Gay Patriot Header Image

New York’s Ruling on Gay Marriage & the Imperative to Move the Debate from Courts to Legislatures

Posted by GayPatriotWest at 5:46 pm - July 6, 2006.
Filed under: Civil Discourse,Gay Marriage,Gay Politics

Just over a month ago in making the case for a federal constitutional amendment defining marriage as the union of one man and one woman, President Bush said, “An amendment to the Constitution is necessary because activist courts have left our nation with no other choice.” Like the president, many other supporters of this gratuitous amendment believe it is necessary to prevent state courts from requiring their jurisdictions to accord same-sex unions the same status as traditional marriage.

Well, that argument became less compelling this morning when New York’s highest court ruled “that gay marriage is not allowed under state law.” In a statement, New York Governor George Pataki said, “I am also pleased that the court has reaffirmed that the Legislature is the appropriate branch of government to initiate and make any changes to existing law governing marriage.” He’s right; the legislature, rather than the courts, is the appropriate forum to decide such issues.

While gay groups are reacting in a juvenile manner with Human Rights Campaign (HRC) President Joe Solmonese calling the court’s reasoning “archaic” and “rooted in ignorance,” they also seem to have heard the words of the Empire State’s Republican Governor. They are vowing to work with the state legislature. In a release a little less shrill than HRC’s, National Gay and Lesbian Task Force (NGLTF) Executive Director Matt Foreman, for example, calls on the Democratic gubernatorial candidate and the State Assembly Speaker to take action.

Kudos to these two for looking to the elected state legislature to pass what they call “marriage equality” legislation. While Solomonese is right to cite the numerous child welfare and psychological organizations which support same-sex marriage, he’s wrong to fault the court for ignoring their findings. It is the job of courts to interpret the law, not set social policy.

it would be entirely appropriate, however, for advocates of gay marriage to present this social research (of the aforementioned groups) to elected legislators (and the people).

I would also hope that gay leaders in the Empire State would, as their neighbors in Connecticut, also consider civil unions which stand a greater chance of passage than does gay marriage. Perhaps they will find that proposal inadequate, but it does seem, from the polls I’ve seen, that there is a consensus building in a number of states in the Northeast and on the West Coast for state recognition of same-sex civil unions. State recognition of same-sex civil unions would be a big step in the right direction.

I’m not as upset by this decision as are many gay activists and organizations. I believe they have picked the wrong fora to make their case for gay marriage. They should be going to legislatures instead of courts.

Had New York’s Court of Appeals ruled in favor of gay marriage, the decision would have rallied gay marriage opponents and strengthened the case for a federal constitutional amendment. Now that argument is considerably weakened. And the option still remains for advocates of gay marriage to make their case before the legislature — and the people to whom the elected legislators are responsible.

Despite the unfortunate rhetoric of the releases of HRC and NGLTF, I am delighted to see that their leaders are now looking to these legislators to make that case. Let’s hope this defeat convinces them to spend more time promoting gay marriage in legislatures and other popular fora rather than in courts of law.

-Dan (AKA GayPatriotWest): GayPatriotWest@aol.com

Share

28 Comments

  1. Despite the unfortunate rhetoric of the releases of HRC and NGLTF, I am delighted to see that their leaders are now looking to these legislators to make that case. Let’s hope this defeat convinces them to spend more time promoting gay marriage in legislatures and other popular fora rather than in courts of law.

    Errr… Didn’t the CA legislature pass gay-marriage only to have it vetoed by a Republican Governor?

    Comment by Patrick (Gryph) — July 6, 2006 @ 6:37 pm - July 6, 2006

  2. The voters in California rejected gay marriage by more than a 60% majority.

    Comment by Butch — July 6, 2006 @ 7:08 pm - July 6, 2006

  3. I gotta feeling this is a football Eliot Spitzer is not happy to have had punted into his end zone right now. It affords the hapless New York GOP–especially the folks from Upstate–a single issue to rally their candidates around. Any chance Spitzer had to win the Governorship with both houses in Albany in Democrat hands might have just been blown up.

    Comment by TC@LeatherPenguin — July 6, 2006 @ 7:22 pm - July 6, 2006

  4. So, when the WA State Supreme Court creates a right to Gay Marriage shortly after the November elections, will you celebrate their action, or condemn it?

    Comment by Greg D — July 6, 2006 @ 8:00 pm - July 6, 2006

  5. California illustrates a point. A proposition was voted on and passed against gay marriage, then it was declared null and void by a judge. Using the judicial system could cause popular backlash, and if persisted in may even result in an amendment against gay marriage.

    Comment by tweell — July 6, 2006 @ 8:01 pm - July 6, 2006

  6. This should make the gay left happy. Howard Dean Calls Traditional Families “bigoted and outdated.”

    Comment by V the K — July 6, 2006 @ 8:10 pm - July 6, 2006

  7. “that argument became less compelling this morning”

    I’ve seen this argument several times today, but it doesn’t hold up. This is one decision of one court in one state. That this one court ruled in favor of a democratic resolution to this issue does not diminish the case for enacting protection for states that do not wish to be subject to a Full Faith and Credit challenge from couples that may have received a license in one state, but move to another state that does not recognize such a redefinition of marriage.

    Case in point: The Washington Supreme Court is holding onto a decision as we speak. If the WASC decides to discover a right to same-sex marriage (and indicators are that it will), WA state stands to become the “Las Vegas” for same-sex marriage. Why? Because WA has no residency requirement for the issuance of marriage licenses.

    The concept of federalism is not violated by enshrining a uniform definition and composition of marriage in the constitution. A good analysis here: http://www.washtimes.com/commentary/20060606-090944-4652r.htm

    This is only a “gratuitous” issue to those who look at marriage as a bundle of benefits and/or a contract that was established to affirm the close feelings a couple (or a group) feels for one another rather than what marriage really is (an institution that for all of our history has existed to bind a mother and a father to the children they create and remain responsible for so the state need not become the “village”). The attempts to fundamentally alter marriage will not be limited should one group see success in imposing its redefinition on America. The very same legal arguments being employed now are being studied by others who would like to craft marriage to their image (polygamists, polyamorists) — to the ultimate destruction of the institution.

    Thanks for the space.

    Comment by RaiderNation — July 6, 2006 @ 8:11 pm - July 6, 2006

  8. Just like the divorce debate of the early 20th century and the sodomy debate of the latter 20th century, no matter what the legislatures say, it is ultimately the SCOTUS that makes the final extension of rights universal and relatively permanent.
    -

    Comment by chandler in hollywood — July 6, 2006 @ 8:13 pm - July 6, 2006

  9. I’m looking forward to one of these cases going to the supreme court and see how these anti-marriage laws and intiatives hold up under the 14th Ammendment.

    Sadly, I’m not surprised to see conservative gay supporters herald today’s decision….obviously the conservative zeal to tear down the court system of this country is more important than recieving equal treatment under the law.

    Comment by Kevin — July 6, 2006 @ 8:16 pm - July 6, 2006

  10. The very same legal arguments being employed now are being studied by others who would like to craft marriage to their image (polygamists, polyamorists) — to the ultimate destruction of the institution.

    As some of us pointed out it would be. Canada’s Justice Ministry, for example, has already recommended extending marriage rights to polygamous groups. And those of us who did point out that this is exactly what would happen were attacked and vilified for it.

    This is only a “gratuitous” issue to those who look at marriage as a bundle of benefits

    Which is exactly how the SSM lobby has framed the argument: marriage is nothing but a grab-bag of social benefits. And, I would add, SSM is another opportunity for an “in your face” to Christian conservatives, which I think motivates the pro-SSM side much more than they would ever admit.

    Comment by V the K — July 6, 2006 @ 8:29 pm - July 6, 2006

  11. Be careful what you wish for, Kevin.

    There’s been no precident suggesting that the Constitution protects against sexuality-based discrimination. In fact, there have been arguements stating the opposite – we’ve had SCOTUS rulings ignore an obvious chance to use the 14th and instead. I think there was even one stating that gay/lesbian sex isn’t sex at all (that just confuses the f*** out of me).

    That’s saying we breeders don’t also point out that straight couples aren’t allow to marry those of the same gender (outside of MA).

    Comment by gattsuru — July 6, 2006 @ 8:31 pm - July 6, 2006

  12. This is my first post on this site but I have been reading this blog for almost a year and I must say GPW is an amazingly thoughtful voice on this subject. When judges in Massachusetts discovered a right to gay marriage I was applauding their decision. Then that pesky little ammendment came around and I saw that proponents of that ammendment were correct in that these issues were being decided by “activists judges” and not by “we the people.” As much as I think gays and lesbians deserve the same protections afforded to heterosexual couples we also need to be patient on this issue and allow “we the people” to vote on this issue and unfortunately that might take time but I have faith that it will happen eventually in all 50 states when people choose to come around on this issue. Because when we give judges the power to legislate law on one issue who knows what it might be next that they abusing their power on.

    Comment by Richard — July 6, 2006 @ 8:36 pm - July 6, 2006

  13. Let’s also not forget that under the rules of the ABA, the same lawyers who sued to get court-imposed same sex marriage are professionally entitled to refuse to represent a gay or lesbian client.

    Comment by V the K — July 6, 2006 @ 8:54 pm - July 6, 2006

  14. I’m grateful to see the author of this web site say “It is the job of courts to interpret the law, not set social policy.” Amen, bruthah!

    There’s no hard and fast rule for when a Supreme Court should override our nation’s past, to create new law. The Negro fight for civil rights is often declared to be the standard. If it IS the standard, then consider that in approximately 3/4 of the states, blacks already had de-facto equality, and the Supreme Court decision was judicial fiat overruling activities in the Deep South, in 1/4 of the states only.

    Currently, there’s not one state where the people would vote for gay marriage. We wouldn’t be ready for the courts if even HALF of them did, even that is not enough! We have a lot of work to do to convince the American people. The liberal gay elite wants to smash this on the American people using the courts as a dictatorial boot upon the throats of the people in EVERY State.

    There are precious few cultures in world history that would have allowed gay marriage. It’s never been allowed here. There is no rational for a civil rights violation based on any sense of existing law. We must win the hearts and minds of the people, not just a few select judges.

    For all the wishing and hoping that the courts are the way to go, reality intrudes. IT WILL NEVER WORK. Until you have a majority of the people and the states in your corner. Not for new law. Nor should it work until we gain those majorities.

    Comment by Michael Devereaux — July 6, 2006 @ 9:55 pm - July 6, 2006

  15. It is appauling the way that liberals have institutionalized their agenda through the courts. This is a democracy, for those of you who didn’t grasp that in first grade.
    Millions of Americans didn’t fight and die so we could have a judiciary that acts like a legislature. Nine people in black robes (who we can’t vote for, impeach and whom are appointed for life) don’t get to tell us what our laws are going to be. Even the policy of judicial review is tradition. It was never written into the Constitution.

    And for those liberals that don’t grasp these MIND BLOWING concepts, just realize that this can work both ways. Conservatives can be activists from the courts too. And if you liberals keep it up, expect to see more and more conservative judicial activism.

    Comment by Mark — July 6, 2006 @ 10:14 pm - July 6, 2006

  16. Hey, Mark… why do you think the libs love Castro so much? He gets to enact whatever laws he wants, without any of this ‘consent of the governed’ business. He also gets to throw anyone he wants into prison, and kill them too. Libs envy that power.

    Comment by V the K — July 6, 2006 @ 10:18 pm - July 6, 2006

  17. Some very insightful comments here.

    As to the remark about Gay sex not being sex, this goes back to the Clinton scandal when his defenders were saying that his receiving oral sex was no big deal since it wasn’t really sex anyway. Hmmm, I wonder if my wife would buy that one!

    Comment by Rick — July 6, 2006 @ 10:23 pm - July 6, 2006

  18. I get it now. The courts are just the most evil thing ever created. How could our founding fathers ever have created them? Trying to set up a body that would be free of the temptations of elected officials? A 3rd body that would be the last stand from thelected officials running slipshod over ordinary citizens? Ludicrus! Let the president do whatever he wants. Let legislatures pass whatever laws they want, which can be free of the confines of that pesky constitution. whew. gee, now that we’ve passed all those laws to stop those pesky homosexuals from marrying, I wonder other laws we can pass against them from having the same rights as decent, normal citizens; they are just so icky.

    Comment by Kevin — July 6, 2006 @ 10:58 pm - July 6, 2006

  19. You could always move to Cuba. I hear they’ve got a great system there. Universal Health Care, free education and housing, no discrimination. Must be a better system.

    Comment by Rick — July 6, 2006 @ 11:07 pm - July 6, 2006

  20. 19: so you don’t mind America becoming a fascist state woo hoo!

    Comment by Kevin — July 6, 2006 @ 11:25 pm - July 6, 2006

  21. #7

    or a group) …feels for one another rather than what marriage really is (an institution that for all of our history has existed to bind a mother and a father to the children they create and remain responsible for so the state need not become the “village”).

    This argument essentially makes the case for polygamous marriage. In fact, since as the author pointed out, while it is true that there are very few cultures in history that have permitted “gay marriage”, there are many, many cultures that have permitted and encouraged and accepted polygamous marriage as the norm. It’s even supported by the Bible. There is a much stronger case for polygamous marriage than gay marriage.

    Comment by Patrick (Gryph) — July 6, 2006 @ 11:27 pm - July 6, 2006

  22. 8: By the way, sodomy laws were essentially overturned by the Supreme Court of the United States (After a previous Supreme Court ruled them constitutional). Do you think that was wrong?

    Comment by Kevin — July 6, 2006 @ 11:28 pm - July 6, 2006

  23. #2

    The voters in California rejected gay marriage by more than a 60% majority.

    Those same voters also elected people to represent them and make laws. They are also all still in office, and likely will be after the next election as well. Thats also an expression of “the will of the people”.

    Comment by Patrick (Gryph) — July 6, 2006 @ 11:29 pm - July 6, 2006

  24. I once had a lawyer tell me that starting a corporation was like getting married. I think about that a lot when I consider the debate on ‘gay marriage’.

    You see, I think we in the gay community did ourselves a disservice by allowing the debate to center around gay people marrying, when in fact, what we’re really talking about is a legal mechanism that allows two people to enter into a contractual agreement with each other that provides the same level and type of legal entanglement that a marriage certificate provides.

    Now some in the gay community may counter that we want more than a legal means to make it just like a marriage. No, we want a ceremony too. But since there is currently nothing stopping a gay couple from having a marriage ceremony, we have to look at the legal priviledges the gay community is seeking as the true basis for the push for ‘gay marriage’.

    As such, the more I look at what we want in the gay community, the more I realized that what the gay community wanted has vast benefits outside of the gay community. For example, two or more siblings whose parents have passed away, might want to establish a domestic partnership, so that there is no confusion as to who is helping who, and who has guardian rights over who or what to do if the other in incapacitated.

    I believe a wide range of people could benefit from domestic partnership or domestic incorporation laws, yet we had to, in typical gay fashion, make it all about us. What we should have done was create a broad front of people that are examples of people who could benefit from a domestic partnership.

    The gay community doesn’t need to hide behind a bunch of straight people, but in selling the legislation, gay people should not be the main focus of the debate. The gay community should only be one aspect of the debate for domestic partnership.

    Sad to say, but it’s kind of like AIDS … we must first show the straight world the problem affects them too before they’re going to pull their heads out of the sand and take notice. That’s why we have to put a middle-America, conventional face on this, and we need to step away from the word marriage.

    I live in Kansas and when I tell straight people I know what it is the gay community (from my point of view) really wanted, they suddenly understand. From there it’s hardly any effort to convince them that the government ought not even issue ‘marriage certificates’, but domestic partnership certificates instead.

    In short, I think we need to keep the laws with the government, but leave the marriage part to the church.

    Comment by Dwayne — July 6, 2006 @ 11:32 pm - July 6, 2006

  25. This has nothing to do with the topic, but I was looking through the interview of Bush with CNN and just couldn’t let this go by:

    On being asked about the death of Ken Lay:
    “My hope is that his heart was right with the Lord, and I feel real sorry for his wife. She’s had a rough go, and she’s now here on Earth to bear the burdens of losing her husband, a man she loved.”

    This man swindled thousands of hard working Americans out of their pensions, not to mention the customers of Enron who got swindled as well. I (like a lot of ex-Enron employees) strongly suspect his heart is not quite so close to the Lord as Bush thinks it is. At least that’s one less criminal the state will have to support and Linda Lay won’t have to go to prison in his place. Maybe they can just replay the video from her TV appearances in 2002 sobbing about losing their family fortune….

    Comment by Kevin — July 6, 2006 @ 11:39 pm - July 6, 2006

  26. I’m sorry, but I can’t let this pass …

    On being asked about the death of Ken Lay:
    My hope is that his heart was right with the Lord, and I feel real sorry for his wife. She’s had a rough go, and she’s now here on Earth to bear the burdens of losing her husband, a man she loved.”

    This man swindled thousands of hard working Americans out of their pensions, not to mention the customers of Enron who got swindled as well. I (like a lot of ex-Enron employees) strongly suspect his heart is not quite so close to the Lord as Bush thinks it is.

    Pres. Bush’s actual words only suggest he desires a positive afterlife for Mr. Lay, Mr. Bush in no way actually tells us what he thinks will happen to Mr. Lay.

    I find leftist doing this kind of thing an awful lot with Pres. Bush and I have to wonder if they even realize what they’re doing it?

    Comment by Dwayne — July 6, 2006 @ 11:52 pm - July 6, 2006

  27. #10: “Canada’s Justice Ministry, for example, has already recommended extending marriage rights to polygamous groups.”

    No it has not! There was a study done that recommended decriminalization of polygamy but the Minister at the time rejected the report’s recomendations. Why can’t you conservatives simply tell the truth?

    Comment by Ian — July 6, 2006 @ 11:56 pm - July 6, 2006

  28. [...] does appear to be an end-run around his state Court of Appeals (its highest court) 2006 decision refusal to mandate gay marriage in the Empire State, it does seem the New York Governor is on firmer legal [...]

    Pingback by GayPatriot » Gay Marriage by Executive Fiat in Empire State? — May 30, 2008 @ 2:29 pm - May 30, 2008

RSS feed for comments on this post.

Sorry, the comment form is closed at this time.