I've just read the decision against gay marriage by the New York Court of Appeals and I'd like to share my thoughts. First, here's a link to the decision.
http://www.courts.state.ny.us/...
Basically, the Court refused to endorse the argument that gay rights are analogous to black rights. The Court found that the NY legislature has a right to its thinking against gay marriage, as reflected in the applicable marriage statutes, because those statutes don't abridge a fundamental right of gays. The awful part of this decision is that, because it says that gays have no fundamental right to couple under law, this decision sets back even legal cases in favor of gay civil unions. Yet, as bad as the decision is, I think we progressives and gays may have dodged a bullet in some ways when the Court ruled as it did.
The Court recommended that although the legislature's reasons for the statute aren't necessarily the most rational, yet they are rational enough that the Court won't overturn the decision of the legislature. If gay marriage is to reach New York, the Court seems to say, it will have to be by legislative enactment.
It all sounds pretty grim, but there might be a silver lining for gays, progressives and the Democratic Party. Because, as I discuss below, the ultimate results could have been much worse for gays and progressives had the decision gone the other way. First, here are some quite extraordinary quotes from the decision, in which the Court says that the legislature is not necessarily irrational if it accepts conservative arguments against gay marriage.
http://www.courts.state.ny.us/...
As I said, the Court didn't buy the argument that gays' right to marry each other is like blacks' and whites' right to inter-marry, a right that won protection in the Loving v. Virginia US Supreme Court case. In fact, the NY Court effectively rejected the argument that gay rights are like the Black Civil Rights.
The Court said,
<<If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice -- if we agreed with the plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial marriage that was plainly "designed to maintain White Supremacy" (id. at 11) -- we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving. But the historical background of Loving is different from the history underlying this case.>>
<< Racism has been recognized for centuries -- at first by a few people, and later by many more -- as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began.>>
<< It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2).>>
<< But the traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.>>
While the court rejected the idea that gays have the same marital rights as straight people, it did not reject protection for gays rights in general. It said that such protection did not extend to a "right" to marry one another because no such right constitutional right exists, in the opinion of the NY Appeals Court.
In its discussion of the State's Constitutional Due Process Clause, the Court found that:
The right to marry someone of the same sex, however, is not "deeply rooted"; it has
not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.
The Court discussed the supporting facts presented by the gay plaintiffs, but found sufficient rational basis in arguments typically presented by conservatives that the law in question against gay marriage should not be overturned. For example, the Court said that the New York State Legislature would be within the bounds of reason if it believed that gays do not need to marry because "they do not become parents as a result of accident or impulse," as do straight parents.
The Court said:
<< Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or
temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement -- in the form of marriage and its attendant benefits -- to opposite-sex couples who make a solemn, long-term commitment to each other. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.>>
So, what does all this mean?
First, I wonder if legal advocates for gays should not have proceeded more gradually in requesting gay marriages, building as blacks did, over a period of decades, an historical ladder of success. If, as the argument goes, gays have been as historically and intransigently resisted as have blacks, then it stands to reason that the country might resist gay rights almost as much as it resisted blacks' rights. It is easy to forget the perspective that once blacks were freed from slavery, it took us another 100 years to win the right to vote. Much progress has been made for gays over the last two decades and much remains to be done, but the New York decision seems to say that it is too soon to for a Court to order Americans to change their minds about this.
The biography of Charles Hamilton Houston, special council to the NAACP, gives some perspective on this. http://en.wikipedia.org/... Fifty-eight years passed between the Supreme Court decision that announced the "separate but equal" doctrine (Plessy v. Ferguson) and the Brown v. Board of Education decision that struck down the earlier decision for segregation. If discrimination against gays is as ingrained as discrimination against blacks, then maybe legal strategists for gays need a gradualist strategy patterned after the one that proved successful for the NAACP.
Second, maybe this is actually a "progressive" decision. Maybe the New York Appeals Court foresaw the dangers to democracy that might result from finding in favor of gay marriage in New York at this time. Look at it this way: Just before the 2004 elections, the Massachusetts Supreme Court found in favor of gay marriage in the same state from which hailed the Democratic nominee for President, John Kerry. Then, the Republicans used gay marriage to whip up conservatives to vote and John Kerry lost the 2004 election. Gays won in Massachusetts, but we got four more years of George Bush. Now, the Rule of Law itself is in question. Bush appointed two more conservative to the US Supreme Court - the same court that will often have to decide cases involving the rights of gays. http://www.whitehouse.gov/...
Now, we are three months from the 2006 Congressional elections and the Republicans are desperate for an issue to distract the nation from their incompetence and corruption. The Democrats look like they could gain some seats, because the Republican base is angry with elected Republicans. But what would happen if yet another state approved gay marriage at this time. Wouldn't the likely result be that Republicans would be whipped up into an anti-gay frenzy and turn out at the polls in numbers that otherwise would have been unachievable?
Moreover, the presumptive Democratic candidate for 2008, US Senator Hillary Clinton, represents the state of New York. If the New York Supreme Court approved of gay marriage at this time, would it not play directly into the Republican Party's 2008 election strategy of painting New York as a latter day Gomorrah, a place (like Massachusetts) where rampant sodomy and other immorality causes the Christian God to turn the whole population to salt? If the Court found in favor of gays at this time, it might effectively be hitting the "replay" button on the 2004 elections, granting the Republicans another four year lock on the Presidency, starting in 2008.
Had the NY Court decided in favor of gays, might it have given new ammunition to conservatives across the country who are arguing that each state needs to enact laws to restrict the rights of gays and "protect marriage"? Where might this have led, considering all of the states that have recently passed laws against gay rights? Is it wrong for Courts to weigh the political environment and foresee how the society will react to their decisions and limit themselves accordingly? Or should they rule without regard to the historical reactions of the society to similar decision, ignoring the fact that their decisions might lead to circumstances that are the opposite of what they intended?
When you look at it this way, you have to wonder whether this week's ruling against gays by New York Appeals Court really helped progressives (including gays) more than it did conservatives. Although the decision does not give gays the right to marry in New York, nor does it fuel the national neo-conservative theocracy movement that has brought us a more conservative Supreme Court and the war in Iraq. So, even as we regret the loss of gay marriage in New York, we might also contemplate the national mess we all - gays and straight - might have been in now, in the run-up to the 2006 Congressional elections and 2008 Presidential election, had the court ruled the other way. Maybe we dodged a bullet? We certainly live to fight another day.