a judge rules that speed limits were created to conserve gasoline so it would be perfectly reasonable for legislators to pass laws that electric cars or highly gas efficient cars to not observe speed limits. This actually focuses on the inital purpose of speed limits but completely ignores the safety reasons for having speed limits.

bsci - under rational basis review, as long as there is one possible rational reason. Once a rational reason is found, no further analysis of other potential reasons needs to be undertaken.

The former may make sense from a legal standpoint. However, morally, it makes no sense.

Morality should play no role in a judge's ruling on a law.


It's a strange argument and, I think, a weak one. At issue is, the court admits, whether or not there is a "rational basis for limiting marriage to opposite-sex couples." Yet it abdicates the responsibility of determining the question, choosing to fall back on what is essentially a tradition of discrimination: "the common-sense premise that children will do best with a mother and father in the home."

Courts have never considered sexuality a protected class. It's not up to the court to determine if it is indeed true that children are better off with a mother and father. That's the job of the legislature.

It's not up to the court to determine if it is indeed true that children are better off with a mother and father. That's the job of the legislature.

The rationale basis arguement of the court starts with the basis assumption that children are better off with a mother and father. How can it both be something that it key to the court's rational basis arguement and also not be something for the courts to decide. Is there NY law that already states that children are better off with a mother and father?

bsci - rational basis judgment doesn't mean that the court agrees with that basic assumption, only that such a finding would not be irrational. For example - it would be rational for someone to believe that raising taxes will raise government revenue. It would also be rational for someone to believe that a tax-hike would decrease government revenue due to a decrease in economic activity. Although these two positions are in opposition to each other, they are both still rational.

So too, the Court is saying here that a finding that traditional marriage is better for children is rational. This does not mean that they have held that a law based on the premise that same-sex couples are equally capable of child-rearing would be irrational, they are just saying that since both positions are rational, the legislature gets to pick which one to adopt.

Morality should play no role in a judge's ruling on a law.

I didn't mean to imply otherwise.

Courts have never considered sexuality a protected class. It's not up to the court to determine if it is indeed true that children are better off with a mother and father. That's the job of the legislature.

I don't remember seeing anything in the constitution about having to be part of a protected class to be entitled to equal treatment.

"I don't remember seeing anything in the constitution about having to be part of a protected class to be entitled to equal treatment."

Con Law Lesson (I know you're not a lawyer, so this may help explain things - it is meant to be informative, not snarky:

Equal protection, like pretty much every other right under the Constitution, is not absolute. Rather, the government may discriminate if it has a sufficient interest in doing so (and conversely may not discriminate if it has no such interest).

The Supreme Court has created three levels of scrutiny under which to analyze any discriminatory law, to see what type of government interest is necessary to overcome equal protection.

Certain "suspect classes" such as race and country of origin and alien status are subject to "strict scrutiny" which requires that the government show that the discriminatory law is "necessary" to acheive a "compelling" governement interest (and that the law is the least discriminatory way of acheiving this purpose).

Discrimination based on gender and legitimacy (non-marital children) is subject ot intermediate scrutiny - the Gov. must show that the discrimination is "substantially related" to and"important" government purpose.

For pretty much any other type of discrimination, including age, wealth,and sexual orientation - the person challenging the law must show that the challenged discrimination is not "rationally related" to any "conceivable legitimate" governemnt purpose.

As noted previously discrimnation based on sexual orientation falls into the third category - rational basis. So the burden for overcoming equal protection is very low, and is met by a finding that it would be "rational" for the government to restrict marriage to that between men and women in order to further its "legitimate" goal of providing a better overall environment for the raising of children.

Thanks for the explanation, SA. That did clear things up. I guess it then hinges on whether forbidding gay marriage is a "rational" way to further it's goal of a better environment for children. It seems to me that the Court is arguing that it's rational because it's traditional.

That there is no evidence to support the claim and the fact that forbidding gay marriage means that kids will be living with two gay, unmarried parents rather than two gay, married parents, which can hardly be seen by anybody to be an improvement, makes it difficult for me to understand that argument. However, I'm not sure how one can define "rational."

JA - you don't think it is rational (not necessarily correct) for someone to believe that a child is better served by a mother and a father than two mothers/fathers?

somewhat anonymous:

That isn't really the question at hand. The question is: is a child better served by two married but gay parents or two unmarried and gay parents? The gay couples and families exist; the only question is what their legal status will be. One could argue that there will be fewer families with two gay parents if gay marriage remains illegal, but it's certainly the case that there are currently a lot of two-parent homes (and two person, childless homes) which would benefit from marriage.

JA - When it comes to rational basis scrutiny (which is the context I was discussing) this is exactly the question at hand. A law will be considered rational if there one could rationally believe that the law advances a legitimate policy - even if said law also violates other policy goals, or is only weakly supportive.

The very fact that you said "one could argue" is pretty much dispositive in this case. As long as the issue in question can be approached rationally from the challenged position, the courts will defer to the legislature as to which policy to adopt - even if many persuasive policy arguments can be marshalled in opposition to the law.