Blogs > Liberty and Power > NY State Court Decision on Same-Sex Marriage

Aug 8, 2005 5:03 pm


NY State Court Decision on Same-Sex Marriage



As folks may have seen in the news yesterday, a NY state judge has ruled that NY City must give marriage licenses to same-sex couples (barring the inevitable appeal). Jonathan Dresner has a few thoughts nextdoor. You can find a PDF of the full, long decision here.

I took a quick skim through the decision this morning and I think it's a pretty good piece of legal reasoning, although I don't know the NY state constitutional precedents in the way I know the federal ones. I just wanted to highlight two parts of the decision.

The phrase "the traditional institution of marriage," which defendant quotes from Justice O'Connor's concurring opinion in Lawrence (539 US at 585), appears to refer not to marriage as a “ traditional institution” (a formulation that would leave the nature of marriage open to new forms thereof), but rather, to the traditional form of the institution of marriage [SH – emphasis mine] - confined to opposite-sex couples. In dictum, Justice O'Connor implied that the preservation of that traditional form could be a rational reason to bar same-sex marriage. Id at 585. The issue of same-sex marriage, however, was not before the Court. Nonetheless, the three justices who dissented in Lawrence, and who were the only justices to address Justice O'Connor's parenthetical remark, pointed out that the phrase "‘preserving the traditional institution of marriage’ is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 US at 601 (Scalia, J., the Chief Justice, and Thomas J. dissenting) (emphasis in original). It is clear that moral disapproval of same-sex couples or of individual homosexuals is not a legitimate state purpose or a rational reason for depriving plaintiffs of their right to choose their spouse. See Romer v. Evans, 517 US 620 (1996). In weighing the significance of the traditional institution of marriage, one must take into account the Supreme Court’s rejection of the elements of distaste or moral disapproval. See Lawrence, 539 US at 583.

First, note the references to Lawrence, the last sentence in particular. Scalia's dissent remains prophetic about the ways in which the Lawrence decision would be used to bolster the case for same-sex marriage even though Kennedy's opinion explicitly says it shouldn't have any such implications. See my earlier posts on these issues here and here.

Second, I can't help but note the highlighted passage where Judge Ling-Cohan makes the distinction between the functions of marriage as an "institution" and the various forms marriage might take, which is one that I have been harping on in earlier posts (here and here) as well as in my scholarly work and teaching on the family. It will be very interesting to see what happens with this decision.

Finally, Jonathan's post on this topic included a link to an excellent piece in the Harvard Magazine that explores these issues of the evolution of the American family very effectively.


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John Arthur Shaffer - 2/5/2005

in my cut and paste. Here it is:

"Almighty God created the races white, black, yellow,
malay and red, and he placed them on separate
continents. And but for the interference with his
arrangement there would be no cause for such
marriages. The fact that he separated the races shows
that he did not intend for the races to mix."


John Arthur Shaffer - 2/5/2005

Thanks for the link to the decision.

I was particularly stunned by this reference from the trial court's decision (as part of the SCOTUS Loving decision striking down of anti-miscegenation laws):

"Almighty God created the races white, black, yellow,
malay and red, and he placed them on separate
continents. And but for the interference with
arrangement there would be no cause for
marriages. The fact that he separated the races
that he did not intend for the races to mix."

I don't know if I've seen a better argument for a clear line separating church and state. That was just 39 years ago that anti-miscegenation laws were stuck down federally.

I suppose if you believe the earth is only 4000 years old and the continents were always distinct then it's quite easy to assume homosexuality is nothing but a behavioral choice (and a sinful one at that).

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