# 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:** 5
**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, 9:59pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/81 "2006-07-07T21:59:19Z")
The backlash you need to worry about is at the federal level, not at the state level. I agree that those states dead set against SSM have already taken steps to amend their constitutions (or will do so at some point). But a modified\* FMA could very well get thru Congress and the states if there was a federal SC decision mandating SSM, or if there was a rash of state rulings doing the same. What constitutes a “rash of rulings”? Hard to say. MA + NY alone wouldn’t do it, but what if there were 10, 12 or 15 state court rulings and no legislative successes? Better to have a few legislative successes in the states to get the ball rolling. I don’t think those few legislative successes are that far away. CA came very close, and NY may very well do it. \*modified so that states could legalize SSM if they chose to, but it could not be inferredto be legal by the courts. ---
**Author:** ![saoirse](https://avatars.discourse-cdn.com/v4/letter/s/5daacb/32.png) [@saoirse](https://boards.straightdope.com/u/saoirse)\ **Post date:** [July 7, 2006, 10:08pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/82 "2006-07-07T22:08:47Z")
[QUOTE=John Mace] Not too alone, as I agree with that assessment. I’m very intersted to hear from the folks of the great state of NY about this. As some may know, the CA narrowly passed a SSM bill last year, but it was vetoed by Arnold. The bill barely squeaked thru, and most political forecasters had expected it to fail even up to the last minute. I supsect the NY governor would not veto such a bill coming out of the legislature (given his stance on recognition of SSM from other states). What do we actually know about the legislature? In CA the vote was pretty much strickly along party lines (Dems for, Pubs against). [/QUOTE] Pataki will veto it. It sucks to have a Governor deluded enough to think he can be the Republican presidential nominee. Spitzer will sign it. The way the districts are gerrymandered could make it tough in the Senate, but it should make it. This is an election year. ---
**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, 10:14pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/83 "2006-07-07T22:14:19Z")
[QUOTE=saoirse] Pataki will veto it. It sucks to have a Governor deluded enough to think he can be the Republican presidential nominee. [/quote] I can see that being a big impediment, but hasn’t he already “damaged” his career by accepting out of state SSM for state benefits? > [@](#): > > Spitzer will sign it. The way the districts are gerrymandered could make it tough in the Senate, but it should make it. This is an election year. Election year-- is that good or bad in NY? In CA, that was considered a problem that had to be overcome, not an advantage for passage. ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 7, 2006, 11:26pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/84 "2006-07-07T23:26:08Z")
I appreciate the jurisprudence angle of the debate a great deal, and all that has been said above seems complete enough that I have nothing more to offer on that subject of any great value. What I have considered, and it hasn’t been delved into at all here, ever since the SJCoMA decision, is simple, cynical strategy. I suspect in many instances judges carry an element of ideological bias to their decisions which they then back up with arguably sound jurisprudence. It wouldn’t surprise me at all if the majority of the SJCoMA justices who ruled in favor of gay marriage could have argued as well for a decision much like the NY ruling, and chose on that basis a path they felt was more morally sound. The upshot of that decision, however, has been a nearly nationwide backlash against gay marriage which has led to a number of states amending their constitutions to forbid not only gay marriage, but even the granting of _any_ special status to same-sex civil unions. I can only regard, strategically, the MA victory as a national catastrophe for sexual equality. It will likely be a _very_ long time before those states which have constitutionally forbidden same-sex marriage reverse those decisions. Right or wrong, the SJCoMA kicked the stone that started an avalanche of paranoia about “legislating from the bench”. Had the NY decision come first, perhaps some of that paranoia might have been reduced or eliminated. I have to think judges can appreciate these nuances, that at least some of them can simply be pragmatic, and think about what they do in, dare I say it, a political light. How none of this occurred to the SJCoMA, I don’t know. It occurred to me, my earliest posts on the subject attest to this, and things actually turned out worse than I feared they might. The SJCoMA’s decision probably even played a role in getting Bush reelected. I must reluctantly, for reasons that would probably offend anyone here who believes judges rule only out of their respect for a particular judicial philosophy that is neutral to political ideology, express my approval for the NY decision. It removes some of the fear from the reactionaries, and endorses (even perhaps tacitly encourages) a popular referendum on the subject. Only a third of New Yorkers are in favor of barring same-sex marriage, and gays have some powerful and highly visible allies in the Empire State. If the people of NY can coax their legislaive representatives to honor gay marriage, they will have far surpassed the example of MA. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 8, 2006, 4:04am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/85 "2006-07-08T04:04:24Z")
[QUOTE=Bricker] The legislature could rationally find that children are best served with one parent of each sex. You may not agree with the finding; that doesn’t make it impossible for a rational decision-maker to reach that conclusion. [/QUOTE] Until such time as reproducing is made a legal requirement of marriage, any finding that restricts marriage on the basis of what’s supposedly best for children who may never even exist is ridiculous. It may be enough in the minds of bigots to pass the incorrectly-applied rationality test but it’s still goddamn fucking stupid. And I continue to maintain that the court used the wrong test. Marriage discrimination is sex discrimination. > [@Bricker](#): > > Not to answer for John, but a rational reason could be that since there are both men and women in the world, it’s valuable to give kids the opportunity to observe and model one of each in the role of parents. And yet New York allows same-sex couples to adopt each others’ children. And yet New York allows mixed-sex couples who are incapable of or have no intention of having children to marry. And yet single people are allowed to have children in New York and New York married couples with children are allowed to divorce. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 8, 2006, 1:57pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/86 "2006-07-08T13:57:47Z")
[QUOTE=saoirse] It sucks to have a Governor deluded enough to think he can be the Republican presidential nominee. [/QUOTE] As we in Mass. have known for a couple of years - or else we’d be happily accepting marriage license fees for out of state gay couples, too. > [@Bricker](#): > > What killed the Colorado law was the fact that it touched so many different areas that it was impossible for the court to come up with any possible rationale for it other than, “Colorado don’t like gays.” Yet if each of those had been individual laws they’d have been acceptable. Even the one forbidding marriage. Yet the underlying “rational” basis would have been just the same. ---
**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 8, 2006, 6:18pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/87 "2006-07-08T18:18:28Z")
I have another question. If the court found that there was a rational basis for saying that two opposite sex parents are better than two same sex parents, isn’t that a sex discrimination issue? It’s suggesting that in some way a parent of one sex is needed to balance the pros and cons of the other, and so suggests that (and acts as though) a member of one sex _has_ those pros and cons; ergo, sex discrimination. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 8, 2006, 9:20pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/88 "2006-07-08T21:20:20Z")
[QUOTE=Otto] And I continue to maintain that the court used the wrong test. Marriage discrimination is sex discrimination. [/quote] You’re not whistling Dixie here. > [@](#): > > And yet New York allows same-sex couples to adopt each others’ children. And yet New York allows mixed-sex couples who are incapable of or have no intention of having children to marry. And yet single people are allowed to have children in New York and New York married couples with children are allowed to divorce. I know this is a vent… but I have to point out that the “but yet, some other aspect doesn’t fit…” line of argument is utterly irrelevant to the rational basis test. ---
**Author:** ![Bookkeeper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bookkeeper/32/281_2.png) [@Bookkeeper](https://boards.straightdope.com/u/Bookkeeper)\ **Post date:** [July 9, 2006, 3:57am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/89 "2006-07-09T03:57:21Z")
[QUOTE=JustAnotherGeek] A little more of my thinking: As I see it, the plantiffs in this case are arguing that SSM should allowed, based on the application of anti-discrimination laws. That is, when all legal writings and decisions are taken into account, the sum total is that SSM already “is” legal. No new laws need to be written to allow two people of the same sex to marry. It is only the interpretation of existing laws that needs to be changed, not the laws themselves. [/QUOTE] I believe that this is the interpretation that Canadian courts arrived at, with the result that SSM is now legal in Canada. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 9, 2006, 10:48am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/90 "2006-07-09T10:48:16Z")
In essence, yeah. And that’s the key problem to be resolved in the arguments here. Is there a “freedom to Skype”? Not an entitlement to have a computer, speakers/headphones and mike, and Internet access with Skype loaded, but the right to use Skype if you have those things without government let or hindrance. I believe most courts would say yes, completely: the telephone is a protected mode of speech and has been for over a hundred years; this is just a variant on telephonic contact using the Internet. Old general principle, freedom of speech, extends to cover new application. At issue: freedom to contract marriage in a form recognizable at law. Under present jurisprudence, **Federal** equal protection does not extend to require same-sex marriages be recognized on a par with traditional opposite-sex monogamous ones. Some state equal protection clauses do. In either case, it’s a constitutional issue. And as noted, individual rights can be abrogated only under certain circumstances. ---
**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 10, 2006, 3:10am UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/91 "2006-07-10T03:10:11Z")
[QUOTE=Bricker] 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). [/QUOTE] Can you explain for us layman where exactly that definition is laid down in Moore v. East Cleveland? I acknowledge that it maintains that the institution of the family is protected because it is deeply rooted in the nation’s history and tradition, but nowhere that that is a requirement for a right to be considered fundamental. Perhaps I missed it, or I’m not reading enough into the text that is there. Vanilla is a flavor of ice cream, but not a requirement for something to be classified as ice cream. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2006, 2:35pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/92 "2006-07-10T14:35:37Z")
[QUOTE=DMC] Can you explain for us layman where exactly that definition is laid down in Moore v. East Cleveland? I acknowledge that it maintains that the institution of the family is protected because it is deeply rooted in the nation’s history and tradition, but nowhere that that is a requirement for a right to be considered fundamental. Perhaps I missed it, or I’m not reading enough into the text that is there. Vanilla is a flavor of ice cream, but not a requirement for something to be classified as ice cream. [/QUOTE] _Moore_ says, as you acknowledge: > [@](#): > > …Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. But where, precisely, is the link that says this is a fundamental right? It’s actually in _Washington v. Glucksberg_, 521 U. S. 702 (1997): > [@](#): > > We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” ibid, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court, Moore, 431 U. S., at 502 (plurality opinion). > > Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” id., at 503 (plurality opinion); So it’s a little bit of “connect the dots.” _Glucksberg_ quotes _Moore_’s language about ‘deeply rooted’ and says they are fundamental rights and liberties. ---
**Author:** ![JustAnotherGeek](https://avatars.discourse-cdn.com/v4/letter/j/58f4c7/32.png) [@JustAnotherGeek](https://boards.straightdope.com/u/JustAnotherGeek)\ **Post date:** [July 10, 2006, 2:51pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/93 "2006-07-10T14:51:52Z")
Without turning this into a “love-fest” destined to get this moved from the Pit to MPSIMS, I do want to thank **Bricker** for trying to explain to us the legal reasoning behind these decisions. I know that you support SSM-rights and are not agreeing with the NYCoA for a bigotted reason, but rather for a legally logical one. (It’s kinda like my agreeing with the Supreme Court’s decision to allow BSA to exclude people, but my disagreement with the BSA.) I also know that you would like to see a legislative movement to make SSM once and for all permitted. I hope you don’t get annoyed by the folks (like me) who have a different way of looking at the problem, and don’t understand / agree with the “legal” reasoning. (Of course, I still think my way of thinking is right…) 😉 ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 10, 2006, 3:59pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/94 "2006-07-10T15:59:42Z")
[QUOTE=JustAnotherGeek] a legally logical one. (It’s kinda like my agreeing with the Supreme Court’s decision to allow BSA to exclude people, but my disagreement with the BSA.) [/QUOTE] Ew, not to open up a pit thread within a pit thread, but calling the Court’s reasoning in Dale “legally logical”…no. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2006, 4:04pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/95 "2006-07-10T16:04:38Z")
[QUOTE=JustAnotherGeek] Without turning this into a “love-fest” destined to get this moved from the Pit to MPSIMS, I do want to thank **Bricker** for trying to explain to us the legal reasoning behind these decisions. I know that you support SSM-rights and are not agreeing with the NYCoA for a bigotted reason, but rather for a legally logical one. (It’s kinda like my agreeing with the Supreme Court’s decision to allow BSA to exclude people, but my disagreement with the BSA.) I also know that you would like to see a legislative movement to make SSM once and for all permitted. I hope you don’t get annoyed by the folks (like me) who have a different way of looking at the problem, and don’t understand / agree with the “legal” reasoning. [/QUOTE] Happy to help. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [July 10, 2006, 5:17pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/96 "2006-07-10T17:17:23Z")
[QUOTE=Bricker] I’m sorry, but I don’t agree. The legislature could rationally find that children are best served with one parent of each sex. You may not agree with the finding; that doesn’t make it impossible for a rational decision-maker to reach that conclusion. [/quote] Here’s some cases to help you make your point: > [@Naim v. Naim](#): > > The institution of marriage has from time immemorial been considered a proper subject for State regulation in the interest of the public health, morals and welfare, to the end that family life, a relation basic and vital to the permanence of the State, may be maintained in accordance with established tradition and culture and in furtherance of the physical, moral and spiritual well-being of its citizens. > We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius. > [@Stevens v. US](#): > > Marriage is a consentient covenant. It is a contract in the sense that it is entered into by agreement of the parties. But it is more than a civil contract between them, subject to their will and pleasure in respect of effects, continuance, or dissolution. It is a domestic relation having to do with the morals and civilization of a people. It is an essential institution in every well organized society. It affects in a vital manner public welfare, and its control and regulation is a matter of domestic concern within each state. A state has power to prescribe by law the age at which persons may enter into marriage, the procedure essential to constitute a valid marriage, the duties and obligations which it creates, and its effects upon the property rights of both parties. Maynard v. Hill, 125 U.S. 190, 8 S. Ct. 723, 31 L. Ed. 654. And within the range of permissible adoption of policies deemed to be promotive of the welfare of society as well as the individual members thereof, a state is empowered to forbid marriages between persons of African descent and persons of other races or descents. Such a statute does not contravene the Fourteenth Amendment. > [@Plessey v. Ferguson](#): > > “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. \* \* \*.” > [@36 Am Jur. 452](#): > > In accordance with the power of every country to make laws regulating the marriage of its own subjects, to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying, it is considered as well settled that although miscegenation statutes have been persistently attacked on the ground that they are violative of the United States Constitution, they nevertheless constitute a proper exercise of the power of each state to control its own citizens. > [@Naim v. Naim](#): > > No such claim for the intermarriage of the races could be supported; by no sort of valid reasoning could it be found to be a foundation of good citizenship or a right which must be made available to all on equal terms. In the opinion of the legislatures of more than half the States it is harmful to good citizenship. There’s always a rational basis… ---
**Author:** ![JustAnotherGeek](https://avatars.discourse-cdn.com/v4/letter/j/58f4c7/32.png) [@JustAnotherGeek](https://boards.straightdope.com/u/JustAnotherGeek)\ **Post date:** [July 10, 2006, 5:39pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/97 "2006-07-10T17:39:32Z")
[QUOTE=Otto] Ew, not to open up a pit thread within a pit thread, but calling the Court’s reasoning in Dale “legally logical”…no. [/QUOTE] Understood. I don’t agree with the NYCoA decision, either. However, there are, obviously, people who think the arguments have legal validity (if not moral logic). As such, I find it enlightening to know what the reasoning is. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2006, 8:53pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/98 "2006-07-10T20:53:47Z")
[QUOTE=Hamlet] Here’s some cases to help you make your point: There’s always a rational basis… [/QUOTE] Nice. And fascinating that your ardent defense of “equal” protection vanishes when it’s someone like Jennifer Gratz asking to be protected from discrimination, eh? Inconsistency, thy name is **Hamlet**. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [July 10, 2006, 9:25pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/99 "2006-07-10T21:25:58Z")
[QUOTE=Bricker] Nice. [/quote] Thanks, I liked it. I just don’t see the beliefs that homosexuals, as a class, are somehow worse parents, that procreation is a necessity for marriage, or that heterosexuals are more stable as “rational”. I also do not think the current backlash against SSM is anything more than bigoted dislike for those who are not like the majority put into law. Kinda like all the arguments against miscegenation, which were widely accepted as “rational” by courts. > [@Bricker](#): > > And fascinating that your ardent defense of “equal” protection vanishes when it’s someone like Jennifer Gratz asking to be protected from discrimination, eh? > > Inconsistency, thy name is **Hamlet**. Show me one place I’ve ever discussed, let alone argued against, Jennifer Gratz, you insufferable, egotistical blowhard. I’ll wait. ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 10, 2006, 9:28pm UTC](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411/100 "2006-07-10T21:28:46Z")
[QUOTE=Hamlet] There’s always a rational basis… [/QUOTE] It does make one wonder if, in a certain historical context, it is possible to be both rational and bigoted, i.e. “common sense” favors the intolerant argument, and hence “common sense” must change first. [Previous page](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411.md?page=4) [Next page](https://boards.straightdope.com/t/yeah-fuck-you-too-ny-court-of-appeals/363411.md?page=6)