NY High Court Says No to Gay Marriage

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Judge Robert Smith said New York's marriage law is constitutional and clearly limits marriage to between a man and a woman. Any change in the law should come from the state Legislature, he said.

"We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives," Smith wrote.

Whole story, via Fox News, here. I'm sympathetic to the idea that deciding issues such as this one via legislatures minimizes social disruption and backlash (abortion is the poster-child for the dynamic in which court-imposed rules supposedly short-circuit the legislative process and cause all sorts of problems). Yet it always seems to be folks who are not in the minority that advance that sort of argument. It's easy to counsel gays who want to get hitched to hurry up and wait if you're not gay, or to sign on to a status quo social contract that gives you the shit end of the stick if you're not gay. Which is not to say the courts should be deciding all manner of social policy; it's just to raise a point inspired by the judge's refusal to predict what future generations will think down the line (especially since it seems absolutely certain to me that future generations will have absolutely no problem with gay marriage).

Reason made the Hayekian case for gay marriage here and here.

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  1. When did “equal protection” morph into “equal benefits” anyhow? Don’t the people who try to prop up gay marriage as a “right” supported by the “equal protection” clause realize that the same logic can be used to undermine all social welfare programs which exclude people based on criteria such as income or skin color?

  2. From reading history it appears future generations could go either way on gay marriage.

    Wasn’t NAMBLA part of classical greek society? Seems like there were changes in acceptance in the generations between 500 BC and ourselves.

    The same goes for a host of other topics, including abortion, drug use, and the proper role of government in society

  3. One group that will certainly benefit from homosexual (I refuse to corrupt the word “gay” for the sake of political correctness)is the lagal profession. More marriages means more divorces.

  4. By all means, let’s not corrupt the word “gay” – what fucking century are you from, anyway?

  5. …it seems absolutely certain to me that future generations will have absolutely no problem with gay marriage).

    Reason made the Hayekian case for gay marriage…

    I’m no sort of Hayek expert, but that did bring me up short. Isn’t a Hayekian case at least in part that we are never “absolutely certain” what future generations will say?

  6. Loving v. Virgina, people, Loving v. Virginia.

    And NB to Yuri: Go get bent, you fucking trog. I say that as both a divorce lawyer and a card-carrying, cock-loving homo.

  7. MP, I’m not sure I understand your post. Equal Protection means that the state’s legal dealings should be the same for similarly situated individuals. The fact is that marriage confers benefits on individuals such as inheritance rights, marital estate rights, insurance rights, tax rights, etc. etc. These rights are denied gay couples, and I suppose any two guys or two girls, because they don’t fit the state’s definition of a legal couple, when a case can be made that their union is every bit as valid as the straight couple. So, yes, there is a logic that such reasoning could lead to similar problems in related fields. How is this an argument in your favor? I’m not really sure what your point is. Unless the government has some compelling reason, it can’t give a “benefit” to one person, and deny the same benefit to a similarly situated other person.

    As far as the NAMBLA reference goes, that is certainly a valid point, though it is clearly one extreme point on the far side of the continuum. Heck, the biblical version of marriage included polygamy, so our view of the “sanctity” of marriage has changed over the last millenia as well. Cherrypicking begets cherrypicking, and little useful discussion occurs.

  8. I’m sympathetic to the idea that deciding issues such as this one via legislatures minimizes social disruption and backlash

    Ooooh, yes, let’s avoid social disruption by letting the majority vote on whether or not the minority gets the full rights of citizens.

  9. Hayak’s point was that people who are free to form their own groups will do so and some groups or asociations will be more successful and lasting than other less successful and shorter lived associations. If the married homosexual lifestyle fullfills the needs of a portion of the population, then it will catch on and last. If on the other hand, homosexuals are more interested in having weddings than being married, then it will fade out and 100 years from now people will wonder what all of the fuss was about. Which will happen is anyone’s guess.

  10. I know Jennifer, Democracy just sucks. If we would just make you King and stop all of these dumb bastards from voting or having any say in their government or civic life, things would be so much better.

  11. I know Jennifer, Democracy just sucks.

    Which is why we are a democratic republic rather than a democracy–to reduce the chance that the rights of the minority will be held hostage to the whims and prejudices of the majority.

  12. Yeah John, so does the Constitution. It really sucks that we can’t just simple majority vote away our rights. Ahh the classic struggle between majority rule and inalienable rights…

  13. Equal Protection means that the state’s legal dealings should be the same for similarly situated individuals.

    No. It means for all individuals. “simularly situated” is your creation.

  14. Why is gay marriage a right? Because you say so? It has never been recognized at any point in the history of the county. It was never comtemplated by the writers of the Constitution or really anyone up until 20 or so years ago. There is no national consensus that it is a right. What makes a right? How is it that this one was invent whole cloth out of thin air? If we can invent this right, why not the right to have five wives or marry your dog or marry 12 year olds? If people can invent rights and insert them into the Constitution without democratic debate or and over the objection of the majority of the population, I think you might find that there will be some rights created that you might not be so fond of.

  15. MP: You’re absolutely wrong. Let’s play name that quote: “To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone” Anyhow, MP, unless I was on the Supreme Court of the United States and didn’t know it, I didn’t come up with the similiarly situated business.

  16. Why is gay marriage a right? Because you say so? It has never been recognized at any point in the history of the county

    Yes, yes, and once upon a time you could make the same argument for women’s suffrage, black freedom and blah blah blah. Is “argument from tradition” the best you can do?

    If we can invent this right, why not the right to have five wives or marry your dog or marry 12 year olds?

    Oh, please. Surely even you>/i> can do better than the “gay sex equals man-dog fucking” equation. That makes “argument from tradition” look downright logical.

    I think you might find that there will be some rights created that you might not be so fond of.

    I think you need to stop projecting your own prejudice and fear onto me. So long as people are not hurting others (the key word being “hurt” not “offend”) I am not going to feel hurt by the fact that others are given full and equal treatment under the law.

  17. why is straight marriage a right?

  18. (fixed for HTML goofups)

    Why is gay marriage a right? Because you say so? It has never been recognized at any point in the history of the county

    Yes, yes, and once upon a time you could make the same argument for women’s suffrage, black freedom and blah blah blah. Is “argument from tradition” the best you can do?

    If we can invent this right, why not the right to have five wives or marry your dog or marry 12 year olds?

    Oh, please. Surely even you can do better than the “gay sex equals man-dog fucking” equation. That makes “argument from tradition” look downright logical.

    I think you might find that there will be some rights created that you might not be so fond of.

    I think you need to stop projecting your own prejudice and fear onto me. So long as people are not hurting others (the key word being “hurt” not “offend”) I am not going to feel hurt by the fact that others are given full and equal treatment under the law.

  19. If we can invent this right, why not the right to have five wives or marry your dog or marry 12 year olds?

    Huh? Your last name wouldn’t be Santorum, would it? We’re talking about a contract between two consenting adults here, not some freak show.

  20. Why is straight marriage a right? Loving v. Virginia. The Supreme Court declared marriage to be a fundamental right.

  21. I don’t think that state-marriage is a right on its own. It’s a special instance of the right of contract and, as Den Beste noted before he went nutty and started doing nothing but blogging about anime, homosexuals have the same ability to marry anyone of the opposite sex that heterosexuals do. Two heterosexuals of the same sex can’t get married anymore than two homosexuals of the same sex can. So I don’t think there’s much of a claim that homosexuals can’t get married in this country, they can, they’re just subject to the same rules as everyone else.

    Now, the issue is that homosexuals want to marry individuals of the same sex and I’m in total agreement that if state marriage is going to exist (which it shouldn’t) they should be allowed to. The question, then, becomes what the best way to accomplish that goal is. I think the fastest way for the FMA to pass is a bunch of court cases, the “activist judges” line works with at least enough people that a few judicial decisions would get used as examples of why we need to “protect” our “families” from the threat of socially stable gay people.

    As such, in this instance, I think a more tenable solution is to change minds first and act through the legislative process. First the gay activist groups should undertake a large campaign to convince people that gays are just, you know, regular folks. Because the truth of the matter is that who you like to make out with has nothing to do with the rest of your life. Instead of crazy marches, have gay pride parades filled with women and men who look like professionals because that’s the large truth of the matter. Just people who like their own sex, no different than anyone else. Sell that first and the same-sex marriage argument is half won already.

    People don’t like the idea of their friends and neighbors being excluded from the culture at large, so we need to get people thinking of gays in the context of people who are, or could be, their friends and neighbors. After that the rest of the fight is much easier. Unfortunately, we’re fighting against thousands of years of religious teaching and cultural norms. And that’s why I think court-based solutions are likely to backfire badly enough that a slower, more legislative battle is the way to go about this particular issue.

  22. why is straight marriage a right?

    Because it is a tradition in society and everyone agrees upon it.

    Jennifer you never answered my question. What makes one thing a right yet other things not? If you would stop raving and think for a moment you might be able to answer the question. Also, if you would read what I wrote, I never said we shouldn’t have gay marriage, I said it is not a right in the Consitution. There is difference between something being the right thing and being a right found in the Consitution. If you would get over your own fear and ignorence and stop projecting it on me, you might understand that.

  23. There is no national consensus that it is a right.

    See Jennifer’s post about our democratic republic.

    What makes a right?

    The absence of harm to a bona fide third party, I thought.

    If people can invent rights and insert them into the Constitution without democratic debate or and over the objection of the majority of the population, I think you might find that there will be some rights created that you might not be so fond of.

    Ooh, this oughter be fun to watch.

  24. If we can invent this right, why not the right to have five wives or marry your dog or marry 12 year olds?

    Wow! There was all this hoo-ha about John’s different email addresses, and now we know why!

    Welcome to H&R, Sen. Santorum.

  25. dhex, exactly. The question I pose to the supporters of the NY ruling is this:

    If, in a couple generations, NY decides that marriage is only between a man and a man, or a woman and a woman, would you states-righters be all right with it?

  26. “The absence of harm to a bona fide third party, I thought.”

    If that were true, there would not be much government regulation left and we would have a very small government. That may be a great idea, but it is clearly not what we have in the United States.

  27. “What makes a right?”

    Well, I think they were invented by the founders and we have judges to interpret those rights and conservatives to cry “activist judge!” whenever a decision doesn’t go their way.

    A better question: Who is harmed by gay marriage? Someone please, I’m begging you, show me one straight person harmed by two people of the same sex marrying, having a relationship, kissing in public. The only defense seems to be tradition, meaning the tradition of the last 100 years when it comes to marriage. Oh yeah, fear plays a big part too. Fear that gay people will make them gay or gayer if that is a word.

    Just becuase this right is relatively new doesn’t mean that it is without merit.

    Do conservatives want to marry their pets or 12 year olds, because they seem to be the only ones bringing these rights up?

  28. I think the right-winger argument is that society is harmed because the family will no longer be the glue that holds society together. Sounds a bit like unfounded speculation, but then god and faith gets mixed up. There’s absolutely no evidence for any of this, but when you’re dealing with the right wing, faith trumps evidence.

  29. I never said we shouldn’t have gay marriage, I said it is not a right in the Consitution. There is difference between something being the right thing and being a right found in the Consitution.

    The Constitution is a limit on government power, not a list of things Americans are allowed to do. (Nowhere in the Constitution does it say ANYBODY cna marry, or have children, or hold a job, etc.) Give me a compelling reason why gay marriage should be banned (and “I think it’s icky” or “but. . . but. . . men and dogs committing acts of sexual congress!” are not compelling) and I’ll agree it is not a right, just as rape and murder are not rights. Otherwise, for fuck’s sake, come up with a better argument than “it’s never been done before” and “we must protect my dog’s virginity.”

  30. If on the other hand, homosexuals are more interested in having weddings than being married, then it will fade out and 100 years from now people will wonder what all of the fuss was about. Which will happen is anyone’s guess.

    no guesswork involved here at all as a homosexual married lifestyle has been fulfilling the needs of a portion of the population long enough to be considered that holiest of things: a tradition!

    the problem with this wait and see attitude is that it’s already been done.

    btw, what makes you think that homosexuals, as an enormous generalization, may be more interested in only having weddings where marriage is concerned when there is no historical evidence to lead you to believe this may be the case?

    good to see your true colors.

  31. Isn’t this about applying the law equally to all parties? Marriage law used to prohibit inter-racial marriage, after they allowed that, did polygamy take over? No one is allowed to marry 5 people. No one is allowed to marry at 12. No one is allowed to take a goat as a bride. Someone is allowed to marry a man. Why not me? If the government says I can marry 1 person, but liimits that on the basis of gender, that’s sexual discrimination, which in the eyes of the law, is, and I think should be, illegal.

    That’s not even getting into the issue of what makes a gender. There are many people born that are sexually ambiguous as well as some that are genetically one sex but appear to be another. Is Jamie Lee-Curtis’ marriage an offense? She is (allegedly) genetically a man (XY) and she’s (he’s??) been married quite a while and has 3 adopted children.

  32. Who is harmed by gay marriage? Someone please, I’m begging you, show me one straight person harmed by two people of the same sex marrying, having a relationship, kissing in public.

    Ok, one time, I was at my friends’ wedding in Massachusetts ((they’re gay). And well, one thing led to another and I ended up pretty drunk. I slipped cooming down the stairs and broke my arm. In my mind I wouldn’t even have been there if they weren’t getting married, so there ya go: I was hurt by gay marriage.

  33. I stand corrected Johnnykrisma. I finally have one example of someone getting hurt by gay marriage. It actually has more weight than any other argument I have heard. At least you can show damages.

  34. Seems to me that we libertarians should be agitating for the removal of THE STATE from the marriage business altogether.

  35. Good point, but how would the rights conferred by marriage be verified and enforced? By private contract? And private contracts are enforced by . . . I’m just not sure what an alternative would look like.

  36. “The absence of harm to a bona fide third party, I thought.”

    If that were true, there would not be much government regulation left and we would have a very small government.

    John accidentally defines the libertarian philosophy.

    That may be a great idea, but it is clearly not what we have in the United States.

    John accidentally defines the purpose of the libertarian movement.

  37. Yes, yes, and once upon a time you could make the same argument for women’s suffrage, black freedom and blah blah blah.

    Um, these were legislative actions.

    Amendment XIII [Abolition of Slavery (1865)]

    Amendment XIX [Women’s Right to Vote (1920)]

    Meanwhile the Supreme Court has been every bit as repressive as any other institution. Dred Scott. Plessy v. Ferguson. Roe v. Wade. Kelo.

    Seriously, if you think the Supreme Court is the branch that defends the liberties of the vulnerable, you’re being very, very selective in your reading.

    It is NOT the purpose of the Supreme Court to “look out for the little guy.” It’s to resolve disputes between conflicting interpretations of the law. The Constitution was not intended to provide Universal Rights. It did provide us with a mechanism for enacting those rights.

  38. All I’ll say is “Weren’t a lot of Democrats griping about damn redneck, Southern Republicans opposing gay marriage?”

    No, wait, it was the Republicans for wanting a Constitutional amendment to bar gay marriages…when the Democrats just wanted state constitutional amendments to do the same thing. (Because, you know, federalism is so important to Democrats.)

    Why am I talking about Democrats? Because the Republican is getting soundly and properly thrashed already, and I don’t want the donkeys left out. …And because bigoted Republicans at least admit their religious chauvinism and homophobia, while Democrats try to have it both ways and expect gay votes even as they exercise their bigotry.

  39. My note is something of a personal rant on the media coverage at large everywhere.

    I keep hearing over and over again the term “same-sex marriage” and “gay marriage”. Now that I think about it, I have no idea how that became a media standard. True, its an oxymoron. But only to people who already are set in a man-woman definition of marriage. I think there is a better reason to re-think the phrase — it’s misleading.

    To me, using the adjectives like “same-sex” to describe a change in marriage is problematic. It is misleading because it only describes who is going to benefit from changing marriage, not the change itself. In fact because it just concentrates on a small subset of people it acts like a pair of blinders. Many, I believe, are taking this superficially and think there is no change to marriage at all or any prospective harm.

    I submit that the proper term to describe that change is “neutered” for the reasons below.

    Exactly what would be neutered about marriage, and why? The shared public meaning of marriage across society is neutered, even if it only happens in one state. The Massachusetts Supreme Court decision Goodridge v Public Health decided that for the sake of the plaintiffs the current view of marriage needed to be changed. Marriage in its current form, they found, is defined by gender integration and that was a barrier to the same sex couples.

    So the order came down from the bench for marriage to be neutered. The people in individual marriages were not set to be neutered but all references to gender in official documents and law were to be removed neutering marriage as an institution. Every significance of fatherhood, motherhood needed to be struck down. And everything gender integration was capable of the state was required to expend its own resources provide to gender segregationists.

    And the court went further, painting the ideal of gender integration as the moral equivalent to white supremacy. Government instituted integration becomes the new bigotry, and allowing segregation is the new equality. And ironically the neutering is portrayed as an extension.

    Neutered marriage is, first and formost, and government sponsered and regulated romantic enterprise. When you take away the responsibility for children that may or may not happen in the relationship, that is all you have left in the romance that sustains the government involvement.

    I don’t know, you can’t really expect future generations to understand what a family is when all they are left is the government welfare basket of romance endorsement.

    I am for recognizing arrangements other than marriages for their mutual trust and possibility of raising children. Homosexual couples are a small minority in this camp though. We have many non-romantic arrangements, and arrangements involving more than one person in this category. RB’s seem the best way to handle this while keeping families intact.

  40. Fletch, Amen.

    Aside from that, about 80% of the problems inherent in relationships between unmarried couples can be resolved with appropriate paperwork. That’s a soapbox I haven’t climbed on for a while. Gonna have to get after my clientelle once again.

  41. bubba, thank you. I was about to post the same thing in response to the hyperbole above.

    Hint to those obsessed with bringing about gay marriage: First, convince the 51% of voters that your view of the world is correct and everyone else is wrong.

    Because even an OMG democratic republic has to keep the majority of its citizens happy if it wants to continue existing.

  42. Surely even you can do better than the “gay sex equals man-dog fucking” equation.

    Nah. He couldn’t do any better than that last time, why should this time be any different? I, for one, am recusing myself from the “discussion” this time.

  43. The Constitution defines our rights as citizens.

    9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    Unless you want to do this.

    Article 5. The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

    You could appeal to this if 9 and 10 are a problem
    (maybe)to this one

    14.1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Unless the feds can some how claim this one.
    Article 1 section 8.3
    The Congress shall have power:
    To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

    Of course 9 gals and guys in robes determine what the above mean.

    I would move to a state that says “Hey if you want to enter a contract with another or others go right ahead. That is you business”. When I was in the military I so enjoyed earning my rank and the money that came with it only to see guys 3 ranks below make the same because they had 4 kids. So if this fictional state said “Oh by the way… I don’t care what contractual agreement you have with another is, you are getting the same treatment as the rest.”

    I would consider living there.

  44. Fletch: the only reason there needs to be certain rights bestowed is because people already have come to expect it. It would be difficult to take rights away at this point, no?

  45. Paul –

    When I was in the military I so enjoyed earning my rank and the money that came with it only to see guys 3 ranks below make the same because they had 4 kids.

    I’m not saying you weren’t in the military, but in the Army there are not different pay rates based on number of dependents.

    Married soliders do recieve a housing allowance which differs by geography, but this doesn’t change with number of childern. Also – the money is available to all unmarried soliders with rank of E5 and above.

    Unmarried soliders under E5 either live in the barracks, or pay for any off base housing costs without the housing allowance.

  46. I was in the US Navy from 1986 to 2006

    Here is some pics from then from a friends web site.

    http://gregoid.com/paul/

    E1 to E4 is three pay grades.

    I made E-5 and got out.

    You are correct on this count
    Like BAQ, BAH distinguishes between with-dependents and without-dependents, but not the number of dependents. BAH rates are computed as whole dollar amounts, rounding to the nearest dollar.

    But with taxes it matters like everyone else.

    And, if you pay child support payments that also matters.

    So yes there is a pay difference.

    To be fair I recieved “Sea Pay”
    were E-3 and below did not.

    My point was that it is social engineering based on my status of marriage.

  47. The NY Court addressed the analogy with race, as per Loving. It addressed the state interest in haivng a preferential status for marriage in the first place. Did the commentators bother to read the majority opinion? Maybe read the minority opinion for repetition of the SSM argumentation, as well. Then, here, discuss the substance of the opinions.

    Meanwhile, in his original post above, Nick raised a point that is worthy for discussion.

    Nick, if the wait is for something that is supposed to be inevitable, you may have a good reason to be sympathetic, however, enactment of SSM, as if it was marriage, is far from inevitable. And there are good reasons on either side of the matter. The wait is to play this out with reasoned discourse in the public square, rather than whispers into the ears of legislating judges. There argument over the FMA will become an argument over good governance, which is also reason to wait rather than leap to some hoped-for foregone conclusion that may never see the light of day.

  48. I didn’t stay in long enough to make E5, but for 6 months once when a unit I was was closing and we had no real work (MOS related jobs) – I involuntarily worked in the office with the company commander – so did paperwork for adding rations and housing allowances and the like.

    To be fair though – while federal taxation and spousal privledge laws are obviously the result of social engineering – I understand base housing allowance to be equivalent to the amount they pay to house you in the barracks.

    Same thing with the ration allowance – it’s exactly the cost of 3 meals a day at the on base cafeterias for the month. IE the amount paid out was lower in February than Janurary.

    The idea being if you live off base, they will pay the portion of housing and food they would otherwise pay for the living quarters and free meals on base.

    They just prefer E4 and lower to be under closer suprevision so they don’t necessarily (I think this constraint can be gotten around with appropriate approval) extend the payments to that population.

  49. Well living on a ship, wich you must do in home port every 3 or 4 days no matter if your married or not, wears on you. I found it was better in my 5th year to live off base. I once came back from liberty and was forced to do work because I was “there”. I notice they didn’t call in married guys to do it. That was the proverbial straw for me.

    I am getting married for the first time this September. So Im not ant-marriage or anything.

  50. I must make a correction I did not mean 2006 as my leave date. 20 years and just an e-5 would have been very bad 😉

    I left in 1992. 6 years

  51. I usually just lurk, but this time I felt the need to put in my 2 cents. The way marriages/divorces work now, is that they are a contract. As such, consenting adults are able to enter into said contract. If we look at “marriage” that way, there is no such thing as homosexual or heterosexual “marriage.” It is strictly an agreement to share assets and liabilities, enforcable by the gov’t. If you choose to involve a religion, then by all means, have at it, and follow their rules. Just don’t go bitchin’ to the courts when things don’t go your way. For those of us that choose to view “marriage” as nothing more than the businees deal that it is, things will be much easier. But then, I am currently not married, and everyone at work tells me that I am too much of a judgmental prick to ever get married, so what do I know.

    Nick

  52. As a second point about the contract, doesn’t that pretty much eliminate the “marry my dog” or “marry a minor” arguments since one can not enter into a contract with an animal or minor anyway? As far a multiple marriages, if some dumbass wants to enter into multiple contracts and be held liable for all joint liabilities, I say let that person get screwed.

    Nick M.

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