I hope I won't be chastised for doing a diary on Hernandez v. Robles, the New York Supreme (trial-level) Court decision that has held that prohibiting same-sex marriages violates due process and equal protection rights under the Constitution of New York. It was reported in in several diaries last week.
Having had the opportunity to read the judge's entire decision this morning, however, several things stood out that I wanted to comment on.
My first, and broadest comment is that from my point of view -- I am a New York lawyer, with nineteen years' experience -- Justice Ling-Cohan's opinion is wonderfully well-reasoned, and seems to this country lawyer to be very strong on the law, and is anything but a merely moral argument. The judge may have gone out on a limb, but she is sitting on what looks to me like a very sound one.
More beneath the fold.
My second remark is to express admiration, particularly, for the way in which the decision addresses the two "state interests" posted by the defendant as justifying the ban on same-sex marriage. The two interests in question are tradition, and ensuring consistency with federal and other states' laws. I have nothing against "tradition," per se, but in reading the court's treatment of these concepts, it seemed to me that the arguments against permitting same-sex marriage were so trivial as to be almost undeserving of the fine rebuttal given them.
The New York judge quoted one Judge Downing, of the Superior Court of Washington, in a case known as Andersen v. Kings County (2004 WL 1738447, for you lawyers out there). This paragraph, I think, strikes the nail on the head, and truly addresses the concern of many people -- let us allow that most of them are well-meaning -- concerning same-sex marriage as a threat to "traditional" marriage:
"Some declaim that the institutions of marriage and family are weak these days and, in fact, stand threatened. Any trial court judge who regularly hears divorce, child abuse and domestic violence cases deeply shares this concern. It is not difficult, however, to identify both the casues of the present situation and the primary future threat. They come from inside the institution, not outside of it. Not be be too harsh, but they are a shortage of commitment and an excess of selfishness. Before the [Washington] court stand eight couples who credibly represent that they are ready and willing to make the right kind of commitment to partner and family for the right kinds of reasons. All they ask for is the state to make them able . . . There is no worthwhile institution that they would dishonor, much less destroy."
I don't entirely agree with the language just quoted, as I think some divorce "reforms" of recent years have undermined the institution, and that marriage is threatened "from without," whenever economic circumstances make it difficult or impossible for couples to sustain themselves without working too many hours, and incurring too much debt.
That said, I agree that "shortage of commitment and an excess of selfishness" nevertheless occupies a place at or near the top of the list, and I agree even more strongly that nothing about letting gays and lesbians marry ought to be seen as threatening in the slightest to heterosexual couples. If one reads the entire decision in the New York case, I don't even see how one could reasonably argue to the contrary.
In Justice Ling-Cohan's treatment of the due process issue, I liked especially the discussion of how marriage is a fundamental liberty, and the analogies she draws to Loving v. Virginia (1967), the Supreme Court decision that struck the anti-miscegnation laws then in effect in many states. How bizarre to recall that inter-racial marriages were illegal in something like 17 states just 40 years ago, and such marriage, although legal, were pretty exotic even outside the South.
Another quote from Hernandes v. Robles (I omit most citations):
"Defendant's historical argument is no less conclusory than amici's [the arguments proferred in a "friend of the court" brief] tautological argument that same-sex marriage is impossible, because, as a matter of definition, "marriage" means, and has always meant, the legal union of a man and a woman. Further, the premise of that argument is factually wrong; polygamy has been practiced in various places and at various times, for example, in the Territory of Utah."
"Moreover, even if the premise of amici's argument were correct, the conclusion that amici draw from it would be invalid. '[I]t is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been.' [citing the Goodwin case, the Mass. Supreme Judicial Court decision that struck that state's ban]. '[A]n argument that marriage is heterosexual because it 'just is' amounts to circular reasoning. It sidesteps the entire analysis.'" [Citation from a case in the Supreme Court of Hawaii].
I at first thought "civil unions" ought to be an acceptable compromise, but for some time now I have seen (thanks to a gay cousin of my wife's) that that isn't equality, and nothing less than equality should be acceptable. Even so, as a middle-aged straight guy, with no other close relations or friends who are gays aspiring to marry, this hasn't been (and still isn't) my #1 social or political issue.
Still and all, I found the decision almost breathtaking and, certainly, inspiring. I commend reading the entire decision to everyone who can get a copy (it certainly will find its way online very soon, I'm sure).
Bravo, Justice Ling-Cohan!