By Henry J. Stern
July 14, 2006

The Court of Appeals 4-2 decision that the New York State constitution does not mandate the recognition of same-sex marriage is now eight days old.  The Court majority (Judges Robert S. Smith, George Bundy Smith, Susan Read and Victoria Graffeo) made it clear that they were not ruling against gay marriage, but that a change of such importance should be made by elected officials, not judges.  The minority (Chief Judge Judith S, Kaye and Carmen B. Ciparick) felt that they were empowered to interpret the state constitution as they saw fit, and they believed it protected gay marriage.  One judge, Albert M. Rosenblatt, recused himself from the case because his daughter was an activist on this issue.

The New York ruling leaves Massachusetts as the only state whose highest court has ruled that its constitution grants gays the right to marry each other.  The Bay State's Supreme Judicial Court ruled 4-3 on November 18, 2003,  in Goodrich v. Dept. of Public Health, 798 N.E.2d 941, that "The Massachusetts constitution affirms the dignity and equality of all individuals.  It forbids the creation of second-class citizens...the arguments made fail to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."  A number of other state courts have taken the opposite position, and it is highly unlikely that more than a handful of states will follow the Massachusetts precedent.  Vermont allows same-sex civil unions, but not marriage, whatever the difference may be.

The New York State constitution says nothing about same-sex marriage because it was unheard of  229 years ago, when the constitution was adopted.  There were undoubtedly homosexuals, male and female, living in New York State at the time, and we assume that some of them engaged in sexual activity, but there is no evidence that they made a public demand to be allowed to marry each other.

Human rights deemed to have been derived from basic constitutional guarantees have evolved in the last two centuries.  Limiting ourselves to Federal cases, five come to mind:

1. Brown v. Board of Education (1954).  The 9-0 decision, written by Chief Justice Earl Warren, that school segregation was unconstitutional, overruled Plessy v. Ferguson (1896).  It is remarkable that the grandson and namesake of the sole dissenting justice in Plessy, John Marshall Harlan, voted the same way his grandfather had 58 years previously, this time joining a unanimous court.  Fifty-two years have now passed since the Brown decision and its effects have been enormous, although enforcement of the decision required Federal troops in Little Rock, Arkansas, in 1957 and elsewhere in the South for some years.

2. Loving v. Virginia (1967).  The Supreme Court unanimously held unconstitutional a Virginia statute barring interracial marriage.  The opinion was written by Chief Justice Warren.  The federal constitution is silent on marriage between the races, but the court held the Virginia law a violation of the equal protection clause of the 14th Amendment.  The court held that only racial discrimination could account for such a state law.

3. Roe v. Wade (1973).  By a vote of 7-2 (majority - Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, Powell.  Minority - White and Rehnquist), the Court found that women have a constitutional right to abortion, and invalidated state laws to the contrary.  Justice Blackmun wrote for the majority: "The right of privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."  Since then, the Court has refused to overrule Roe, although it has limited its scope.

4. Bowers v. Hardwick (1986).  The Court, 5-4, found no constitutional right to private homosexual activity between consenting adults. (Majority - White, Burger, Powell. Rehnquist, O'Connor.  Minority Blackmun, Brennan, Marshall, Stevens.)

5. Lawrence v. Texas (2003).  The Court 6-3, overruled Bowers, and struck down a Texas anti-sodomy statute.  (Majority - Kennedy, Stevens, Souter, Ginsburg, Breyer, O'Connor.  Minority - Scalia, Rehnquist, Thomas.)  Judge O'Connor changed her mind during the 17 years between the cases, and Judge Lewis Powell said that he would have decided Bowers differently if he had it before him again.

These five cases show that opinions on constitutionality of statutes change with time and circumstances.  Although originalists like Justice Scalia and Thomas believe that the constitution means precisely what is said in the document, most judges do not accept that view.  Concepts like due process and equal protection evolve over the years along with society, in the view of many judges.  The issue in the gay marriage cases is what is the rate of evolution, and how far ahead of (or behind) the public should judges go in grafting their own values and beliefs into the constitution they interpret.

We waited a week after the Court of Appeals decision in order to reflect on it.  It is not easy to comment on the case, partly because of the intense feelings that people hold on all sides of the issue.

There are four possible positions on the issue.  One is that same-sex marriage is an inalienable human right, that there is no rational basis for discriminating against people who wish to marry others of the same sex, and that the New York State constitution requires the approval of gay marriage, without regard to past practice.  Two is the opposite position, that gay marriage is an abomination, a violation of nature's law and God's law, and that whatever same-sex relationships may be sanctioned by the state, marriage should not be among them.  Three is to find there is a rational basis for the distinction between same-sex and opposite-sex marriages, based on biology and history, that the decision in a matter of this nature should not be made by the courts, but by elected representatives of the people who comprise the state legislature.  Four is to support gay marriage, but regretfully conclude that it is a legislative issue, at least for the purpose of giving them an opportunity to consider the matter.
 
The court majority, four out of seven judges, took the third course, the two dissenting judges preferred the first.  One judge recused himself.  Depending on who sits on the Court of Appeals, the case could be decided either way.  Hopefully, this will not become a Roe v. Wade issue, with every prospective judicial nominee by the governor facing demands to state his or her position.  Court of Appeals nominees must be confirmed by the State Senate.
 
If the political struggle becomes focused on obtaining two more votes on the Court of Appeals to mandate gay marriage, or preventing judges with that opinion from serving on the court, the result is likely to be continuing strife.  If four votes should be attained, it is possible that political pressure will continue to be applied in order to change the result once more.
 
The best discussions of this case are found in the three opinions by the Court of Appeals judges, to which we have linked.  If you read them, you will learn a great deal about the judges and their reasoning.  Opinions provide grist for constitutional scholars, just as literary works are subject to endless scrutiny, analysis and exegesis by English professors.
 
We will take the liberty of making certain observations which are not dispositive of the subject, but which may be helpful to other people in forming judgments on different aspects of the issue.  We anticipate both agreement and disagreement from our readers, and as is our custom, we welcome your opinions which we will publish on our blog.
 
1. There is nothing in the United States or New York State constitutions about same-sex marriage or opposite-sex marriage.  They were not public issues in 1777, when New York adopted its constitution in Kingston, N.Y., the state's capital before Albany, or in 1787, when the constitutional convention in Philadelphia adopted the United States constitution and submitted it to the thirteen states for ratification.
 
2. Individual rights have gradually been added to the constitution, by the Bill of Rights, and by subsequent amendments, all approved by Congress and ratified by state legislatures.  These amendments abolished slavery, provided for due process and equal protection of the laws, and extended the vote to blacks, women and 18 year olds.  (E.g. the 15th Amendment: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.")
 
3. Individual rights have been added by Acts of Congress over the years.  These rights are then judicially enforced.  Other individual rights have been added by judicial decisions, notably by Brown v. Board of Education, Loving v. Virginia, and Lawrence v. Texas.  There have been thousands of laws and cases, dealing with the rights of voters, soldiers, prisoners, employees, women, ethnic minorities, Jehovah's Witnesses, atheists, flag burners, and many other classes of individuals.
 
4. In many of these cases, the usual style of judicial decision is not to admit that new rights are being created, but to define the case as falling within the rubric of existing law.  The court interprets the statutes or previous decisions as including the rights which are now being provided.  That is the way many judges write, they say they are not deciding anything new or radical, they are simply explaining precedents which apply to the current case.

5. We believe that people of the same gender should be enabled to enter into relationships, sanctioned by the state, which include the rights and responsibilities usually associated with marriage.  What these relationships should be called is up to the individuals who enter into them.  Notwithstanding the Federal Defense of Marriage Act, we believe that same-sex couples who marry where it is permitted by the laws of their states should be treated as married couples for federal income tax purposes.
 
6. Which rights will be granted or denied at a particular time depends on which judges are deciding the cases, and what their political, judicial and possibly sexual orientation happens to be.
 
7. When rights are being enhanced, or new rights are being created, the larger the court majority, the more likely it is for the decision to be accepted by public officials and the people of the state.
 
8. A collateral issue is whether the legislature has been given an opportunity to address the situation and, if so, what it has or has not done.  If the results are close to equal, a legislative solution is preferable to a judicial solution on matters of public policy.
 
9. In a multi-layered system of government such as ours (federal, state and local), it may be helpful to look at the decisions of federal courts and other state courts on this issue or in comparable situations, and what has been the practical result of such decisions.
 
10. If the court is too far ahead of the people, it may create a backlash and diminish public regard for the judiciary.  Sometimes it is necessary for the courts to grant rights that legislators are unwilling to bestow for fear of reprisal by voters.  In protecting of individual rights and freedoms, the courts should meet a higher standard than the legislature.  Fourteen year terms provide more security than two year terms.  When creating new rights, or divining them from a document which does not mention them and was never intended to cover them, the court should act with some regard for other branches of government as well as the opinions of the general public..

In the last half century, the gay community has made enormous progress in its struggle for equal treatment.  Although great legal strides have been made, gay people, particularly youngsters, are often mistreated and abused by others.  In considering legislation or lawsuits on this issue, one must remember the context of discrimination which gays and lesbians have endured for centuries.  The law can not force people to like those who are different, but it can require equal treatment for all, regardless of sexual orientation.  That is a goal which is well worth pursuing.