Well said. Exactly correct.
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.
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.
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:
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?
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?
That’s quite a catch, that Catch-22, isn’t it?!
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.
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.
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:
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.
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.
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.
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.
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.”
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?
The rights of minorities are usually analyzed under Equal Protection, not Due Process.
From Andrew Sullivan (long-time proponent of gay marriage):
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.
Yes…
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.
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”?