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Saturday, February 05, 2005

NY Gay Marriage Ruling Synopsis

For those who haven't yet read Hernandez v. Robles, The NY Supreme Court ruling that New York state's marriage laws violate both the Due Process Clause and the Equal Protection Clause of the New York State Constitution, I thought I would provide a quick (and admittedly rough) synopsis of the support for the state court ruling.

The court begins with a discussion of Loving v. Virginia (striking down a ban on interracial marriage), then cites Goodridge v. Department of Public Health (MA ruling allowing gay marriage) for authority in deciding that the statute does bar homosexual marriage. The court's holding, therefore, declares the statute unconstitutional rather than construing it narrowly to avoid barring the gay marriage.

The meat of the opinion is its finding that marriage is a fundamental right under the NY State Constitution. The court cites Planned Parenthood v. Casey:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
then cites Loving:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men . . . . Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.
again cites Goodridge:
the right to marry "is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference."
Other support that the court relied on include Skinner, Griswold, Eisenstadt, Prince v. Massachusetts, Pierce v. Society of Sisters--all with the goal of establishing a liberty/privacy right to interests associated with marriage.

One thing I find interesting from the court's opinion is it's reliance on Loving--principally an equal protection case--for its establishment of a liberty interest. Loving's equal protection analysis makes up about 4/5 of the opinion, with only a short due process paragraph at the end.

The opinion also frequently conflates liberty/privacy interest within marriage with privacy interest in entering marriage. The reliance on Eisenstadt, Griswold, and Pierce all don't seem relevant when viewed this way. I guess they serve to establish a general "relationship" privacy interest, but it is quite easy to distinguish the two different interests. I also fail to see how Roe and Lawrence are relevant.

In terms of liberty due process rights, I think the court fails to establish gay marriage as a fundamental right. This of course depends, as in Lawrence, on the level of abstraction that the court treats it. There is a tradition of heterosexual marriage as a fundamental right, so the court could say, as it did in Lawrence, that the right does not distinguish based on sexual preference. Then the right would not be to heterosexual marriage, but to marriage, in which case gays are being unduly denied the right.

Jack Balkin notes that this holding undermines state statutes against polygamy and incest. In fact, there is no discussion of any sort of distinction in the opinion. I can't see a way for the court to distinguish the two and I have heard two different con law professors at Columbia, both of whom are gay, say that they can't see any distinction between gay marriage and polygamy in this respect. Balkin notes that the court could find a compelling interest in prohibiting polygamy and no such interest in prohibiting gay marriage, but there is no discussion of this in the opinion.

As the Loving court established the equal protection violation and then skirted the due process issue, Hernandez does not give much of an equal protection holding.

The Plaintiff's argument is quite logical: Plaintiff, were he a woman, could marry this man, so he is being denied a right based on his gender. This is a new argument, supported only by a couple random state decisions cited in the opinion, but one that the U.S. Supreme Court hasn't heard.

The court, however, did not even reach this argument. For the court, "[t]he exclusion of plaintiffs from entering into civil marriage indisputably discriminates against them on the basis of sexual orientation." According to the court, the state didn't advance any rational basis for the discrimination.

Conspicuously missing from the opinion was a citation of Romer v. Evans, where the court struck down a discriminatory amendment to the Colorado Constitution. It seems Romer would substantially support the holding since it bars discrimination based solely on animus.

According to Balkin, the New York Court of Appeals has not accorded discrimination against sexual minorities any heightened review. But since Romer is still rational basis review, there could be support even without the heightened review.


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