Court of Appeals: Get to the back of the bus
â€œWe 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.â€
Thus spake the Court of Appeals, New York State's highest court, today in rejecting marriage (and by extension civil) equality for gay and lesbian citizens and taxpayers.
The decision manages to set the stage for something I consider beneficial, but does so in the most grating terms possible.
The beneficial part is that the court has thrown marriage equality where I believe it belongs, which is to the legislature, which (Bruno and Silver notwithstanding) is the voice of the Sovereign People. I would suggest to the LGBT movement that our rights will be more firmly grounded if they are the result of an affirmative act by the elected officials of the state; as Abraham Lincoln knew, and many activists on civil issues do not, the firmest basis for civil progress is popular support, not an order from on high. If we do not yet have the people behind us, we have to work to change that; in this, I believe gay and lesbian New Yorkers will be successful, because our cause is fundamentally just. The court has placed a burden on us, but our community is equal to it, and will be stronger for shouldering it.
But what grates even more than the outcome is the reasoning the court employed.
The majority opinion agreed with lawyers for New York City and New York State that there was a rational basis â€” grounded in the stability of the family as a child-rearing institution â€” for limiting marriage to a union of one man and one woman.[...]
The court conceded that "the benefits of marriage are many." But the three-judge pluralitiy wrote that the Legislature could rationally decide, as a matter of social policy, that it is more important to promote the stability that marriage brings within an opposite-sex union than within same-sex unions.
In addition, it said, the Legislature could reasonably believe that "it is better, other things being equal, for children to grow up with both a mother and a father."
What's offensive here is this: first, the court bought into openly discriminatory arguments that gays and lesbians can't raise children and that our relationships are intrinsically of a lesser order than heterosexual relationships. This despite the evidence to the contrary of, say, Rudy Giuliani's first marriage and Sean Patrick Maloney's family; which of the two seems happier, not to mention to provide a healthier home environment?
Second, the court employed what is called the rational-basis test; while this a wonkish point, notably, American jurisprudence recognizes several levels of examination of legislation that discriminates between classes of people. The highest standard, applied to women, racial and religious minorities - protected classes under U.S. law - is strict scrutiny, which implies that any discriminatory legislation against a protected class must prove that whatever its rationale, the effect is not discriminatory. The less stringent rational basis test merely demands that discrimination between individuals or classes meet a defined objective the court finds rational. The court has found a rational basis for exempting us from the equal-protection and due-process clause of the state constitution.
This is what happens when you let republicans appoint judges. Log cabin republicans, take note.
[Update:] Empire Zone notes that the majority that wrote the opinion was appointed by Pataki. QED.