Gay marriage struck down in New YorkYesterday, New York's highest judicial body (called the Court of Appeals) upheld the state law prohibiting gay marriage. The court ruled that such a ban was not unconstitutional and that it should be up to the legislature to decide.
The court's chief judge, Judith Kaye, authored the dissent. In it, she wrote that the close decision 'retreats' from the state's tradition of equal rights.
Under our constitution, discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples.
Like most other states and the US as a whole, New York's constitution has an equal protection clause Article 1, Sec. 11 begins:
No person shall be denied the equal protection of the laws of this state or any subdivision thereof.
Though the court ruled that this constitution provision to law-abiding gays can be overruled by a simple majority vote of the legislature.
This ruling is surprising since the conservatives here in NY have been whining that the Court of Appeals is too liberal and that a Democrat win in this year's gubenatorial election would make it worse.
Attorney General Eliot Spitzer, favored to become the Democrat nominee for the governor's race, had criticized localities that had performed gay marriage in part to provoke such a judicial case. It is unclear if Spitzer personally opposes the legalization of gay marriage or if he was merely speaking out in defense of respect for the law. (If so, it's refreshing to have an attorney general who respects the law)
The irony is that in 2002, legislation was approved that banned discrimination based on sexual orientation in housing, education, employment, credit and public accomidation. The bill was approved by the Republican state Senate and signed by the GOP governor. Many hope that lawmakers will do the right thing and extend equal rights to gays legislatively.
Many hope that this might occur, especially if Spitzer becomes governor and Democrats win control of the state Senate, both of which are possible this November. It would be a long shot, since even if the Democrats win the upper chamber, it would almost certainly be by a razor thin margin. Some even theorize that even if the GOP retain control of the Senate, then that might improve the chances of passage too. Because with a small majority (presently 35-27), then Republicans would be under pressure to not alienate moderate suburbanites who votes are critical to the balance of power in the chamber. That tends to be the only way moderately progressive legislation can get through the Senate.