New York Passes Same-Sex Marriage

by John M. Curtis
(310) 204-8700

Copyright June 25, 2011
All Rights Reserved.                                         

        New York State provided a colossal stamp of approval for same-sex marriage, passing the legislature and senate, paving the way for comparable legislation around the country.  While New York is one of the nation’s most liberal states, a similar measure passed the legislature but couldn’t get through the senate in 2007.  “I think that having same-sex marriage in New York will have tremendous moral and political force for the rest of the country—in part because New York is a large state, and in part because it hasn’t come easily,” said Columbia University Law professor Suzanne Goldberg.  Goldberg, of course, can’t speak for more conservative states that aren’t inclined to pass gay marriage.  California continues to battle in the courts the constitutionality of voter-approved Prop 8 banning gay marriage.  When U.S. District Court Judge Vaughn Walker tossed out Prop 8 Aug. 4, 2010, conservatives were outraged.

             With over 42,000 gay or lesbian couples in New York, today’s vote opens the door for unrestricted gay marriages in the Empire State.  While currently six states, including the first Massachusetts, have had gay marriage since 2004, no one knows for sure the fiscal impact.  With New York running a $10 billion budget deficit, it’s difficult to predict the effect on the state’s red ink.  “It becomes less of an experiment the more information we have,” said New York University law professor Arthur Leonard, unsure about the fiscal impact but predicting a nationwide trend.   “New Yorkers tend to move about the country quite a lot,” said Prof. Goldberg.  “High numbers of same-sex couples likely to marry here will increase pressure on other states to treat those couples fairly,”  speculating about the New York law.  Married gay couples in California didn’t prevent the passage of Prop. 8.

             In 2004, the Massachusetts’ High Court ruled that the state’s domestic partnership law violated the U.S. Constitution’s 14th Amendment, specifically, the Equal Protection Clause under the landmark ruling Brown v. Education, barring “separate but equal” treatment.  Massachusetts’ High Court was the first to rule that sexual orientation was a civil right, like race, religion, gender or creed.  Once they included sexual orientation as a civil right, then legalizing same-sex marriage followed inexorable Constitutional law.  New York’s same-sex marriage law is unique because it passed through elected representatives in the legislature.  Conservative frequently criticize judicial activism, where un-elected judges toss out legislation or initiatives, as in California.  Whether the law comes from the legislature or the bench, it’s still the law.  California’s Supreme Court will now most likely uphold the ban on Prop. 8.

             Conservative opponents of gay marriage must face the established precedent of sexual orientation becoming a civil right.  Whatever church one attends, it can’t encroach on what the state must do to uphold Constitutional law.  Churches can continue to ban gays or refuse to conduct gay marriages but the state can’t show the same discrimination.  “We don’t need to intervene, let the political process work through,” said Cornell University law professor Michael Dorf, referring to what judges would do in the future with the issue of gay marriage.  Dorf fails to see the big picture that judges must uphold the Constitution, striking down laws or initiatives that discriminate against homosexuals.  California provides the best example of how “initiatives” or statewide ballot measures must pass the Constitutional test.  No matter how popular, states can’t pass unconstitutional bills or ballot measures.

             New York’s ruling should have some practical impact, reminding opponents of gay marriage that the Constitution is not on their side.  Passionate arguments about the sanctity of marriage have their place in religious institutions but not the public square where the Constitution protects rights of all minorities.  Judges in other states facing questions of gay marriage must side with the Constitution, not local inhabitants whose traditions and moral and ethical views don’t jibe with civil rights’ laws.  Less progressive states than New York might see today’s ruling as outside mainstream American values.  Local jurisdictions have their own values but they must conform to federal standards.  Given the makeup of today’s Supreme Court tilting to the right, it’s doubtful they’d rule to approve gay marriage.  Federal courts and appellate courts continue to interpret and rule on Constitutional law.

             Today’s approval by the New York legislature of same-sex marriage makes it more difficult for opponents to cite the same old moral and historic arguments.  Even with regional differences, U.S. District and Appellate courts must follow established legal precedent recognizing sexual orientation as a civil right.  No religious or moral argument changes established Constitutional law that gives same-sex couples the same protections as other minorities.  “To the extent that the anti-same-sex marriage argument has been that this is radical change and incompatible with the country’s social mores, the fact that the country’s third most populous state had done so shows that it may not be,” said Dorf, an expert in same-sex marriage law.  Whatever regional differences on same-sex marriage, judges and elected officials must put aside time-honored traditions and values and follow the law.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.

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