Angry New Yorker

Friday, February 18, 2005
Analyzing J. Ling-Cohan's gay marriage decision...

We've finally gotten around to reading New York Supreme Court Justice Doris Ling-Cohan's decision on gay marriage, Hernandez v. Robles, No. 103434/2004, discussed earlier in the month here and here. We're not impressed. For the first 23 pages or so, Justice Ling-Cohan's (hereinafter L—C) work reads much like a law student's moot court brief with nothing out of the dramatic. First, she decides that NY's Domestic Relations Law (DRL) doesn't support same-sex marriage because "both the inclusion of gender specific terms in multiple sections of the DRL, and the historical context in which the DRL was enacted, indicate that the Legislature did not intend to authorize same-sex marriage." Id. at 17.

But then the issue is to "whether the restriction of marriage to only opposite-sex couples violates the due process and/or the equal protection clause of New York’s Constitution." Id. at 22. And here Justice L-C veers sharply off the road. Although she rightly notes that "the protections of the New York Constitution extend beyond those found in the Federal Constitution, which sets the floor, but not the ceiling, for the rights of the individual," id., this isn't a mandate for the judiciary to become a super-legislature.

While Justice L-C recognizes that the right to marriage falls within a "liberty right" issue she completely runs off the rails in her due process analysis. Calling upon large doses of dicta from Supreme Court decisions, id. at 24-25, she compares same-sex marriage restrictions to racial restrictions on marriage. Following her rationale, it's difficult to see how any restriction on marriage would be constitutional within the issue of "whether the right to marriage is a fundamental right entitled to due process protection, both as a liberty right generally and, more specifically, as a privacy right. " Id. at 25.

In some very squishy logic, Justice L-C then returns to the right of privacy to link due process and privacy to a very broad right to marry, ironically calling upon Justice Kennedy's reference in Lawrence v. Texas, 539 U.S. 558, 574 (2003), to the much criticized "sweet mystery of life" passage by O'Connor, Kennedy and Souter in Part II of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833,851(1992). Id. at 27-28.

This reliance on the Lawrence language is even more ironic as Kennedy expressly stated elsewhere in Lawrence v. Texas that his argument was expressly not to be construed as supporting same-sex marriage, noting:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage.

Lawrence, 539 U.S. at 585 (emphasis added)

And as Justice Scalia sharply noted in dissent in Lawrence, "[w]e have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called 'heightened scrutiny' protection--that is, rights which are '"'deeply rooted in this Nation's history and tradition. . . ."'" [ed. note - clearly same -sex marriage cannot by any logical conclusion be viewed as "deeply rooted in this Nation's history and tradition" – though Justice L-C disagrees].

More confusing to the layman’s understanding, however, is how the court's conclusion that since the "right of privacy protects against unwarranted governmental interference with personal decisions relating to marriage" Hernandez v. Robles, at 29, this then bootstraps into a right to same-sex marriage.

In reaching her ultimate conclusion Justice L-C, however, keeps splitting hairs until she frames the fundamental right to marry analysis as "who may lawfully enter into a marriage relationship" and the question of "the right to choose whom one marries." Id. at 31. The Justice then decides that the obvious right that one may marry a person of one's choice extends to a person of the same sex under a "personal autonomy" rationale that "clearly falls squarely within the contours of the right of privacy articulated in Crosby, 57 NY2d at 311-12." Id. at 32.

Under this tortured stretching, Justice L-C next frames the question as:

Because the exclusion of same-sex couples from eligibility for civil marriage infringes the fundamental right to choose one's spouse, such exclusion may be sustained only if it serves a compelling state interest.

Id. at 33.

Didn’t Supreme Court Justice Kennedy just say that “preserving the traditional institution of marriage” was a legitimate state interest? Granted the magic words “compelling state interest” equate to the imposition of strict scrutiny in a constitutional analysis, whereas a “legitimate” state interest equates to generally a much lower rationale basis level of scrutiny. And granted states can confer broader rights under their own constitutions then under the U.S. Constitution, but the problem remains as we’ll see.

An additional problem for Justice L-C is she’s mixing apples and oranges here – throwing the fundamental right to marry and the right to choose who one marries into her hat along with the apparent extension of this fundamental right and the privacy right of adults to, then, presto-chango, pull out of her hat a NYS constitutional right of same-sex couples to marry, which is hardly a right “deeply rooted in this Nation's history and tradition. . . ." You see, she’s applying the strict scrutiny to the fundamental right of “marriage” and not the same-sex restriction component at issue. Whew! David Copperfield never had such magic in his bag.

But it gets worse. A major entire basis for Justice L-C’s conclusion that there is no compelling state justification here to deny marriage to same-sex couples hinges on the definition of “spouse.” Or rather her blatant redefinition of the word spouse to encompass marriages where both spouses are of the same sex. Having admitted that the legislature very clearly in NYS’s DRL and EPTL laws intended the word “spouse” in the context of marriage to be parties of different sexes, “[t]his Court concludes that, notwithstanding the absence of an express exclusion, the DRL does not authorize same-sex marriage,” id. at 18, Justice L-C none-the-less takes this constitutional analysis round-a-bout to arrive at a conclusion that was clearly forestalled by plain legislative intent. This, my friends, is the definition of judicial activism.

Her logic is thus: marriage is a fundamental right, which includes the right to choose one’s better half; this fundamental right is subject to strict scrutiny where any restrictions on it must be narrowly tailored to address a compelling state interest. And since principles of tradition can no longer be a compelling state interest, ipso facto, any restrictions on same-sex marriage are therefore unconstitutional.

To back up this conclusion Justice L-C cherry picks from other states’ decisions, from concurrences of Supreme Court decisions (which, by the way, for those who haven’t been to law school, are NOT part of the actual holding, but persuasive dicta), and from, frankly, her own circular conclusions and the stories of same-sex plaintiffs and such who’ve adopted children, etc.

In changing such a fundamental societal institution as marriage you’d rationally expect the burden to be on the parties seeking to redefine marriage to conclusively demonstrate the redefinition poses no harm, but Justice L-C conversely places the burden on the defendant to state that “[w]hile eloquently praising the indisputably central role that marriage plays in human life, neither defendant, nor amici indicate how that role would be diminished by allowing same-sex couples to marry, nor how the marriages of opposite-sex couples will be adversely affected by allowing same-sex couples to marry.” Id. at 37. The trouble is this isn’t the point, but a mere diversion.

However, read this:

“Excluding same-sex couples from marrying may, in fact, undermine the State’s interest in providing optimal environments for child-rearing, in that children of those families are then not afforded the same legal, financial and health benefits that children of married couples receive.”

Id. at 38.

The fact that we, as a society, permit single parents and same-sex couples to adopt children, is now justification for not extending the benefits of marriage to all parents? By this logic a single-parent should be able to be recognized as "married" (to whom I leave for another day) in order to get these self-same “legal, financial and health benefits that children of married couples receive.” Why not, right? Or is Justice L-C accepting that the definition of “marriage” does have some legitimate and/or compelling limit? In her lexicon marriage is then two people exclusively; different sex, same-sex it’s all the same. But how we can then deny the children in single-parent homes the “benefits of marriage” if the benefits are the be-all and end-all of obtaining marriage? Perhaps the state could step in as the other phantom, non-gendered spouse in single-parent marriages. Hello Mr. New York, and how are you today Mrs. New York?

But further, Justice L-C accepts here that New York does indeed have a state interest in providing “optimal environments for child-rearing.” And if this state interest is compelling, and the state decides that an optimal environment is in a traditional marriage of different sex couples, then state preference and support for same-sex marriage strikes me as either a legitimate or compelling reason for restricting marriage to same-sex couples. But Justice L-C simply whistles past the graveyard here and pooh-pooh's any such rationale by equating same-sex marriage restrictions with restrictions on same-sex sodomy. I kid you not. Justice L-C states:

[T]he question is not, . . . whether same-sex marriage is so rooted in our traditions that it is a fundamental right (it is not so rooted, of course). Indeed, to ask whether same-sex marriage is a fundamental right is to make the mistake that the Supreme Court criticized in Lawrence (539 US at 558), when it overruled Bowers v. Hardwick (478 US 186 [1986]).

* * *

Similarly, in the present case, the "liberty at stake" that is fundamental is the freedom to choose one's spouse. See id. at 558. Thus, for the State to deny that freedom to an individual who wishes to marry a person of the same sex is to deny that individual the fundamental right to marry.

Id. at 42-43.

Still scratching your head? Well, I had to stop my fisking at page 45, after Justice L-C flatly concluded “[m]arriage is no more limited by the historical exclusion of same sex marriage than it was limited by the exclusion of interracial marriage. . . ” with 18 more pages to go in her opinion. Justice L-C’s analysis of equal protection, frankly, boggles the mind and would get her a failing grade on this July’s NY bar exam. While I read the entire 62-page opinion very carefully, nothing in it from this point on changed my mind that Justice L-C was utterly incorrect in her holding.

As her decision is now on appeal to the New York State Court of Appeals, New York’s highest state court, and I can rattle off half-a-dozen reasons to reverse, I expect the Court of Appeals to set Justice L-C straight in short order.

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