Note: If you're here to comment on one of my columns in the July 6 editions of The News-Review and The Suffolk Times, feel free to email your comment to me: email@example.com. I felt compelled to write this morning about yesterday's decision by the N.Y. Court of Appeals upholding the state's ban on gay marriage.
Yesterday's decision by the New York State Court of Appeals was a bad decision, and not because I don't agree with its conclusion. The decision is seriously, shockingly flawed. (Read the decision at
The opinion written by Judge Smith for a 4-2 majority stated its conclusion up front:
"We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature."
The way the opinion reads, it seems as though the court reached its conclusion up front and then bent over backwards to justify it, employing circular logic, flawed reasoning and misinterpreted precedent in the process.
Here's the court's circular logic:
The court held that marriage is a "fundamental right" — but only for straight people. It's not a fundamental right for gay people, the court said, because gay people have never been allowed the right to marry.
Then, the court reasoned, since the law banning gay marriage is not restrictive of a fundamental right for gay people, the court need only find a "rational basis" for the law in order to uphold it.
The "rational basis" standard is a much lower standard to meet than the "strict scrutiny" standard required when a law affects an individual's fundamental rights. It's the difference between asking "Is there any legitimate state interest in regulating a particular activity?" versus "Does the state have a paramount interest in taking this action, an interest so compelling that even fundamental individual rights must bow to it?"
It found its rational basis in the legislature's intention to protect children. Marriage promotes stability in relationships, the court said. Stable relationships are preferable for child-rearing. Since only heterosexual sex results in children, the court reasoned, the state can legitimately promote stability in heterosexual relationships only by allowing only opposite sex couples to marry.
There are tens of thousands of children being raised in same-sex households in New York state alone — regardless of how, where or by whom those children were conceived. If there's a state interest in promoting stable households — for the sake of the children — why isn't there a state interest in promoting stable same-sex households where children are being raised?
Using this kind of "logic" the state legislature could also prohibit marriage between opposite sex couples where the woman is beyond child-bearing years. Since the marriage wouldn't further the state's interest in promoting stable households for children, it could be restricted.
But the real flaw in yesterday's court decision is turning aside the claim that the gay marriage ban tramples on a fundamental right — which allowed the court to indulge in its cockamamie "rational basis" analysis.
The court says "fundamental" means "deeply rooted in this nation's history and tradition." The right to marry is "unquestionably fundamental," the court ruled, but not for gay people because the right of same sex couples to marry is not deeply rooted in our nation's history and tradition.
In other words, straight people have different — read: more — fundamental rights than gay people because that's always been the way it is and always has been.
Chief Judge Judtih Kaye, in her dissenting opinion, tears apart the majority's flawed rationale: "[F]undamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights."
Judge Kaye points out that this kind of flawed logic was previously used to ban interracial marriage. Since blacks and whites didn't traditionally enjoy the right to marry one another, it wasn't a fundamental right and the states could prohibit it.
More recently the same flawed logic was used by the Texas courts to uphold that state's ban against consensual sodomy by homosexuals. The court in Texas "framed" the question as whether homosexuals have a fundamental right to engage in sodomy." The Texas court said that homosexuals never had that right, so therefore it couldn't be a "fundamental" right. (Sound familiar?) The U.S. Supreme Court ruled that the Texas court asked the wrong question. The correct question was whether consenting adults have a fundamental right to engage in private consensual sexual conduct. By framing the question too narrowly, the Texas court reached the wrong conclusion, and the Supreme Court overturned the Texas court's decision (Lawrence v. Texas, 2003.)
Judge Kaye establishes three bases for "heightened" scrutiny of the law banning gay marriage. First, homosexuals meet the constitutional definition of a "suspect class" — a group whose defining characteristic is "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy." Second, the statute banning gay marriage constitutes sex discrimination. It's a classification based on sex. Third, the law infringes on the exercise of a fundamental right.
Judge Kaye even punches huge holes in the court's "rational basis" argument: It's not enough that the state have a legitimate interest in recognizing or supporting same-sex marriages, the "relevant question" is "whether there exists a rationale basis for excluding same sex couples from marriage and whether the state's interests in recognizing or supporting opposite sex marriages are rationally furthered by the exclusion. The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. "The State's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses."
"There are enough marriage licenses to go around for everyone," Judge Kaye notes.
Yes, there are.