Saturday, February 05, 2005

The Deluge

Yesterday, a NY lower court said the state Constitution and Civil Rights law allowed gay marriage. The decision is an atrocity: founded on policy, dismissive of statute and precedent. The Judge, liberal Doris Ling-Cohan, based the ruling principally on the state Constitution's general due process clause (Art. 1, Section 6). That clause says nothing about same-sex marriage, of course--but she read the right to marry as fundamental and inclusive of gays. The judge relied heavily on a statute defining marriage as civil -- not religious -- without forbiding gay marriage (DR Section 10), but trivialized nearby sex-specific clauses:
  1. DR Section 12: the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife.

  2. DR Section 15(a): It shall be the duty of the town or city clerk when an application for a marriage license is made to him or her to require each of the contracting parties to sign and verify a statement or affidavit before such clerk or one of his or her deputies, containing the following information. From the groom: Full name of husband, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage. From the bride: Full name of bride, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage.

  3. DR Section 50: Property of married woman. Property, real or personal, now owned by a married woman, or hereafter owned by a woman at the time of her marriage, or acquired by her as prescribed in this chapter, and the rents, issues, proceeds and profits thereof, shall continue to be her sole and separate property as if she were unmarried, and shall not be subject to her husband's control or disposal.

  4. DR Section 73(1): Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, natural child of the husband and his wife for all purposes.
The court conceded the state's Human Rights Law didn't address marriage, but relied in part on the state Civil Rights Law that was similarly silent. Footnote 35 is an especial horror--she construes a statute explicitly prohibiting inferences about gay marriage as part of the "evolving" trend.

The court claimed to rely on state decisional law, but cited a slew of Federal rulings (Lawrence especially), plus the ever-popular "what does Canada do" irrelevancy. She stayed clear of equal protection, in light of authoritative state precedent (Under 21 v. City of New York, 482 N.E.2d 1 (N.Y. 1985) (Human Rights Law does not “include a person’s ‘sexual orientation or affectional preferences’ among the proscribed basis” of discrimination.). Yet the Judge essentially read an equal protection component into the state Constitution due process clause.

Remember the argument that permitting gay marriage inevitably permits polygamy? This Judge says 'bring it on':
Defendant’s historical argument is no less conclusory than amici’s tautological argument that same-sex marriage is impossible, because, as a matter of definition, “marriage” means, and has always meant, the legal union of a man and a woman. Further, the premise of that argument is factually wrong; polygamy has been practiced in various places and at various times, for example, in the Territory of Utah. See Davis v. Beason, 133 US 333 (1890); Genesis 29: 21-30; Deuteronomy 21: 10-17.
Says Evangelical Outpost:
I can’t decide which is more ironic: the fact that the judge uses the Bible as a reference source in a making the case for same-sex marriage or that polygamists will use that wording to justify extending marital rights to their own relationships.
I agree with Kevin at Wizbang: This is pure judicial activism. It's the single most irresponsible, extra-judicial ruling I've ever read. The only good news is a 30 day stay in the decision's effective date. Let the appeals begin.


Say Anything disagrees:
We on the right need to let this issue go. Our constitution, the 14th amendment to be exact, guarantees equal protection under the law for all citizens. Whatever your disposition toward the idea of homosexuality you cannot deny that our laws require equitable application.
I don't agree. First, the decision did not purport to rely on either the 14th Amendment or on "equal protection," though I view those claims as sophistry. But, more importantly, America twice settled similar issues through the democratic process established by the Constitution: slavery (13th, 14th and 15th Amendments) and female suffrage (19th Amendment). What's different here?

Still More:

My middle-ground position on gay marriage is a matter of record. I agree with GayPatriot's summary, which includes:
  • I oppose FMA and am disappointed in President Bush in pursuing it. But as Lincoln said, he would rather have kept slavery in order to preserve the union; I think we need to put the gay marriage debate in the context of a nation at war and ask is this really the time to push for it when 2/3 of America opposes it.

  • I vehemently oppose using the court system to subvert the will of the people. I disagree with people like Matt Foreman of the National Gay and Lesbian Task Force who said "basic human rights should never be put up for a vote." That isn't consistent with democracy.

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