In the opinion (scroll down for pdf link) issued by the NY AG’s office on same-sex marriage (and in other opinions throughout the various battles on the issue) there is quite a bit of reliance on the existence of references to “bride” and “groom” and “husband” and “wife” in the statute, even though, in the case of New York, there is no gender reference in the section of the statute that sets out the qualifications for marriage or in the section that discusses void or voidable marraiges.
I can’t speak for NY law but in Wisconsin it’s settled law that gender/sex references in statutes are to be read as gender-neutral. IOW, if a statute defining a crime includes “he” women are not exempt from the reach of the statute. So, assuming that’s the case in NY (and if that’s not the case in NY please advise), why would references to “bride” and “groom” not be read as gender-neutral in light of the absence of gender-specificity in the law defining the parties to marriage?
Well, the biggest problem with that argument is that the terms are not gender-neutral. Check any dictionary. Check the etomology of “bride” and “bridegroom.” They are very gender-specific.
Please read the OP carefully. According to the OP, it is Wisconsin law that gender-specific references are to be treated as if they weregender neutral. If that is true then it makes your comment irrelevant.
I highly doubt that it’s as settled as that in Wisconsin law.
Sure, sex specific language will be made sex neutral in the case you mentioned. But in marriage and divorce law, when terms like mother, father, husband, wife, bride, and groom are used, the sex of the individuals involved is quite clear, and the intent of the framers of the law is clear also.
I do not know what the exact text of the marriage statutes is in either New York or Wisconsin. Suffice to say, both statutes were written with the intent that the franchise be used by heterosexual couples only. I think we can all agree on that point.
Yeah, and if you removed one t from your username, and added an m, you’d be me.
IANAL, but you’ve cited a statute with so many exceptions, that a real lawyer or legislator could really tie it up.
And that final one you cited, clearly delineating “husband” and “wife” is a doozey. That clause is as clear as a bell.
And that breezey “if that were removed from Wisconsin law” is just tossed out there as if that could be done with no opposition. The most liberal states in the Union, when put to a vote, have overwhelmingly opposed same-sex marriage.
If you read the opinion in Goodridge v. Dept. of Public Health, you will see that the Supreme Judicial Court in Massachusetts dismissed the argument that the term “marriage” was able to be read as “gender neutral.” Common law defines it as being between a man and a woman. Thus, despite the fact that nothing in Massachusetts’ statutes defined marriage as being between two people of different sex, the Court was unable to say as a matter of law that “marriage” was able to be contracted between people of the same sex, without redefining the common law. This is what the Court then proceded to do, in order to conform common law principles with the Constitution of the state.
Nor am I convinced that the statute quoted by Otto requires that the terms “husband” and “wife” be replaced. The statute regarding gender references specifically exempts cases where the statute applies to only one sex, and I would consider this to mean that the statute intentionally uses a gender specific term, rather than using a gender specific term where the intent of the legislature is to have the term apply to both sexes. Thus, if a statute reads, “It shall be unlawful for a father to beat his child,” the term “father” will have substituted for it the term “parent,” absent some clear intent by the legislature to exclude beatings by mothers from the effect of the statute.
In short, the purpose of the Bureau is not to change the law, but to make sure that the law reflects the actual intent of the Legislature. Where, as in the marriage statute, the Legislature clearly intended to use gender specific terms, the Bureau would be precluded from changing the terms. And even if it did, you’ll notice that such a change would “have no substantive effect.”
Otto was nice enough to make the point I was clumsily trying to make in my first post.
“except where the statute clearly applies to one sex only”
The courts have repeatedly upheld different treatment under the law for different sexes provided that 1) the laws in question are intended to serve an “important governmental objective,” and 2) they are “substantially related” to achieving that goal. Marriage laws meet both these conditions.
Understand, I fully support the equal rights of gays, and think they should be allowed to marry if they so wish. But Otto’s arguments here are wrong.
If I may remind the panel that the OP was a question about New York state law?
What I said was settled in WI law was that pronouns are to be read as gender neutral (or gender inclusive, I suppose). I didn’t claim that 13.93 demands the replacement of “husband” and “wife” in 765.001(2); I wish it did but it clearly doesn’t. I cited 13.93 only in response to Mr Moto’s assertion that he doubted the settled nature of WI law. Nor did I claim that deleting the phrase from 765.0001(2) would be an easy undertaking; but were that phrase to be deleted the only statutory impediment to SSM in Wisconsin would be gone and SSM would be legal.
Now, to scamper back to the OP: the AG’s opinion rests rather heavily on the notion that references to “bride” and “groom” etc. elsewhere in the statute means that the lack of specificity in the eligibility portion of the statute is irrelevant. My question is whether this interpretation is correct. My own lay opinion is that legislative intent ought to take a back seat to the plain language of the statute. Perhaps until such time as the NY court of appeals rules on the question there is no factual answer.
This is probably not related, but in the famous Persons Case in 1927, five women asked the Supreme Court of Canada to rule on whether women could be senators (were “qualified persons” under the British North America Act), the court ruled that they could not.
One of the arguments was that the pronoun “he” was used in the act to refer to senators, therefore senators must be men. :rolleyes:
Two years later, the Judicial Committee of Britain’s Privy Council (at that time, still the court of last resort for Canada) ruled that the Supreme Court’s decision was “a relic of days more barbarous than ours.”
My reading of the AG’s opinion is that both the language of the statute and the legislative intent point to a supposition of heterosexual marriage only.
Here’s a novel idea, Otto. Instead of finding a right to homosexual marriage in statutes written years ago (when, frankly, the idea was considered quite preposterous) why don’t you make a case for it on its merits today?
This approach, admittedly, risks political defeat, but has the advantage of intellectual honesty. Also, you’ll have far fewer people around complaining that the decision was crammed down their throats by interest groups and liberal judges.
I don’t think our country ever got over Roe vs. Wade. Gay marriage, when and if it happens, will make that culture war look like a junior high debate.
Hm. Looks like the Persons Case is more apposite than I thought. Another reason for ruling that women weren’t ‘persons’ was that, since women didn’t tend to participate in politics in 1867, the framers of the BNA act couldn’t have meant to include them :rolleyes:
Ah, yes, reasoned debate 101 at the fore, here, Otto.
When you post a concept, and the opposition rightly takes it to task, you should be able to do better than respond with snide non sequitur remarks.
I pointed out in my post that Massachusetts refused to do as you were suggesting because the concept that marriage is between a man and woman is a part of common law. It is an inherent part of what the statutes mean, and the Supreme Judicial Court of Massachusetts also pointed to the fact that other parts of the Massachusetts law on marriage used terms indicating a union of different sex people supported its conclusion that “marriage” as that term has been used in the statutes meant a union of a man and a woman only. It would appear that the New York AG agrees with this statutory construction when dealing with the law of the state of New York.
Your OP makes the novel claim that
(italics added)
Far from a settled point, your only citation to back this claim up is a law that says something entirely different. Application of the concept embodied in the Wisconsin Revisor of Statutes Bureau to New York law would not change the result of the New York AG. To find that same sex couples can marry will, presumably in all states, absent legislative action, require a determination similar to that made by the Massachusetts Supreme Judicial Court.
Although Attorney General Spitzer did not specifically address the quoted statute, I presume that he would conclue that the references to “bride and groom” and “husband and wife” in the Domestic Relations Law would be a situation where “the sence of the sentence indicates otherwise” so that those terms don’t include same-sex marriage. Ultimately, however, the New York Courts will resolve this situation.
This looks unambiguous, to me. “Wife” (and presumably “husband”) is to be replaced by “spouse”. Thus, the later reference to the marriage law should read “spouse and spouse”, rather than “husband and wife”. The exception noted does not apply here: If the marriage statute “clearly applies to one sex only”, then it’s already condoning homosexual marriage.
Now, I’m far from convinced that this is what the framers of those laws intended. But that’s what the law says.
This is the kind of thing, though, that causes people to have contempt for the law.
The abortion debate, at the time of the Roe vs. Wade decision, was being carried out in state legislatures across America. Regulations were being set as deemed appropriate by the states.
Then the Supreme Court stepped in, and found a right to privacy in the Constitution that isn’t even written there. They justified said right by using ludicrous language like “emanations” and “penumbras”. They imposed a one-size-fits-all abortion regime on the whole country and alienated a large portion of the citizenry from the political process. The impact on the country has been poisonous.
This time around, it’s going to be far worse. Instead on convincing millions of Americans who need convincing that gays and lesbians need the protections afforded by a family structure (for the record, I support civil unions), a different path is being taken. And it depends on using the courts to defy common sense and the English language and declare a woman a husband, and a man a wife.
You can certainly get some empty head in a black robe to issue just such an opinion. But you can’t mandate that the American people respect it. And when respect for the law breaks down, we’re all poorer for it.
DSYoung contributed some useful data on statutory construction that argues against the theory about which Otto is inquiring. But I fail to see any “factual answer” content in your post quoted above – merely your fulmination on the interpretation taken by a majority of the Supreme Court in a vaguely-related manner and your speculation as to the reaction of the American people.
There are elements of “living Constitution interpretation” and of “strict construction interpretation” with which I agree and others with which I disagree. And I’d be pleased to discuss them in Great Debates. But what you’re posting here, while it may be your considered opinion, is in no way fact, except that it may be a fact that you think it. It is therefore about as valuable in GQ as a horse in a formal reception.
