Thursday, July 13, 2006

I'm Married, and The New York Court Got It Right

Thanks for all the mazel tovs everyone. I'm glad to see my co-bloggers are keeping this blog active in my absence. Maybe one of these days we'll all start blogging at the same time.

Two weeks ago the Court of Appeals of New York ruled that New York is not obligated to extend marriage recognition to same-sex couples. I blogged about these issues extensively as related to the U.S. Constitution (here, here, here, here, and here), and I'm glad to see the court more or less agreed with my Equal Protection argument.

I'm going to summarize my basic arguments in this post, because thanks to the fast day I'm too tired to write up anything original.

The constitutional argument for SSM generally rests on two clauses of the Constitution: the Equal Protection Clause and Due Process Clause of the 14th and 5th Amendments. The Due Process argument is weaker (although under the NY Constitution it is stronger).

The Due Process Clause of the US Constitution has been interpreted to protect fundamental rights, which are rights that are fundamental and deeply rooted in our history (don't ask how a clause that talks about process can be substantive). In this case the question is whether this clause protects SSM. The Supreme Court has already ruled that the clause protects the right to marry. So the question depends on how one characterizes the right involved: should we view the right as a right to marry that is broad enough to include marriages to someone of the same sex or is it a right to marry a member of the same sex? The latter construction would fail the due process test because no one could argue with a straight face that the right to marry someone of the same sex is deeply rooted in our history. If the right is a broad right to marry, then that right would probably be protected.

State courts have split on this question. I've argued that the proper construction is a narrow right because the concept of marriage is inherently linked to its central purpose, which historically was child-bearing (yes, that purpose might be different today). Since two members of the same sex cannot procreate, it would make no sense for the institution of marriage to cover their union. Therefore SSM would not even fall within the definition of marriage, and would have to be characterized as a separate right and would probably not be protected.

The Equal Protection argument is better. In short it goes like this: Jane can marry Bob but Billy can't. The sole reason why Billy can't is because he's male. Hence the law discriminates against Billy on the basis of his gender.

I would construe the situation differently. While Billy cannot marry Bob because they are the same sex, Jane cannot marry Cindy for the same reason. So what the law does is prohibit people from marrying people who are the same sex, and that isn't a classification on the basis of gender. Similarly situated people are being treated equally.

The primary response to this argument is that it ignores Loving v. Virginia where the Court ruled that Virginia's miscegenation laws were unconstitutional because it wasn't enough that both Whites and Blacks were prohibited from marrying people outside their race (as defined by the law). Mere equal application of a law does not suffice to save it.

I believe the situations are distinct. First, Loving is a case about race; the Court has been much more willing to smoke out racial classifications, because they are usually based on an idea of racial superiority. Moreover, the law was intended to discriminate against Blacks. While some Whites were harmed, the law was primarily aimed at keeping Blacks from "infecting" the White blood line. There was a clear intent to classify based on race.

That is not the case with SSM. Both men and women are equally affected by prohibitions against SSM, and the law was not designed to keep either gender in its place (unless you think marriage was designed to keep women in a gender role, which is an argument I do not buy). In fact when the law was written, the authors probably never even thought this issue would arise. There was no intent to classify based on gender.

Last, one could argue that the law discriminates on the basis of sexual orientation. That's probably a good argument after O'Connor's concurrence in Lawrence v. Texas, but sexual orientation is not a protected class and therefore the state only needs a rational basis for classifying. This test is extremely deferential, and is easily passed.

For more, check out Dale Carpenter's series of interesting posts on the decision.

17 Comments:

Blogger Ezzie said...

Good post. In response to your last argument, why can't someone argue that the law was designed to discriminate against homosexuals, even if both genders are equally affected? This is especially true in regards to laws passed in the last few years, which clearly were designed for that purpose. It's not racial superiority, it's moral superiority.

Personally, I'd take a different tack, which is that the whole idea of marriage is only between a man and a woman. The source for it is strictly religious in nature, as far as I understand, and there's no reason it should apply to two homosexuals. It's almost like playing football with a softball - very nice, but not the same thing. Homosexuals can do whatever they want, have whatever ceremonies they want; they'll just never be married because there's no such concept as it relates to them.

The only difference I can think of to homosexuals in terms of government that marriage effects is taxes. I would argue that there is no discrimination there: They don't fall into the category of being married, so they don't get the benefits - just like a single person. Is the single person being "discriminated" against? No. So why is it viewed as such when the person is gay?

7/13/2006 4:22 PM  
Blogger Charlie Hall said...

'the concept of marriage is inherently linked to its central purpose, which historically was child-bearing '

I don't think that is true. Opposite sex couples have always been permitted to marry even when it was known that they were infertile. That is true in Jewish law, Christian law, and secular law.

'the law discriminates on the basis of sexual orientation. That's probably a good argument after O'Connor's concurrence in Lawrence v. Texas, but sexual orientation is not a protected class '

Actually, sexual orientation IS a protected class in 12 states as of my last count, but (1) O'Connor's concurrence was not accepted by the Supreme Court, (2) in most if not all of those states, the Gay rights laws are narrowly drawn to cover only employment and public accomodations, and (3) courts are justifiedly hesitant to expand protections for protected classes.

Nevertheless the discrimation argument is pretty compelling on an ethical basis. Ezzie, there are real disabilities one faces by not being able to marry ones spouse. Hospitals can refuse to let your significant other visit you. Employers mostly refuse to cover your SO for health insurance -- and if they do, it isn't a deductible expense. (Of course, if the US had universal health insurance, this would be a non-issue.) Joint ownership in the form of tenants by the entirety is not available. Community property laws are not available. The law regarding breakups is vague and can result in messy legal fights with no winner other than the attorneys, especially in child custody battles. This is a real problem and it isn't going away. (But this married straight person would indeed love to be taxed as if he were an unmarried gay person!)

Of course I am looking at this from the basis of secular ethics. Regarding Jewish ethics, there is of course no question that SSM is ussur. But so are an awful lot of other marriages that are legal under secular law: kohein-divorcee, kohein-convert, Jew-non Jew, and a remarriage of a Jew without a get, to name a few. But nobody seems to be upset about them enough to try to make them illegal.

7/13/2006 4:44 PM  
Blogger Ezzie said...

Ezzie, there are real disabilities one faces by not being able to marry ones spouse.

But that's not my point: My point is that those are no different than anybody who is not married. A best friend can be refused visitation as well. My point is that the definition of marriage (and spouse) are specific to man and woman, simply because that's what marriage is. Only a basketball is a basketball: A tennis ball will not be a basketball, even if used for a basketball game, because it's a tennis ball and not a basketball. (Period.)

7/13/2006 6:01 PM  
Anonymous Anonymous said...

Ezzie:

Why do we care what 'marriage' is? If we think that it is a positive idea that a man should be allowed spousal visitation rights if his wife is in the hospital, then aren't you saying that its not as 'good' a thing for a man to have visitation rights to his partner? So for the past 2000 years, it was not called 'marriage'. Isn't your arguement just a semantics arguement? If its a good thing for all monogamous couple to have all the rights associated with marriage, then doesn't that make your point that the English dictionary defines marriage as heterosexual moot? Should you (at least) support civil unions?

And if you think that it is not good that certain monogamous couples should have these rights, then shouldn't the reason be about the harm to society for allowing it, as opposed to the definition of marriage?

7/13/2006 7:46 PM  
Blogger Ezzie said...

Should you (at least) support civil unions?

I think answering this addresses everything else you're asking, so... I don't see why a monogamous couple which wishes to dedicate itself to one another shouldn't be allowed to form some sort of civil union to ensure that they can do things such as visit one another in the hospital.

I do *not* think that there should be same-sex marriage.

7/13/2006 7:50 PM  
Blogger Classmate-Wearing-Yarmulka said...

I don't think that is true. Opposite sex couples have always been permitted to marry even when it was known that they were infertile. That is true in Jewish law, Christian law, and secular law.

There has always been a presumption of fertility. The administrative costs of ensuring each couple is fertile and wishing to have childredn would be enormous.

Correct me if I'm wrong, but I'm pretty sure there's a presumption that two men or two women cannot have a child together.

7/13/2006 11:05 PM  
Anonymous Anonymous said...

... I don't see why a monogamous couple which wishes to dedicate itself to one another shouldn't be allowed to form some sort of civil union to ensure that they can do things such as visit one another in the hospital.

I do *not* think that there should be same-sex marriage.


So my main question is: Why the difference? Are you saying it because you think that, (a) even though we are giving the homosexual relationship equal rights, we/(you) want to make the point that we do not think that these relationships should be encouraged? Or is it (b) a linguistic arguement about the word marriage?

(personally, I have a lot of sympathy to option (a) that I just gave, although I sometimes think that legalization would be better....it depends on the day, I go back and forth...I know lots of people who choose option (b))

7/13/2006 11:34 PM  
Blogger Ezzie said...

I actually choose (a). I think it's a great compromise, really: Those who do not wish to condone homosexuality are showing a clear divide, but there's no discrimination against them.

7/14/2006 2:50 AM  
Blogger Jewish Atheist said...

Since two members of the same sex cannot procreate, it would make no sense for the institution of marriage to cover their union.

So I expect you'll change your mind in 20 years when this is no longer the case? Or will you just rest your conclusion on a different argument then?

7/14/2006 10:05 AM  
Anonymous Anonymous said...

I actually choose (a). I think it's a great compromise, really: Those who do not wish to condone homosexuality are showing a clear divide, but there's no discrimination against them.

OK. I definately understand that compromise. When you had said that "A tennis ball will not be a basketball, even if used for a basketball game, because it's a tennis ball and not a basketball. " I thought you were going by (b).

Shabbat Shalom

7/14/2006 11:30 AM  
Blogger Nephtuli said...

So I expect you'll change your mind in 20 years when this is no longer the case? Or will you just rest your conclusion on a different argument then?

It won't matter in 20 years even if they could procreate. I'm not arguing that marriage only covers couples who can procreate; I'm only saying that one of its central purposes was procreation. The right to be married cannot include people who cannot procreate. Since I do not believe constitutional rights can change, it won't matter in the future.

7/14/2006 6:20 PM  
Blogger Charlie Hall said...

'The right to be married cannot include people who cannot procreate.'

Then why do we allow post-menopausal women to get married?

7/15/2006 11:36 PM  
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