# Yeah, fuck you too, NY Court of Appeals **URL:** \ **Category:** The BBQ Pit\ **Created:** [July 6, 2006, 8:13pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411 "2006-07-06T20:13:06Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 7, 2006, 1:49am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/21 "2006-07-07T01:49:47Z")
[QUOTE=Happy Scrappy Hero Pup] How about “Fuck the Legislature for Not Reflecting the Will of the People?” [/QUOTE] I’m confused by that. If it’s the will of the people in NY to leglize SSM, what’s stopping the legislature from acting? Or, doesn’t NY have a ballot iniative process? I’d be hesitant to go by public opinoin polls on something like this, if that’s what’s you mean. If you do, can we seee the data? ---
**Author:** ![cerberus](https://avatars.discourse-cdn.com/v4/letter/c/71e660/32.png) [@cerberus](https://boards.straightdope.com/u/cerberus)\ **Post date:** [July 7, 2006, 1:57am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/22 "2006-07-07T01:57:07Z")
It is generally not the function of the courts to legislate. Executive Branch Functions: Run shit, advance initiatives, suggest legislation, enact and implement legislation, nominate judges, …, enforce and prosecute existing laws, civil and criminal. Judicial Branch Functions: Interpret laws in light of the constitution, conduct trials (civil and criminal), rule on the constitutionality of laws in light of the constitution. \*\*\*The executive and judicial branches generally prepare budget proposals, but such proposals must be initiatied by legislators within the legislature. Legislative Branch Functions: Prepare and consider legislation: budgets, laws (civil and criminal, tax codes). In some cases approve of executive and judicial appointments (advice and consent). It is not the job of the judiciary to _impute legislation_, but to interpret existing legislation and to consider the constitutionality of legislation. Separation of Powers, Checks’N’Balances, it’s a good thing. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 7, 2006, 2:15am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/23 "2006-07-07T02:15:57Z")
[QUOTE=Otto] Not having read the state constitution, I can only assume that there’s some sort of equal protection clause in it. How this can’t be an equal protection violation is beyond my poor powers to comprehend. And the court said in its opinion that regardless of how the laws of the state happen to read, it would invalidate a SSM ban if it were convinced that it was based in nothing but bigotry. Well, it is based in nothing but bigotry and the court didn’t invalidate it. [/QUOTE] Yes, it has one in it. [QUOTE= relevant portion of NY Constitution] No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state. [/QUOTE] [QUOTE=John Mace] Well, I certainly agree that there is no evidence that gay parents are any worse than straight parents, but it doesn’t seem unreasonable to say that, all things being equal, kids are better off with two opposite sex parents. That would seem to the be the default assumption, and I’d have to see some real proof before I accept that the opposite is true. But I haven’t read virtually every study done on the subject, and I’m not saying your wrong, I’m just saying I haven’t seen the data myself-- and I doubt the court has, either. [/QUOTE] Of course, since it’s perfectly legal for a single female to have as many kids as she wants, and it’s even completely legal for a single person to adopt in the state of New York, it’s a specious argument at best. I’m hoping someone comes out of the woodwork to claim that single mothers or single fathers are better than two of each, but I won’t hold my breath. Do you sincerely believe that there is anything other than bigotry holding back SSM? ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 7, 2006, 2:18am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/24 "2006-07-07T02:18:45Z")
[QUOTE=cerberus] It is not the job of the judiciary to _impute legislation_, but to interpret existing legislation and to consider the constitutionality of legislation. [/QUOTE] By my reading of their constitution, I think the court interpreted incorrectly. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 7, 2006, 3:51am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/25 "2006-07-07T03:51:30Z")
[QUOTE=DMC] Of course, since it’s perfectly legal for a single female to have as many kids as she wants, and it’s even completely legal for a single person to adopt in the state of New York, it’s a specious argument at best. I’m hoping someone comes out of the woodwork to claim that single mothers or single fathers are better than two of each, but I won’t hold my breath. Do you sincerely believe that there is anything other than bigotry holding back SSM? [/QUOTE] Your post shows that you simply don’t know what a rational basis test is. You can lead a horse to water, but you can’t make it drink… ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 7, 2006, 4:16am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/26 "2006-07-07T04:16:39Z")
[QUOTE=John Mace] Your post shows that you simply don’t know what a rational basis test is. You can lead a horse to water, but you can’t make it drink… [/QUOTE] Actually I do, not that it makes any difference at all to me. Feel free to enlighten me as to what legitimate end the legislature is trying to reach through rational means. It seems to me that legislation that goes against the equal protection clause would be considered a threat to a fundamental right, and therefore require increased scrutiny. Of course, I don’t consider government sanctioned bigotry to be a legitimate end, so what do I know. Now that we’re done with the Bricker-mode of debating (or if we’re not, I guess we can rehash it again for the 20th time), let me state for the record that I don’t give a flying fuck about the various levels of scrutiny where this is concerned. The words “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.” actually mean something, no matter what various parties would like for us to believe. Feel free to tell me where my interpretation of the actual words is incorrect, but to me they mean that not allowing a gay person to marry the partner of their choosing, while allowing me to marry the partner of my choice, is discriminatory. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [July 7, 2006, 4:33am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/27 "2006-07-07T04:33:20Z")
What’s odd is that although NYS doesn’t allow same-sex couples to get married within it’s borders it still recognizes same-sex marriages performed _outside_ it’s borders. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 7, 2006, 4:56am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/28 "2006-07-07T04:56:16Z")
[QUOTE=DMC] Actually I do, not that it makes any difference at all to me. [/QUOTE] If you’re going to stick your fingers in your ears, then I see no rational basis (in the vernacular sense) of continuing the discussion with you. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [July 7, 2006, 4:56am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/29 "2006-07-07T04:56:39Z")
> [@NYS Constitution](#): > > No person shall be denied the equal protection of the laws of this > state or any subdivision thereof. No person shall, because of race, color, > creed or religion, be subjected to any discrimination in his or her civil > rights by any other person or by any firm, corporation, or institution, or > by the state or any agency or subdivision of the state. As much as I hate to say it, I don’t see anything about sexual orientation in there. (Heck, I don’t see anything about sex in there, period. Is there a different section that covers women’s rights, or is sexism legal under the constitution of New York?) Needless to say, it _should_ include gays, but it doesn’t look like it actually _does_. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 7, 2006, 4:59am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/30 "2006-07-07T04:59:57Z")
[QUOTE=Miller] As much as I hate to say it, I don’t see anything about sexual orientation in there. (Heck, I don’t see anything about sex in there, period. Is there a different section that covers women’s rights, or is sexism legal under the constitution of New York?) Needless to say, it _should_ include gays, but it doesn’t look like it actually _does_. [/QUOTE] “Sexism” is covered by numerous SCOTUS precedents regardless of what the NY state constitution says, and regardless of what any NY court says as well. IIRC, gender discrimination normally gets intermediate level scrutiny. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [July 7, 2006, 5:11am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/31 "2006-07-07T05:11:02Z")
[QUOTE=John Mace] “Sexism” is covered by numerous SCOTUS precedents regardless of what the NY state constitution says, and regardless of what any NY court says as well. [/QUOTE] Gee, thanks for clearing that up, **John**. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 7, 2006, 5:54am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/32 "2006-07-07T05:54:59Z")
[QUOTE=John Mace] Your post shows that you simply don’t know what a rational basis test is. You can lead a horse to water, but you can’t make it drink… [/QUOTE] And you can lead a horticulture, but you can’t make her think. What’s your point? Regardless of whether you’re talking legal or vernacular definition of “rational,” nothing I’ve seen that the court put forth is a rational reason for denying same-sex couples access to marriage. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 7, 2006, 6:09am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/33 "2006-07-07T06:09:04Z")
[QUOTE=Miller] Gee, thanks for clearing that up, **John**. [/QUOTE] OK. I won’t bother next time. I thought you were asking a serious question. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 7, 2006, 6:44am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/34 "2006-07-07T06:44:34Z")
[Here’s the decision (in PDF format) for anyone interested in reading it.](http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf) It appears the majoirty found the results of the social science studies at best inconclusive wrt to the argument about children growing up in same-sex vs opposite-sex families . Regarding what future generations will think of this ruling, the majority states: “The dissenters assert confidently that ‘future generations’ will agree with their view of this case… 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.” ---
**Author:** ![Tuckerfan](https://avatars.discourse-cdn.com/v4/letter/t/eada6e/32.png) [@Tuckerfan](https://boards.straightdope.com/u/Tuckerfan)\ **Post date:** [July 7, 2006, 7:52am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/35 "2006-07-07T07:52:01Z")
You know, it’d be nice if we could allow gays to get married so that we could deal with more important problems in society. **No** rational person has been able to demonstrate that there’s anything harmful in allowing gay couples to be married, while the evidence that things like terrorism, pollution, disease, etc., etc., etc, are harmful is fucking **overwhelming.** The _only_ way this issue is going to recede from the front pages is if we allow gays to get married, so let’s do it and be done with it, damn it! And hell, just for kicks, let’s word it as vaguely as Canada does, so that even **straight** same sex couples can get married for the tax dodge! 😃 ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 7, 2006, 9:36am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/36 "2006-07-07T09:36:08Z")
[QUOTE=Otto] And you can lead a horticulture, but you can’t make her think. What’s your point? Regardless of whether you’re talking legal or vernacular definition of “rational,” nothing I’ve seen that the court put forth is a rational reason for denying same-sex couples access to marriage. [/QUOTE] Here’s the problem, **Otto**. The so-called “rational basis” test is kind of like the Physics 101 exam for star athletes: nearly impossible to flunk. It does not require that there be a good reason for the discrimination written into the law, merely that the legislature not have been completely out to lunch in its purpose in writing the law in the first place. It doesn’t have to be the best reason for the law, it doesn’t have to be a good reason for the law, all it has to be is something tying the law loosely to something the courts agree is a legitimate government purpose. The idea is, the courts defer to the legislature’s understanding of what the state needs and how best to accomplish it, to the extent possible. On the other hand, the entire point to _Romer v. Evans_ is that a law explicitly written for _no other purpose_ than to discriminate against gay people fails the “rational basis” test. I have flagged this point a couple of times, as it seems a far better ground for proceeding in the courts than attempting to move sexual orientation to a stricter scrutiny or attempting to overturn the scrutiny levels jurisprudence in relation to equal protection controversies. Final point, to anyone who feels so inclined: The old “black civil rights equals gay rights” arguments have been fought back and forth many times here and elsewhere. But I’m curious how many of the people who are insisting “legislatures not courts” would have stood with the Mississippi state legislature in 1961. Because, bluntly, while I do understand your premise, the parallel seems too strong. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 7, 2006, 10:00am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/37 "2006-07-07T10:00:24Z")
[QUOTE=John Mace] If you’re going to stick your fingers in your ears, then I see no rational basis (in the vernacular sense) of continuing the discussion with you. [/QUOTE] I’m doing no such thing. If the issue was as cut and dried as you seem to think it is, then all decisions of this nature would be unanimous ones. It’s not. They aren’t. Hell, if the various scrutiny levels were universally agreed upon as to when to apply which level to what classification, and when and whether to give “bite” to the rational basis test (or even move sexual orientation up to a higher level of scrutiny), we wouldn’t need the courts at all. We could just make Scalia an appointed overseer of the legislative branch, where he could spank down anything that didn’t pass constitutional muster from on high. Scary stuff. ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [July 7, 2006, 10:52am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/38 "2006-07-07T10:52:40Z")
[QUOTE=John Mace] [Here’s the decision (in PDF format) for anyone interested in reading it.](http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf) It appears the majoirty found the results of the social science studies at best inconclusive wrt to the argument about children growing up in same-sex vs opposite-sex families . Regarding what future generations will think of this ruling, the majority states: “The dissenters assert confidently that ‘future generations’ will agree with their view of this case… 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.” [/QUOTE] But this kind of (erroneous) thinking only “protects” children of homosexuals; not children growing up in countless heterosexual shitty situations. So it really isn’t about the kids, is it? It’s a smoke screen for the homophobes to get their way. I don’t know why they don’t just look at it “rationally” and see that it does no harm to the individual, the family or the nation. It’s really very simple. I see no reason to slap all the legalese bullshit onto it. It’s a non-issue. Or at least it should be. ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [July 7, 2006, 1:02pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/39 "2006-07-07T13:02:24Z")
**Otto,** the Court, by its function, did not shit on gay people. Deplorable as that may be, sexual orientation, marital status, and gender (gender identity, etc.) are not protected classes. So the Court, limited in its powers to interpretation, did the only thing that it could. Don’t think that this means I disagree with you about marriage. I share **Bricker’s** sentiment that there ought to be a secular equivalent to the religious ceremony, and that “marriage” is so firmly ensconced in the popular lexicon that it is no longer possible to separate the secular meaning from it, so it’s as good a term as any. **John Mace** the answer to your question is that, since the Legislature has not acted, the recognition of gay marriage is currently _not_ the will of the people. Is the will of the people always the right thing? Certainly not. But that’s the cut-and-dried answer to your question. The Court made the correct decision; it does not have the power to do the right thing. That’s the long and short of a shitty situation. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 7, 2006, 1:36pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/40 "2006-07-07T13:36:43Z")
[QUOTE=DMC] Now that we’re done with the Bricker-mode of debating (or if we’re not, I guess we can rehash it again for the 20th time), let me state for the record that I don’t give a flying fuck about the various levels of scrutiny where this is concerned. The words “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.” actually mean something, no matter what various parties would like for us to believe. [/QUOTE] Who decides what they mean? You’ve advanced your idea of what they mean, but you are not in a position where your interpretation is accorded weight in New York. The highest court in New York, on the otrher hand, is the final arbiter of what New York’s state constitution means. Just as the highest court in Massachusetts decided that their state’s constitution forbid the restriction of marriage to opposite sex couples, so, too, the New York highest court has reached the opposite conclusion. That definitively settles the issue. In New York, that’s NOT what the words mean. [Previous page](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411.md?page=1) [Next page](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411.md?page=3)