"Because marriage is a sacred institution and the foundation of society, it should not be re-defined by activist judges." George W. Bush, 2005 State of the Union AddressA New York state judge has ordered NY City offices to begin issuing same-sex marriage licenses in 30 days unless her ruling is appealed. It will be, mostly because another judge has issued an opposite ruling, and that's what appeals courts do: resolve disputes on matters of fundamental interpretation.
And there is a very fundamental issue at stake here: gendered language.
In her ruling, Justice Ling-Cohan declared that"the words 'husband,' 'wife,' 'groom' and 'bride,' as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to mean 'spouse,' and all personal pronouns, as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to either men or women."In all other areas of law, as a matter of course, gender is neutral. [OK, I know this is a dangerous overgeneralization given my free-form legal expertise, but I can't think of an exception; if you can think of a relevant exception, feel free to comment] Laws apply equally to men and women, and there are no offenses specifically for one or the other (though often laws are interpreted differentially, that's not inherent in the language). Governor Pataki's spokesperson is entirely correct when they say that the law is" clear that marriage is between a man and a woman" but that's the problem. Ling-Cohan has decided that, as a matter of law, such clarity and specificity on gender in marriage cannot be constitutionally justified, just as specifications about race in marriage fell by the wayside.
It's worth noting, as I have before, that our definition of"family" has already changed to include more variations than it used to. Even in the past,"traditional" families often had blendings and offshoots that were more interesting than the stereotypical nuclear family at the center of a neat bi-pyramidal (hourglass-shaped?) family tree.
The question here, though, is whether it is legitimate to write gender into law? It was in the past, but it hasn't been for some time now. Dismantling the remnants of gendered law seems to have been largely achieved by judicial fiat, and by benign neglect of dead-letter laws; those who oppose"judicial activism" have to acknowledge that this decision is actually a pretty reasonable application of the principle of non-gendered law to the case of marriage. The question is, I guess, whether they can make a case that marriage is a special circumstance, so much so that it overrides the principle of equality. The President's position is clear (well, so are most people's) but legal and historical progress are not on his side in this matter.
Non Sequitur: My father sent along this link to a remarkable compilation of reference material: sizes, shapes, quantities and quality controls.