It is never fun to lose, but it is particularly galling to lose in the face of intellectual sloppiness, disregard for logic, refusal to accept widely accepted child development research, and implicitly homophobic assumptions.
Yet, as New York Law Professor Arthur S. Leonard’s analysis of the 4-2 defeat for same-sex marriage rights today at the New York Court of Appeals makes clear, there was plenty of all of that in the opinions put forward by the majority.
Neither the Robert S. Smith opinion for three of the judges nor the concurrence on behalf of two by Victoria A. Graffeo bothered to explain why the surely legitimate state interest in encouraging heterosexual couples who have children, by intention or otherwise, to marry so they can provide protections for those children, is at all compromised by allowing same-sex couples to also enter into the benefits and responsibilities of marriage.
Or as Chief Judge Judith S. Kaye argued, in her dissent: “Correctly framed, the question before us is not whether the marriage statutes properly benefit those they are intended to benefit—any discriminatory classification does that—but whether there exists any legitimate basis for excluding those who are not covered by the law.”
Aware that they premised the rationale for marriage on child-rearing, the majority of course had to deal with the reality of untold numbers of same-sex couples raising children and the preponderance of evidence that those youths turn out more or less the same as children raised in other American households. Here Smith showed a particularly Know-Nothing streak, writing, “The studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences.”
Smith also argues that although the right to marry is fundamental, the right to marry a same-sex partner is not. Because he finds a rational basis for excluding gay couples from marriage, Smith is unwilling to generalize from the right to marry to the right to marry the person of one’s choice. Gay people are not restricted in their exercise of a fundamental right; just like anyone else they can marry–as long as it is to a partner of the opposite sex. This is the smarmy logic of a high school debating team smart aleck.
Kaye, in her feisty dissent had it right—the right to marry the person of one’s choice is fundamental. The majority, she charged, failed even to articulate a rational state interest in barring gay marriage, never mind a compelling one. And, she concluded, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”
All that said, what’s the next step?
The first of course is to press both of the two winning defendants in the case—Mayor Michael Bloomberg and Attorney General Eliot Spitzer—to deliver on their pledge to fight for same-sex marriage rights once they completed what they contended was their obligation, defending the existing state law.
Nothing can happen in Albany unless Spitzer is elected governor in November, that much is clear. What is less clear is how much of a priority he will make same-sex marriage. The testimony of Nyack Mayor John Shields, one of the marriage plaintiffs, that Spitzer told him it would take ten years is not encouraging.
A decade—even five years—is unacceptable. Things need to start moving soon. Assuming that the Democrats this November do not gain control of the Senate—which will never approve gay marriage under Republican Joe Bruno’s leadership—we need action in the state Assembly, solidly Democratic.
That means that Spitzer, and Assembly marriage supporters, including Deborah Glick, Daniel O’Donnell, and Dick Gottfried, need to be willing to push Speaker Shelly Silver, even to the point of pissing him off.
If Spitzer is unwilling to break that egg, he will not be a reliable partner on gay marriage. Surely Bloomberg can play a pivotal role in the battle as a Republican ally, but the game will not advance unless movement begins with the Democrats.
Everyone said we needed to be patient until the Court of Appeals ruled.
Be warned: Our patience is at an end.