# 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:** 3
**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, 1:44pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/41 "2006-07-07T13:44:29Z")
[QUOTE=Happy Scrappy Hero Pup] The Court made the correct decision; it does not have the power to do the right thing. [/QUOTE] Well said. Exactly correct. ---
**Author:** ![tdn](https://avatars.discourse-cdn.com/v4/letter/t/94ad74/32.png) [@tdn](https://boards.straightdope.com/u/tdn)\ **Post date:** [July 7, 2006, 2:31pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/42 "2006-07-07T14:31:11Z")
[QUOTE=DMC] 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. [/QUOTE] Would you settle for an anecdote? Bobby and Brandon grew up in a rough household. The father was too sick to take care of the kids, and the mother was too busy with a drug habit. Neglect was the rule of the day. We’re not sure, but we think that Bobby witnessed one of his brothers burn to death in a house fire. The happy couple has had something like a dozen children, and the state has taken away _every single one_ of them. The place was an abuse factory. Bothe Bobby and Brandon were placed in foster care. Within a month, Bobby had turned a corner. He is far more functional than he was in his past life, although he’s still living with some ghosts. His foster mom adopted him last Halloween. She is going to adopt Brandon at the end of this month. Both Bobby “Bobcat” and Brandon “The Cupcake” are finally in a loving, functional household. Their new mom is not only gay, but single. (Although she recently hooked up with another gay adopter.) Yes, it’s only an anecdote, but I shudder to think that most Americans wouldn’t hesitate to yank those kids from “that filthy pervert” and give them back to their natural “normal” parents. For the sake of the kids, mind you. Who would probably end up dead within a year. ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [July 7, 2006, 2:53pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/43 "2006-07-07T14:53:39Z")
I’m reading through the decision that **John Mace** provided (thanks), and i’m having a little trouble with it. Could someone walk me through the Due Process section, specifically the discussion of same-sex marriage being/not being a fundamental right? I don’t think I understand their argument. ---
**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, 3:13pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/44 "2006-07-07T15:13:41Z")
[QUOTE=Revenant Threshold] I’m reading through the decision that **John Mace** provided (thanks), and i’m having a little trouble with it. Could someone walk me through the Due Process section, specifically the discussion of same-sex marriage being/not being a fundamental right? I don’t think I understand their argument. [/QUOTE] The discussion thus far in this thread has centered on the equal protection argument. Due process claims (in federal court) are handled a bit differently. In deciding the constitutionality of legislation under the Due Process Clause, courts examine if the law in question restricts the exercise of a fundamental right. What is a “fundamental right?” A _fundamental right_, FOR PURPOSES OF DUE PRROCESS ANALYSIS, is one that is **objectively** “deeply rooted in this Nation’s history and tradition,” (Moore v. East Cleveland), and “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” (Palko v. Connecticut). The New York Court of Appeals said: > [@](#): > > The right to marry is unquestionably a > fundamental right (Loving, 388 US at 12; Zablocki v Redhail, 434 US 374, 384 [1978]; Cooper, 49 NY2d at 79). The right to marry someone of the same sex, however, is not “deeply rooted”; it has not even been asserted until relatively recent times. If no fundamental right is implicated, legislation is valid under the Due Process Clause if it is rationally related to a legitimate government goal. Does that help? ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [July 7, 2006, 3:23pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/45 "2006-07-07T15:23:30Z")
[QUOTE=Bricker] Does that help? [/QUOTE] Yes, thank you. I do have a further question, though; for something to be a fundamental right it must be “deeply rooted in this Nation’s history and tradition”. If, as in this case, this is interpreted such that same-sex marriage is not recognized by the state, how can it ever become “deeply rooted”? It seems like a circular argument; it must be deeply rooted in history and tradition to be recognized, but it has to be recognized in order to be deeply rooted in history and tradition. Am I missing something? ---
**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, 3:28pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/46 "2006-07-07T15:28:17Z")
[QUOTE=Revenant Threshold] Yes, thank you. I do have a further question, though; for something to be a fundamental right it must be “deeply rooted in this Nation’s history and tradition”. If, as in this case, this is interpreted such that same-sex marriage is not recognized by the state, how can it ever become “deeply rooted”? It seems like a circular argument; it must be deeply rooted in history and tradition to be recognized, but it has to be recognized in order to be deeply rooted in history and tradition. Am I missing something? [/QUOTE] That’s quite a catch, that Catch-22, isn’t it?! ---
**Author:** ![tdn](https://avatars.discourse-cdn.com/v4/letter/t/94ad74/32.png) [@tdn](https://boards.straightdope.com/u/tdn)\ **Post date:** [July 7, 2006, 3:40pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/47 "2006-07-07T15:40:31Z")
[QUOTE=Revenant Threshold] Yes, thank you. I do have a further question, though; for something to be a fundamental right it must be “deeply rooted in this Nation’s history and tradition”. If, as in this case, this is interpreted such that same-sex marriage is not recognized by the state, how can it ever become “deeply rooted”? [/QUOTE] Yeah, it seems that rights for minorities should never have come to pass, as they were never deeply rooted before then. Of course, one could argue that the rights of people were deeply rooted, and that civil rights just extended them to blacks. But then the argument against gay marriage falls apart as well. ---
**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, 3:45pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/48 "2006-07-07T15:45:04Z")
[QUOTE=DMC] 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. [/quote] I never said it was cut and dry, although the “rational basis test” comes pretty close to that. The majority could have decided to elevate sexual orientation to a higher level of scurtiny, but that would have set a new precedent so the court was not compelled to do so. > [@Pup](#): > > 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. That’s what I thought. I was just confused by your original post where you seemed to be saying that it was the will of the people and that the legislatured failed to act accordingly: > [@Pup](#): > > How about “Fuck the Legislature for Not Reflecting the Will of the People?” ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [July 7, 2006, 3:55pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/49 "2006-07-07T15:55:06Z")
> [@](#): > > A fundamental right, FOR PURPOSES OF DUE PRROCESS ANALYSIS, is one that is objectively “deeply rooted in this Nation’s history and tradition,” (Moore v. East Cleveland), and “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” (Palko v. Connecticut). I find it ironic the court would reference Loving. Who is the court to say that we must draw our “fundamental right” to marry at exactly two persons of different gender but of any race? After all, for hundreds of years, people of different races still had the “fundamental right” to marry anyone they wanted, as long as it was their own race. Just like homosexuals today have the same “right” to marry anyone of the opposite sex as their heterosexual cohorts do. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 7, 2006, 3:56pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/50 "2006-07-07T15:56:11Z")
[QUOTE=Bricker] If no fundamental right is implicated, legislation is valid under the Due Process Clause if it is rationally related to a legitimate government goal. [/QUOTE] Which is exactly the same place that Equal Protection gets you. Yet the lack of a “legitimate government goal” for such discrimination is overlooked by the NYSC despite the _Romer_ ruling that there is none. The human power of rationalization is one of the strongest in the universe, it seems. ---
**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, 4:16pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/51 "2006-07-07T16:16:29Z")
[QUOTE=John Mace] OK. I won’t bother next time. I thought you were asking a serious question. [/QUOTE] I was. You didn’t answer it. I’m aware that the federal constitution prohibits sexual discrimination. I was asking about the _New York_ constitution. ---
**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, 4:28pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/52 "2006-07-07T16:28:29Z")
[QUOTE=Revenant Threshold] Yes, thank you. I do have a further question, though; for something to be a fundamental right it must be “deeply rooted in this Nation’s history and tradition”. If, as in this case, this is interpreted such that same-sex marriage is not recognized by the state, how can it ever become “deeply rooted”? It seems like a circular argument; it must be deeply rooted in history and tradition to be recognized, but it has to be recognized in order to be deeply rooted in history and tradition. Am I missing something? [/QUOTE] A right is deeply rooted when it’s permitted for years and years and then a law is passed forbidding it. There’s no circular argument here – the analysis is meant to stop the government from forbidding something that has long been recognized as permitted. A law prohibiting holding hands in public would likely fall to this test, because any court would find that the freedom to go down the sidewalk hand-in-hand is something that has always been permitted, and to forbid it now treads on that longstanding tradition and history. They can make this finding even though no law was ever passed explicitly permitting people to hold hands in public. ---
**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, 4:36pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/53 "2006-07-07T16:36:00Z")
[QUOTE=Revenant Threshold] Yes, thank you. I do have a further question, though; for something to be a fundamental right it must be “deeply rooted in this Nation’s history and tradition”. If, as in this case, this is interpreted such that same-sex marriage is not recognized by the state, how can it ever become “deeply rooted”? It seems like a circular argument; it must be deeply rooted in history and tradition to be recognized, but it has to be recognized in order to be deeply rooted in history and tradition. Am I missing something? [/QUOTE] I should have said this first: There’s no circular argument here because you’re mixing the roles of the legislature and the courts. The legislature doesn’t need to find that anything is “deeply rooted” to pass a law permitting it. To get something recognized by the legislature, it just needs to get the votes. The courts will invalidate a government attempt to prohibit something that is deeply rooted in tradition and history, but there’s no Catch-22: if something IS deeply rooted, it will be because the legislature never before prohibited it. Something that’s NEVER been explicitly permitted in law can’t suddenly become permitted by being recognized as “deeply rooted.” ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [July 7, 2006, 4:39pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/54 "2006-07-07T16:39:07Z")
[QUOTE=Bricker] A right is deeply rooted when it’s permitted for years and years and then a law is passed forbidding it. There’s no circular argument here – the analysis is meant to stop the government from forbidding something that has long been recognized as permitted. A law prohibiting holding hands in public would likely fall to this test, because any court would find that the freedom to go down the sidewalk hand-in-hand is something that has always been permitted, and to forbid it now treads on that longstanding tradition and history. They can make this finding even though no law was ever passed explicitly permitting people to hold hands in public. [/QUOTE] Ah, got it. So essentially it’s a test for a (new) law forbidding a previously accepted activity (although not in law), not for accepting a new law lifting a prohibition. So essentially it’s meaningless in this case? ---
**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, 4:40pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/55 "2006-07-07T16:40:34Z")
[QUOTE=tdn] Yeah, it seems that rights for minorities should never have come to pass, as they were never deeply rooted before then. Of course, one could argue that the rights of people were deeply rooted, and that civil rights just extended them to blacks. But then the argument against gay marriage falls apart as well. [/QUOTE] The rights of minorities are usually analyzed under Equal Protection, not Due Process. ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [July 7, 2006, 4:49pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/56 "2006-07-07T16:49:26Z")
From Andrew Sullivan (long-time proponent of gay marriage): > [@](#): > > In some ways, I think the New York Court of Appeals decision will help, rather than hurt, the cause of marriage equality in the long run. Why? Because it will force the issue into legislatures, where it is best tackled, and where we will eventually win, and in one case, California, have already won. The courts have already done their job - in forcing this issue into the national consciousness, highlighting the grave injustice, correcting it in one state out of fifty, and allowing us to make such great headway in persuading people of our cause. > > The basic argument made by the New York court is also not inherently damaging to the gay case. It’s simply saying that the law is not on its face irrational (although it’s deeply unpersuasive), and so the issue is for the legislature, not the court. What the New York court is essentially saying is: you have a case. You just made it to the wrong guys. Talk to the legislature. > > The court surely has a point. And this is how these decisions can actually be a boon to the marriage cause. They may help galvanize a broader gay and straight effort to make the case democratically, rather than legally and constitutionally. Since our arguments are so strong, why would we leery of this? We have already made huge strides. We’ve seen dramatic polling drops in opposition to marriage for gay people in the last couple of years. The FMA has withered on the vine. We have civil marriage in one state, Massachusetts. That’s a Big Deal. If someone had asked me seventeen years ago, when I helped pioneer this argument, if I thought that by 2006 I’d be engaged and planning a legal wedding in America, I would have wondered what they were smoking. But next year, I’ll tie the knot - as thousands already have, in America and across the globe. In California, the legislature has already voted for civil marriage, and shows no sign of going back. These state court decisions, moroever, undermine even further the case for a federal amendment and reveal the extremism and un-conservatism of its backers. > > I’ve long believed that as long as we can stop the FMA, we need only make our case as best we can, person by person, state by state, and wait for the younger, mellower generation to gain power. That’s happening faster than I ever imagined - and the impatience of some gay activists is morally defensible but pragmatically excessive. Chill. We now have a chance to make our case where it is best made: in the legislatures and in the court of public opinion. In my view, the court strategy, defensible in theory, noble in intent, was fast becoming over-reach in practice. The New York case may have done gay people a favor in that respect. We have the better arguments. Let’s make them - to the people and their elected representatives, and we’ll win in the end. ---
**Author:** ![JustAnotherGeek](https://avatars.discourse-cdn.com/v4/letter/j/58f4c7/32.png) [@JustAnotherGeek](https://boards.straightdope.com/u/JustAnotherGeek)\ **Post date:** [July 7, 2006, 5:05pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/57 "2006-07-07T17:05:48Z")
[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) [/QUOTE] Thanks for the link. I couldn’t find it yesterday. Having given the consenting and dissenting arguements a quick read (yes, I admit right off of the bat that I haven’t read every single word), it simply sounds to me that the majority view was more swayed by precedent cases (i.e. a lack of cases _specifically_ dealing with SSM) than by the arguments. I read several times that cases presented by the plantiffs were dismissed because they did not apply _directly_ to SSM. However, the dissenting view believed that there was a similarity between this case and the presented ones. Quite simply, it does seem to me that one of the main reasons for a difference in opinion had to do only with the fact that the plantiffs were gay. The majority defined the questions for scrutiny narrowly. Why they did that is certainly something for debate, and not something I feel I have any facts that would allow me to make a decision on their reasoning. ISTM that the question this court case raises is whether SSM needs a _new_ law to make it legal or do the _current_ laws (as modified by anti-discrimination amendments) already make it legal. I would make the argument that, if current political types are trying to pass an amendment to prohibit SSM, SSM must already be legal and protected by legislature, but the implimentation is not being applied correctly. ---
**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, 5:35pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/58 "2006-07-07T17:35:07Z")
[QUOTE=Revenant Threshold] Ah, got it. So essentially it’s a test for a (new) law forbidding a previously accepted activity (although not in law), not for accepting a new law lifting a prohibition. So essentially it’s meaningless in this case? [/QUOTE] Yes… ---
**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, 5:42pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/59 "2006-07-07T17:42:14Z")
[QUOTE=JustAnotherGeek] ISTM that the question this court case raises is whether SSM needs a _new_ law to make it legal or do the _current_ laws (as modified by anti-discrimination amendments) already make it legal. I would make the argument that, if current political types are trying to pass an amendment to prohibit SSM, SSM must already be legal and protected by legislature, but the implimentation is not being applied correctly. [/QUOTE] No. The federal marriage amendment would stop a court from deciding a constitution required SSM. You cannot infer that “SSM must already be legal” based on an effort to pass the amendment. ---
**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, 5:46pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/60 "2006-07-07T17:46:54Z")
[QUOTE=Bricker] No. The federal marriage amendment would stop a court from deciding a constitution required SSM. You cannot infer that “SSM must already be legal” based on an effort to pass the amendment. [/QUOTE] Any idea what would happen if the FMA passed, and then a state ammended its constitution to specifically allow SSM? Would the FMA prohibit interpreting “Gays are allowed to marry,” as meaning “Gays are allowed to marry”? [Previous page](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411.md?page=2) [Next page](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411.md?page=4)