Textualism Outbreak in NY Courts

UPDATE: Polygamy article, plus a New Jersey decision back in June, below.

As predicted, a New York State Appellate Court reversed a February trial court's ruling that would have allowed same sex marriage. Importantly, the 4 to 1 majority opinion rejected judicial activism, and properly grounded its holding on separation of powers--to the extent of citing the dissent in the Massachusetts gay marriage decision (Slip Op. at 5-6, 9):

We find that the motion court erred in granting plaintiffs summary judgment and finding the provisions of the DRL unconstitutional to the extent that they do not permit same-sex marriage. 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. . .

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" (Goodridge v Dept. of Pub. Health, 440 Mass 309, 356, 798 NE2d 941, 978 [2003] [Spina, J., dissenting]). 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 (see Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 NYU L Rev 1185, 1205-1208 [1992] [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]).

The power to regulate marriage lies with the Legislature, not the judiciary. "[T]he Legislature in dealing with the subject of marriage has plenary power" (Fearon v Treanor, 272 NY 268, 271 [1936], appeal dismissed 301 US 667 [1937]). Hence, "[i]t is the Legislature that is the appropriate body to engage in the studied debate that must necessarily precede the formulation of social policy with respect to same-sex marriage and the decision to extend any and all rights and benefits associated with marriage to same-sex couples, and, in turn, the amendment or expansion of the laws presently governing the institution of marriage in New York" (Matter of Shields v Madigan, 5 Misc 3d 901, 908 [2004]). "Rights are defined by the Legislature, not the Judiciary. Plaintiffs must take their request for an alteration in the definition of marriage to the elected officials responsible for drafting the marriage statutes. Judicial intervention is warranted only where the Legislature has placed an unreasonable restriction on access to the legislatively defined right" (Lewis v Harris, 2003 WL 23191114 at *20 [NJ Super Law Div, Nov 5, 2003], affd 378 NJ Super 168, 875 A2d 259 [2005]). . .

The motion court's decision, by redefining traditional marriage, usurped the Legislature's mandated role to make policy decisions as to which type of family unit works best for society and therefore should be encouraged with benefits and other preferences. It effectively dismantled the legislative construct and treats all intimate and dependent relationships as equal. This is an impermissible intrusion by the judiciary upon the legislative domain. The question of what statutory recognition, if any, same-sex couples should receive in New York is one that must be referred to the Legislature in accordance with its historical role.

The dissenting judge saw a transgression of the state Constitution's due process and equal protection clauses--by applying strict scrutiny (arguing NY law should go beyond SCOTUS rulings) and assuming the conclusion (that same-sex marriage is a civil right protected from discrimination) (Slip Op. at 36-37):

Regardless of whether some, or even many people believe that heterosexuals should be given preferred treatment and provided with institutions and benefits to protect their interests, such a proclamation by the government would be an act of discrimination on the part of the government.

This is nonsense. Whatever one's view on gay marriage, it's a recent construct post-dating the Federal and most state Constitutions. It's also a contentious issue well suited for resolution by the governmental body best able to debate such questions, says Gay Patriot: "The path to gay marriage is long-term fundamental changes in public opinion and winning votes in legislatures and state referendum."

As Rhymes with Right concludes:

Judges don't make constitutional law -- the people do. . . [This] is sure to upset liberals, who believe that law is what the courts say it is and that a right is a right because liberals say it is.

They already are. But I'm hopeful others -- such as NYC Mayor Mike Bloomberg -- might take the hint.

More:

An article on the pro-polygamy movement in Sunday's Washington Times pointed to Lewis v. Harris, Docket No. A2244-03 (N.J. App. Div. June 14, 2005), a New Jersey intermediate appellate decision similar to the New York case (citations omitted):

In reviewing the constitutionality of the statutes that limit marriage to members of the opposite sex, as in reviewing any other statute, we must keep in mind that those provisions "represent[] the considered action of a body composed of popularly elected representatives" and therefore are entitled to a strong presumption of validity. This presumption "can be rebutted only upon a showing that the statute's 'repugnancy to the Constitution is clear beyond a reasonable doubt.'" The personal views of the members of the court concerning "the wisdom or policy of a statute" should play no part in determining its constitutionality. A constitution is not simply an empty receptacle into which judges may pour their own conceptions of evolving social mores. "To yield to the impulse to [invalidate legislation merely because members of the court disapprove of its public policy] is to subvert the sensitive interrelationship between the three branches of government which is at the heart of our form of democracy." Consequently, our personal views of the legislative decision to limit the institution of marriage to members of the opposite sex are irrelevant. The only question is whether this legislative decision violates a specific constitutional provision. . .

The same form of constitutional attack that plaintiffs mount against statutes limiting the institution of marriage to members of the opposite sex also could be made against statutes prohibiting polygamy. Persons who desire to enter into polygamous marriages undoubtedly view such marriages, just as plaintiffs view same-sex marriages, as "compelling and definitive expression[s] of love and commitment" among the parties to the union. Indeed, there is arguably a stronger foundation for challenging statutes prohibiting polygamy than statutes limiting marriage to members of the opposite sex "because, unlike gay marriage, [polygamy] has been and still is condoned by many religions and societies." Nevertheless, courts have uniformly rejected constitutional challenges to statutes prohibiting polygamy on the grounds that polygamous marriage is offensive to our Nation's religious principles and social mores.

(via Instapundit, Pajamas Media)