In a decision that accepts the very arguments that were decisively and unanimously rejected just the previous week by the Constitutional Court of South Africa, four members of a five-judge panel of the New York Appellate Division in Manhattan ruled on December 8 that same-sex couples have no right to marry under the New York State Constitution. The forceful arguments in the dissenting opinion by Justice David B. Saxe, however, completely demolish the logic underlying that ruling.
Indeed, Justices Milton L. Williams, author of the majority opinion, James M. Catterson, author of the concurring opinion, and George D. Marlow and John W. Sweeny, Jr. along for the ride may live to be embarrassed by what has been issued in their name to appear in perpetuity in the law reports of the state of New York.
The ruling reversed an opinion issued on February 7, 2005, by Justice Doris Ling-Cohan, ordering New York City Clerk Victor Robles to begin issuing marriage licenses to same-sex couples. Republican Mayor Michael Bloomberg directed the city’s attorneys to appeal the ruling, asserting that although he supported the concept of same-sex marriage, he thought it inappropriate for the city clerk to begin issuing licenses without the approval of the state’s highest court, saying also that he felt the matter best resolved by the Legislature.
The highest court, the Court of Appeals, is where everybody expects this controversy to end up, and where Lambda Legal, which represents the plaintiffs, quickly announced that it would seek to appeal the appellate division ruling.
The opinion by Justice Williams for a majority, three out of the five judges, the shortest of the three issued in the case, is relatively restrained in following the well-worn paths of other appellate courts that have rejected claims for same-sex marriage. He accepted without question the proposition that an asserted state interest in privileging traditional heterosexual marriage by excluding same-sex couples is consistent with the concept of individual liberty and equality guaranteed by the state Constitution.
Williams focuses a substantial part of his argument on the proposition that the Legislature, not the courts, is the appropriate place in the government for determining who has the right to marry.
“The power to regulate marriage lies with the Legislature, not the judiciary,” proclaims Williams. “The definition of marriage in the [Domestic Relations Law] expresses an important, long-recognized public policy supporting, among other things, procreation, child welfare and social stability—all legitimate state interests.”
He finds that the traditional definition of marriage is based on “innate, complementary, procreative roles, a function of biology, not mere legal rights.”
“The legislative policy rationale is that society and government have a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing,” asserts Williams. “It systematically regulates heterosexual behavior, brings order to the resulting procreation and ensures a stable family structure for the rearing, education and socialization of children.”
Whether the government has any legitimate interest in forging “a linkage between sex, procreation and child rearing” goes totally unquestioned by Williams as a rationale for excluding same-sex couples from marriage.
“The law assumes that a marriage will produce children and affords benefits based on that assumption,” he continues, conveniently ignoring the scores of childless couples enjoying the numerous legal and financial benefits accompanying marriage. “It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depend on a healthy marriage culture for this latter, critical, but presently undervalued, benefit.”
“Marriage laws are not primarily about adult needs for official recognition and support,” wrote Williams, “but about the well-being of children and society, and such preference constitutes a rational policy decision. Thus, society and government have reasonable, important interests in encouraging heterosexual couples to accept the recognition and regulation of marriage.”
The well-being of children being raised by same-sex couples is of no concern to Williams, who doesn’t even mention them, even though some past court decisions on marriage have emphasizes how the exclusion of their parents from being able to marry puts them at a substantial disadvantage.
It is interesting to note that Williams bases his policy analysis heavily on statements lifted from the dissenting opinions in Goodridge v. Department of Public Health, the 2003 Massachusetts marriage decision. They also echo statements uttered by the appellate courts of New Jersey, Indiana, and Arizona, in their rejections of same-sex marriage claims over the past few years. But they are contradicted by Justice Antonin Scalia’s dissenting opinion in Lawrence v. Texas, where he asserts that these traditional arguments in support of excluding same-sex couples from marriage are insubstantial.
Williams is equally dismissive of the equal protection claim. Williams says there is no sex discrimination at issue, because both men and women are equally forbidden from marrying persons of the same sex. While conceding that the marriage law “does create a classification on the basis of sexual orientation,” he contends that this is permissible because it is rational, for the reasons he had already articulated. And he rejects the “fundamental right to marry” argument based on a long line of Supreme Court cases, pointing out that all those cases involved opposite-sex couples, and thus what the Supreme Court was really talking about was a fundamental right for opposite-sex couples to marry.
In the end, Williams criticizes Justice Ling-Cohan not only for her constitutional ruling but also for her proposed remedy, which was to reinterpret the marriage law to be gender-neutral. Pointing to the example of the Vermont and Massachusetts highest courts, he argued that if the law had been correctly found unconstitutional, the appropriate remedy would have been to suspend the judgment and give the Legislature an opportunity to address the issue, as those courts had done, though in the case of Massachusetts, the Supreme Judicial Court there merely gave that state’s legislature time to conform the law to it insistence that same-sex couples be allowed to marry.
By comparison to Williams’ rather matter-of-fact tone, Justice Catterson seemed furious at the idea that same-sex couples would seek to marry. Catterson’s opinion, also heavily reliant on the dissenting opinions in Goodrich, treats as presumptuous the attempt by the plaintiffs to compare their exclusion from marriage to the miscegenation laws declared unconstitutional by the Supreme Court in 1967 in Loving v. Virginia.
“To elevate the issue of same sex unions to that of discrimination on the basis of race does little service to the legacy of the civil rights movement, and ignores the history of race relations in this country,” Catterson wrote. “How can one consider the horror of the Civil War and the majesty of the Emancipation Proclamation in the same breath as same-sex unions?”
He elaborated on that point.
“Unlike the history of the anti-miscegenation statutes struck down in Loving,” he wrote, “which clearly stigmatized African Americans as inferior to Caucasians, plaintiffs identify nothing in the history of New York’s marriage statutes suggesting that they were ‘intended to promote any hostility between the sexes, preserve any unequal treatment as between men and women, or perpetuate any societal or cultural bias with regard to gender.’”
Peculiarly, the above quote was ripped out of an odd context, a portion of the Texas Court of Appeals decision in Lawrence v. Texas, which was, of course, overruled by the U.S. Supreme Court in 2003, and which was not referring to marriage at all, but rather to the argument that Texas was engaged in sex discrimination when it outlawed same-sex sodomy but not opposite-sex sodomy. Indeed, as with Williams’ opinion, much of the Catterson concurrence relies on overruled, outmoded, or dissenting opinions.
As to outmoded opinions, Catterson, unlike Williams, relied heavily on the Supreme Court’s refusal to review Baker v. Nelson, a 1971 Minnesota court opinion that denied a same-sex marriage claim. In those days, a state appellate decision denying a federal constitutional challenge to a state statute was entitled to U.S. Supreme Court review, rules since changed by law. The Supreme Court would dispose of many of those cases by indicating that review was denied “for want of a substantial federal question,” as it did in 1972 in the Baker case. This would be interpreted as a pronouncement by the Supreme Court that the appealing party’s arguments were without merit.
Many of the recent unsuccessful marriage rulings have pointedly relied on Baker as establishing that there is no merit to a federal constitutional claim for same-sex marriage. Catterson, arguing that on this point the New York State Constitution provides no greater rights than the federal constitution, treats Baker as a decisive basis to reject the plaintiffs’ claims.
Addressing the equal protection argument, Catterson concedes that the marriage law has the effect of disadvantaging gay people, but asserts that this does not matter for constitutional purposes, because only intentional discrimination violates the right of equal protection, and, in his view, the Legislature did not intend to discriminate against gay people by providing marriage only for opposite-sex couples. After all, he points out cheerfully, gay people are free to enter opposite-sex marriages if they want to enjoy the benefits of the institution.
After slogging through the extended diatribe of Catterson, it is a pleasure to read Justice Saxe’s well-reasoned dissent. Among other things, he notes that relying on a 1972 summary affirmation is inappropriate in light of all the constitutional litigation about gay rights that has gone on since that decision, not least the Supreme Court rulings in Romer v. Evans (1996), which struck down a Colorado amendment that barred the state and localities from enacting gay civil rights protections, and Lawrence v. Texas, which voided the nation’s sodomy laws. Saxe also takes aim at many of the other case citations used in the Williams and Catterson opinions, noting that many of the cited cases relied for their reasoning on Bowers v. Hardwick (1986), the notorious Georgia sodomy decision that was overruled in 2003 in Lawrence, and are thus questionable precedents.
More to the point, Saxe effectively points out the utter illogic of the “rational bases” proposed by Williams and Catterson for sustaining the existing marriage exclusion—that the exclusion of same-sex couples from marriage does nothing to further the state’s articulated goals, especially the goal of protecting the interests of children. After all, same-sex couples are also raising children, whose protection should not depend upon how they were conceived but rather on how the families in which they are being raised are treated by the government and society. And excluding same-sex couples from marrying has no logical connection with attempting to bolster heterosexual marriages or channel heterosexual behavior into traditional arrangements.
“Civil marriage is an institution created by the state, and the state makes numerous rights and benefits available to those entering into that status,” begins Saxe’s opinion. “The denial of these rights and benefits to our State’s homosexual residents is contrary to the basic principles underlying our Constitution, our legal system and our concepts of liberty and justice, and perpetuates a deeply ingrained form of legalized discrimination. It misses the point to ask whether the Legislature was purposefully discriminating at the time of its enactment of the challenged statutes. At the time of their enactment the content and purpose of the challenged statutes were founded upon a discriminatory assumption, taken for granted by the Legislature and society generally, that marriage is a right necessarily limited to heterosexuals. The statute ought to be acknowledged and analyzed as the discriminatory provision it is, and rejected as such.”
Saxe takes on every argument endorsed by Williams and Catterson and utterly eviscerates them. He points out how the court is making the same errors that the Supreme Court made in Bowers v. Hardwick, errors pointed out quite forcefully in Lawrence v. Texas when the Court overruled Bowers. The issue is not, according to Saxe, whether the state Constitution guarantees a right of same-sex marriage, but rather whether the Constitution allows the state to exclude one group of people, same-sex couples, from enjoying a right deemed fundamental for everybody, the right to marry.
Saxe’s opinion is actually the longest of the three, but unfortunately he speaks only for himself on this appellate panel. At one time, an appellate division decision that drew a dissent was entitled to review by the Court of Appeals, but those rules have long since been changed to give the highest court discretion about which appeals to hear. One suspects the court may wait to act on Lambda’s request for review until the Appellate Division for the 3rd Circuit, based in Albany, has been heard from, as that court is considering an appeal in three other same-sex marriage cases. News reports of those arguments suggested that the plaintiffs there actually found a more receptive audience from the Albany appeals judges than that exhibited by the Manhattan panel of the 1st Department.
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