NY's high court makes the right decision.

[Caveman_Nick]

This is not their job to change

 

Judge Robert Smith said New York's marriage law is constitutional and clearly limits marriage to between a man and a woman.

 

Any change in the law should come from the state Legislature, he said.

[cre8tiff]

Edited July 6, 2006 by cre8tiff

[Caveman_Nick]

It would be the right decision by the state legislature of New York to make the civil rights of all of the citizens of New York equal. All New Yorkers should be entitled to enter into a civil union with equal rights under the law. And that should be it for every one. Get married in a church.

 

This will be an interesting test of the red state, blue state paradigm. The question is if other states will follow New York's lead or Massachusetts' lead.

[Caveman_Nick]

 

 

Was this supposed to mean something?

[skins]

What about section 11 of this?

 

It seems that NY's marriage law does not comply with the above. Who is supposed to enforce what I linked to? The state legislature or the state judiciary?

 

That decision is a bs copout.

[Caveman_Nick]

What about section 11 of this?

 

It seems that NY's marriage law does not comply with the above. Who is supposed to enforce what I linked to? The state legislature or the state judiciary?

 

That decision is a bs copout.

 

 

 

You are certainly more versed than I am in this, but isn't 'civil rights' for the purposes of section 11 defined both in section 11 and also throughout the document?

 

And more to the point, isn't the court saying that as the law is written homosexual marriage is not one of those protected rights? They are telling the people that this part of the law needs to be rewritten in order for change to happen.

 

Why do you want the courts to have the power to rewrite the law? Do you hate America?

[skins]

You are certainly more versed than I am in this, but isn't 'civil rights' for the purposes of section 11 defined both in section 11 and also throughout the document?

 

And more to the point, isn't the court saying that as the law is written homosexual marriage is not one of those protected rights? They are telling the people that this part of the law needs to be rewritten in order for change to happen.

 

Why do you want the courts to have the power to rewrite the law? Do you hate America?

 

 

I dont want the courts to re-write the law--I want them to invalidate it because it is unconstitutional under both the New York and US Constitutions. Read the first sentence of Section 11 again and please explain how granting legal rights to certain persons based on their gender provides "equal protection" under the law.

 

That issue isnt whether "homosexual marriage" is a protected right, but whether the government can treat adult citizens differently under the law based on their gender alone (or sexual orientation, if you want to take that route). Marriage is a contractual relationship between two individuals that grants legal rights and protections. That being the case, there is no reason it should be denied to certain citizens based on their gender or sexual orientation. Or those legal rights and benefits must be denied equally to all. That would make the point moot.

 

But the right to marry is a fundamental right and is also a freedom recognized by the US Supreme Court (See the Loving decision in the late 60's--thats right, the late 60's--invalidating Virginia law making marriage blacks and whites illegal). That implicates the due process rights.

 

In Vermont and Massachussetts, the highest courts have recognized that equal protection argument, and the US Supreme Court will eventually, it is only a matter of time. That is why the Typical Republican idiots are pushing for a Constitutional amendement--they know denying these legal rights and benefits to Americans based on gender/sexual orientation is unconstitutional and that it is only a matter of time before the courts catch up with the Constitution.

 

By the way, New York recognizes gay marriages which are valid in other states and allows gay couples/people to adopt.

 

Here is the opinion. Note that the court applied a rational basis standard instead of a heightened or strict scrutiny standard. That was a mistake in my opinion. Frankly, I think the main opinion is crapola, condones unconstitutional discrimination based on gender and sexual orientation, violates the due prcess rights of American New Yorkers, and the Chief Judge's dissent is right on the money. It follows the main opinion after page 22 of the concurring opinion.

 

The Chief Judge gets the proper issues and applies the proper legal standards. Eventually, most legal scholars agree, that view will be the common one in this country. But these things take time. Read the Chief Judge's analysis of miscegenation and Loving. Very revealing.

Edited July 6, 2006 by skins

[Caveman_Nick]

I dont want the courts to re-write the law--I want them to invalidate it because it is unconstitutional under both the New York and US Constitutions. Read the first sentence of Section 11 again and please explain how granting legal rights to certain persons based on their gender provides "equal protection" under the law.

 

not to nitpick, but since when did gender == sexual preference? Are we going to officially expand the number and definition of genders to 4: Male, Female, Homosexual Male, Homosexual Female?

 

That issue isnt whether "homosexual marriage" is a protected right, but whether the government can treat adult citizens differently under the law based on their gender alone (or sexual orientation, if you want to take that route). Marriage is a contractual relationship between two individuals that grants legal rights and protections. That being the case, there is no reason it should be denied to certain citizens based on their gender or sexual orientation. Or those legal rights and benefits must be denied equally to all. That would make the point moot.

 

I disagree. The issue is most certainly what is and is not a protected right, how protected rights are defined and by what body.

 

I don't think we disagree on what should and shouldn't be protected under the law in this case, I think we just disagree on the roles of the legislature and the courts. The precident has been set already in cases like this with issues like Universal Suffrage and the Civil Rights act. Why do you find it to be such a bad thing that people want these legal precidents to be followed?

 

 

But the right to marry is a fundamental right and is also a freedom recognized by the US Supreme Court (See the Loving decision in the late 60's--thats right, the late 60's--invalidating Virginia law making marriage blacks and whites illegal). That implicates the due process rights.

 

In Vermont and Massachussetts, the highest courts have recognized that equal protection argument, and the US Supreme Court will eventually, it is only a matter of time. That is why the Typical Republican idiots are pushing for a Constitutional amendement--they know denying these legal rights and benefits to Americans based on gender/sexual orientation is unconstitutional and that it is only a matter of time before the courts catch up with the Constitution.

 

By the way, New York recognizes gay marriages which are valid in other states and allows gay couples/people to adopt.

 

Here is the opinion. Note that the court applied a rational basis standard instead of a heightened or strict scrutiny standard. That was a mistake in my opinion. Frankly, I think the main opinion is crapola, condones unconstitutional discrimination based on gender and sexual orientation, violates the due prcess rights of American New Yorkers, and the Chief Judge's dissent is right on the money. It follows the main opinion after page 22.

 

The Chief Judge gets the proper issue and applies the proper legal standards. Eventually, most legal scholars agree, that view will be the common one in this country. But these things take time. Read the Chief Judge's analysis of miscegenation and Loving. Very revealing.

 

 

I will read it, but I would like you to explain how this has anything to do with gender discrimination? Sexual preference is omitted in the equal protection clause. I want that to be changed, and the court is not the place to change it.

[skins]

not to nitpick, but since when did gender == sexual preference? Are we going to officially expand the number and definition of genders to 4: Male, Female, Homosexual Male, Homosexual Female?

 

Gender does not equal sexual preference. But prohibiting someone from marrying because of their gender is creating a distinction in the law based on gender. Thus, this NY marriage law is a gender based law where the gender classifications arise form sexual preference. If it makes it simpler, remove sexual orientation from the equation and analysis altogether and ask the following: Should the government be allowed to tell someone they cannot marry the person of their choice because of their gender? The only logical answer is no.

 

I disagree. The issue is most certainly what is and is not a protected right, how protected rights are defined and by what body.

 

The due process issue concerns the fundamental right to marry of every American. By asking if there is a protected right to "homosexual marriage" you are turning the constitutionally recognized right to marry on its head. Every American has the right to marry subject to certain limitations (incest, age and gender are the three primary barriers now in place). How is it constitutional that a person cannot marry the person of their choice based on gender? All of the arguments made in support of this position are the same ones we heard in the 60's in the miscegenation law fight. If the government can limit your fundamental right to marry based on the gender of one or both participants, why cant they do it based on race, ethnicity, religion, etc.? Explain the difference to me, please.

 

I don't think we disagree on what should and shouldn't be protected under the law in this case, I think we just disagree on the roles of the legislature and the courts. The precident has been set already in cases like this with issues like Universal Suffrage and the Civil Rights act. Why do you find it to be such a bad thing that people want these legal precidents to be followed?

I will read it, but I would like you to explain how this has anything to do with gender discrimination? Sexual preference is omitted in the equal protection clause. I want that to be changed, and the court is not the place to change it.

 

 

I think you fundamentally misunderstand the roles of the courts and legislature. There are no legal precedents I dont want followed--I want the ultimate law, the Constitution, followed. And gender is a prohibited category with regard to discrimination under the law requiring a heightened scrutiny beyond a rational basis. As the chief judge notes, this marriage law creates a distinction between people based on gender: those who can and cannot legally marry. The government has to be able to justify why the distinction promotes a governmental interest. The two interests given by the majority are ludicrous, but maybe you want to try. The majority opinion is incredibly flimsy.

Edited July 6, 2006 by skins

[Caveman_Nick]

Should the government be allowed to tell someone they cannot marry the person of their choice because of their gender? The only logical answer is no

 

I agree with that. I always have, and am not arguing against it.

 

I still want the law written appropriately and not interpreted inconsistently by the courts.

 

[skins]

I agree with that. I always have, and am not arguing against it.

 

I still want the law written appropriately and not interpreted inconsistently by the courts.

 

 

 

They shouldnt interpret it. According to you and me, they should just rule it unconstitutional. They failed in their role.

Edited July 6, 2006 by skins

[AtomicCEO]

I think homos should be able to do what they want.

[Squeegiebo]

I gotta read this. They only applied rational basis review when a fundamental right is at issue? That seems crazy.

[dmarc117]

I think homos should be able to do what they want.

 

 

except on a float in a homo parade!

[AtomicCEO]

except on a float in a homo parade!

 

 

I'm Scottish, not Irish.

[yo mama]

I gotta read this. They only applied rational basis review when a fundamental right is at issue? That seems crazy.

 

That would indeed be the wrong standard of review. State's interest must be "compelling" and the law "necessary" to achieve that interest. The much lower "rational basis" standard would be way off-base.

Edited July 6, 2006 by yo mama

[Perchoutofwater]

With out reading all the lawyer BS, I say let the homos have civil unions, get the state out of the marriage business, and let each church decide who they want to marry, just don't force churches to marry people in lifestyles that are in conflict with there doctrine.

[Squeegiebo]

With out reading all the lawyer BS, I say let the homos have civil unions, get the state out of the marriage business, and let each church decide who they want to marry, just don't force churches to marry people in lifestyles that are in conflict with there doctrine.

 

 

I agree with you, nut note that no one is trying to force churches to marry anyone. That's prohibited by the First Amendment.

[Caveman_Nick]

- 10 -

A. Due Process

In deciding the validity of legislation under the Due

Process Clause, courts first inquire whether the legislation

restricts the exercise of a fundamental right, one that is

"deeply rooted in this Nation's history and tradition"

(Washington v Glucksberg, 521 US 702, 721 [1997], quoting Moore v

City of East Cleveland, 431 US 494, 503 [1977] [plurality

opinion]; Hope v Perales, 83 NY2d 563, 575 [1994]). In this

case, whether the right in question is "fundamental" depends on

how it is defined. The right to marry is unquestionably a

fundamental right (Loving, 388 US at 12; Zablocki v Redhail, 434

US 374, 384 [1978]; Cooper, 49 NY2d at 79). The right to marry

someone of the same sex, however, is not "deeply rooted"; it has

not even been asserted until relatively recent times. The issue

then becomes whether the right to marry must be defined to

include a right to same-sex marriage.

Recent Supreme Court decisions show that the definition

of a fundamental right for due process purposes may be either too

narrow or too broad. In Lawrence v Texas (539 US 558, 566

[2003]), the Supreme Court criticized its own prior decision in

Bowers v Hardwick (478 US 186, 190 [1986]) for defining the right

at issue as the right of "homosexuals to engage in sodomy." The

Lawrence court plainly thought the right should have been defined

more broadly, as a right to privacy in intimate relationships.

On the other hand, in Washington v Glucksberg (521 US at 722-

723), the Court criticized a lower federal court for defining the

right at issue too broadly as a "right to die"; the right at

issue in Glucksberg, the Court said, was really the "right to

commit suicide" and to have assistance in doing so.

The difference between Lawrence and Glucksberg is that

in Glucksberg the relatively narrow definition of the right at

issue was based on rational line-drawing. In Lawrence, by

contrast, the court found the distinction between homosexual

sodomy and intimate relations generally to be essentially

arbitrary. Here, there are, as we have explained, rational

grounds for limiting the definition of marriage to opposite-sex

couples. This case is therefore, in the relevant way, like

Glucksberg and not at all like Lawrence. Plaintiffs here do not,

as the petitioners in Lawrence did, seek protection against State

intrusion on intimate, private activity. They seek from the

courts access to a State-conferred benefit that the Legislature

has rationally limited to opposite-sex couples. We conclude

that, by defining marriage as it has, the New York Legislature

has not restricted the exercise of a fundamental right (see also

concurring op of Judge Graffeo at 5-13).

Where no fundamental right is at issue, legislation is

valid under the Due Process Clause if it is rationally related to

legitimate government interests (Glucksberg, 521 US at 728; Hope,

83 NY2d at 577). Again, our earlier discussion answers this

question. Protecting the welfare of children is a legitimate

governmental interest, and we have shown above that there is a

rational relationship between that interest and the limitation of

marriage to opposite-sex couples. That limitation therefore does

not deprive plaintiffs of due process of law.

 

I'm not trying to beat a dead horse here, but this goes along with what I have said from the beginning on this issue. Because of the newness of the issue and the lack of any supporting tradition, language defining same sex marriage as a fundamental right needs to be added to the laws in question.

 

On gender discrimination...

- 13 -

By limiting marriage to opposite-sex couples, New York

is not engaging in sex discrimination. The limitation does not

put men and women in different classes, and give one class a

benefit not given to the other. Women and men are treated alike

-- they are permitted to marry people of the opposite sex, but

not people of their own sex. This is not the kind of sham

equality that the Supreme Court confronted in Loving; the statute

there, prohibiting black and white people from marrying each

other, was in substance anti-black legislation. Plaintiffs do

not argue here that the legislation they challenge is designed to

subordinate either men to women or women to men as a class.

 

And lastly from the dissenting opinion...

 

Homosexuals meet the constitutional definition of a

suspect class, that is, a group whose defining characteristic is

"so seldom relevant to the achievement of any legitimate state

interest that laws grounded in such considerations are deemed to

reflect prejudice and antipathy--a view that those in the

burdened class are not as worthy or deserving as others"

(Cleburne, 473 US at 440). Accordingly, any classification

discriminating on the basis of sexual orientation must be

narrowly tailored to meet a compelling state interest (see e.g.

Alevy v Downstate Med. Ctr., 39 NY2d 326, 332 [1976]; Matter of

Aliessa v Novello, 96 NY2d 418, 431 [2001]).

 

I think that the problem with this statement and this Justices POV is that the majority of people disagree as to the relevance of the group's defining characteristic, and the characteristic in question has direct relevance in this case. That was pointed out in the majority opinion and is being deemed unimportant here.

[Caveman_Nick]

With out reading all the lawyer BS, I say let the homos have civil unions, get the state out of the marriage business, and let each church decide who they want to marry, just don't force churches to marry people in lifestyles that are in conflict with there doctrine.

 

 

 

So far it sounds like everyone posting in this thread agrees with you. I also agree with the court's decision that the legislature should enact legislation to make it so.

[Squeegiebo]

Marriage is a fundamental right. Skins cited the Loving case for you.

 

This fundamental right is not being offered to all citizens equally.

 

Whether it violates the equal protection clause depends on the level of scrutiny applied. This Court apparently applied rational basis review, which the government always wins. There are stricter levels of review, requiring the government to come forward with better reasons for the unequal treatment. When the strictest scrutiny is applied (applied to racial discrimination and fundamental rights), the government rarely is able to justify the discrimination.

[skins]

How do you exercise yer fundamental right to marry if yer gay? The majority opinion, to justify its choice of a rational basis standard, says that gender is not an issue because the law applies equally to each gender: it says a woman can only marry a man, and a man can only marry a woman. That is some incredibly pathetic logic (which the US Supreme Court rejected in Loving when the state of Virginia said, hey, the law applies equally because a black can still marry a black and a white can still marry a white).

 

The majority opinion is a shameful sidestep and the Chief Judge correctly said as much.

 

So far, perched has the exact same position I do--the libertarian position, I might add--and I think you do too, but yer still flogging and trying to prop up a dead horse by defending this decision. Face it, it is crap and the judiciary should have ruled the law unconstitutional and let the legislature get to work. Now, nothing at all will happen and the outcome you say you prefer--fairness under the law for all Americans--will not result.

 

This is junk all the way around and results in the legislature and the judiciary doing the wrong thing.

Edited July 6, 2006 by skins

[tonorator]

gay guys have the same fundamental right to marry broads just like straight guys.

 

lesbos have the same fundamental right to marry guys just like straight gals.

 

everyone is nice and equal.

 

[skins]

gay guys have the same fundamental right to marry broads just like straight guys.

 

lesbos have the same fundamental right to marry guys just like straight gals.

 

everyone is nice and equal.

 

 

 

That is spain logic and the sure sign of mental returdation and advanced mongoloidism.

[tonorator]

That is spain logic

 

hey man, that is low. even for you.