Yeah, fuck you too, NY Court of Appeals

[Polycarp]

As far as personal opinions go, DMC, we’re in pretty close to total agreement, and it would be nitpickery to deal with any exceptions. I think I misunderstood your point and posted an unneeded “corrective”

Now, as Bricker is fond of saying, sometimes it’s necessary to state what the law of the land is, in terms of current jurisprudence and precedent – even if one personally disagrees with it.

It’s my understanding that the New York high Court held that gay marriages did not have a long history of acceptance as a civic right, that SCOTUS’s precedent was clear and binding (as regards Federal rights), and that there was no reason in New York rights law to find differently than SCOTUS had (as opposed to Massachusetts rights law, where the guarantee on which the SJC hung their hats was explicitly spelled out in the State Constitution and stronger than the Federal).

[DMC]

@Polycarp

Now, as Bricker is fond of saying, sometimes it’s necessary to state what the law of the land is, in terms of current jurisprudence and precedent – even if one personally disagrees with it.

Sure, but that doesn’t mean one has to accept it as either good or correctly decided. I contend that it is neither in this case.

It’s my understanding that the New York high Court held that gay marriages did not have a long history of acceptance as a civic right, that SCOTUS’s precedent was clear and binding (as regards Federal rights), and that there was no reason in New York rights law to find differently than SCOTUS had (as opposed to Massachusetts rights law, where the guarantee on which the SJC hung their hats was explicitly spelled out in the State Constitution and stronger than the Federal).

I agree that that is what they held, but I disagree with how they came to the decision. The portion that I take issue with is where they try to more narrowly define a fundamental right than the NY Supremes did in Hernandez v. Robles (one of the four cases before the NYCOA for those following along). The NYCOA decision states:

In deciding the validity of legislation under the Due Process Clause, courts first inquire whether the legislation restricts the exercise of a fundamental right, one that is “deeply rooted in this Nation’s history and tradition” (Washington v Glucksberg, 521 US 702, 721 [1997], quoting Moore v City of East Cleveland, 431 US 494, 503 [1977] [plurality opinion]; Hope v Perales, 83 NY2d 563, 575 [1994]).

Quite frankly, Moore v. City of East Cleveland never made such a narrow definition, so Washington v Glucksberg isn’t really “quoting” that case in any sense of the word that I’m familiar with. So the NYCOA is, in my opinion, using a poor precedent in their decision. As I noted earlier, I agree that a right that is deeply rooted in this Nation’s history and tradition is a fundamental right and that’s what Moore actually does say, but also as noted earlier, I don’t think that’s the only measure of one, and neither did the author of the Moore decision. I also have to roll my eyes when reading the portion where they claim to work in a top down manner, when deciding what level of scrutiny to apply. I’m pretty sure they actually worked from the bottom up.

With all of that said, you’ll get no argument from me as to what the law currently is in New York, only as to whether that law should have survived this process.