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Apparently, There Aren’t Enough Marriage Licences to Go Around
Though we generally reserve longer court-opinion write ups for Supreme Court cases, we make a special exception today for Hernandez v. Robles (PDF of the Opinion), otherwise known as the New York Court of Appeals case that fails to recognize the state constitutional legitimacy of same-sex marriage.
The New York Court of Appeals takes the easy way out here, basically blaming the Legislature. The court not only suggests that the question of same-sex marriage is best left to the state legislature, but says that when the legislature enacted the law that governs marriage 97 years ago, it implicitly intended that same-sex couples could not wed. New York state legislature: The ball is now in your court.
The facts are few: 44 same-sex couples in New York applied for, and were denied, marriage licenses. So they all brought their cases to the court system, and their cases were consolidated. The central question: Is the restriction of marriage to same-sex couples invalid under the New York constitution.
In the majority opinion, the court acknowledges that the Domestic Relations Law (which governs NY marriage) doesn’t come right out and say that same-sex couples were not allowed to marry; however, the court asserts that this was the universal understanding when the law was passed in 1909 (though, interracial marriage was not allowed at the time, either). Moreover, the law refers in general to “man” and “wife,” “bridge” and “groom,” etc., suggesting that the law was limited to opposite sex couples.
So the big question is whether the limitation is valid under the New York constitution, and the court says it is. In essence, the court suggests that the Legislature could limit marriage to opposite-sex couples, precluding same-sex couples, based on the ole’ “welfare of the children” argument. The court asserts, perhaps ignorantly, that heterosexual marriages provide more “stability and permanence” in their relationships, and that homosexual marriages could be seen as more casual and thus dangerous to children. The court also falls back on the usual “it is better for children to grow up with both a mother and a father” argument, an assumption the court makes not based on scientific evidence, but on “common sense.” Ah – yes. Good ole’ “common sense.”
The court also addresses the differences between interracial marriage and homosexual marriage by concluding that the struggle to legalize marriage between different races was a lengthy one with a long history of discrimination behind it. The court then suggests, rather mysteriously, that homosexual couples have not suffered enough yet to warrant their own marital rights.
The dissent basically argues that the right to marry is fundamental, and the majority opinion was wrong to conclude that gay marriage is not a fundamental right. “Simply put, fundamental rights are fundamental rights,” the dissent states. “They are not defined in terms of who is entitled to exercise them.” Moreover, the dissent argues, “discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples. Nor can ‘deeply rooted’ prejudices uphold the infringement of a fundamental right.”
My favorite line from the dissent, however, is as follows: “While encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the state, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.” (italics mine). The dissent also states that it is absurd to limit marriage to heterosexual couples based on the reasoning that it encourages them to procreate, especially since elderly couples are allowed to marry and prisoners have a fundamental right to marriage even if they aren’t allowed to procreate. Finally, the dissent thinks it’s ridiculous to leave the issue up to the legislature, based on the fact that the Supreme Court did not leave up to the legislature the question of whether different-race couples could marry, i.e., it did not wait around until all the states decided it was okay for a black man to marry a white woman — it stepped up and properly extended a fundamental right to everyone, regardless of race.
