Blogging the Amendment

Offering a Forum to Discuss the Pros and Cons of the Marshall/Newman Amendment

NY Court of Appeals Refuses to Overturn Gay Marriage Ban

The New York Court of Appeals (the highest appellate court) today upheld the state’s statutory ban on gay marriage.  In a 70 page opinion, the Court started by reviewing the very mixed history of similar state court challenges (3 states found right to marry in state constitution; 3 states, 4 with NY added, did not) :

New York is one of many states in which supporters of same-sex marriage have asserted it as a state constitutional right. Several other state courts have decided such cases, under various state constitutional provisions and with divergent results (e.g., Goodridge v Department of Public Health, 440 Mass 309, 798 NE2d 941 [2003] [excluding same-sex couples from marriage violates Massachusetts Constitution]; Standhardt v Superior Court, 206 Ariz 276, 77 P3d 451 [Ariz Ct App 2004][constitutional right to marry under Arizona Constitution does not encompass marriage to same-sex partner]; Morrison v Sadler,821 NE2d 15 [Ind 2005] [Indiana Constitution does not require judicial recognition of same-sex marriage]; Lewis v Harris, 378 NJ Super 168, 875 A2d 259 [2005] [limitation of marriage to members of opposite sex does not violate New Jersey Constitution]; Baehr v Lewin, 74 Haw 530, 852 P2d 44 [1993] [refusal of marriage licenses to couples of the same sex subject to strict scrutiny under Hawaii Constitution]; Baker v State, 170 Vt 194, 744 A2d 864 [1999] [denial to same-sex couples of benefits and protections afforded to married people  violates Vermont Constitution]).

Here’s how the court stated the question before it:

The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples. The  question is not, we emphasize, whether the Legislature must or should continue to limit marriage in this way; of course the Legislature may (subject to the effect of the Federal Defense of Marriage Act, Pub L 104-199, 110 Stat 2419) extend marriage or some or all of its benefits to same-sex couples. We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

The two reasons focused on by the court?

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.

The court concludes:

Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that that limitation is valid under the New York Due Process and Equal Protection Clauses, and that any expansion of the traditional definition of marriage should come from the Legislature.

Whether you agree with the court’s reasoning or not, the question for Virginia voters is this….

Why should we have any real concern about whether the Virginia courts will follow the lead of NY and the 3 other states that have rejected challenges to their state’s ban on same-sex marriage?  Virginia’s law has been on the books without challenge for 30 years … can anyone really doubt the outcome of a challenge in Virginia courts?

Here’s what I think: There is no reason to amend the constitution to protect the current statutory definition of marriage in Virginia.  To say otherwise is to ignore Virginia’s conservative judicial tradition, and the appointment process for judges (election by the legislature).

What do you think?

Update:  This just in from

 ATLANTA, Georgia (AP) — The state Supreme Court reinstated Georgia’s constitutional ban on gay marriage Thursday, just hours after New York’s highest court upheld that state’s gay marriage ban.

The Georgia Supreme Court, reversing a lower court judge’s ruling, decided unanimously that the ban did not violate the state’s single-subject rule for ballot measures. Superior Court Judge Constance Russell of Fulton County had ruled that it did.

The QandO blog has a good post that focuses on the Georgia opinion.

More on Below the Beltway. 

For a take on the NY decision from the other side, see NOVATownhall.


July 6, 2006 - Posted by | activist judges, politics of marriage

1 Comment »

  1. The New York Court of Appeals unfortunately followed a long tradition of trailing-edge civil rights rulings. One day, perhaps 58 years from now, the New York Court of Appeals will be embarrassed by its determination that a rational basis exists to prohibit same-sex marriage.


    From Plessy v. Ferguson, 163 U.S. 537 (1896):

    So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.


    Plessy, of course, was overturned in 1954 by Brown v. Board of Education and its following cases, in which the Supreme Court ruled there was no rational basis for government-sponsored racial discriminination.

    The New York court’s decision today reads like a summer rerun of the Plessy opinion.

    I don’t believe it will take 58 years for this unfortunate New York decision to be overturned, nor do I think it will need to be.

    The opponents of equal rights for unmarried couples are
    fighting a rear-guard action – with the support of judges advocating positions discredited over 50 years ago – in a vain attempt to halt societal progress. Voters in New York – and voters in Virginia – are smarter than that.

    Activists judges in another state won’t influence Virginia voters when they reject the so-called marriage amendment.

    Comment by GinterParked | July 6, 2006 | Reply

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