Angry New Yorker

Monday, February 07, 2005
With Logic Like Her's Who Needs Enemies?

We finally found a copy of Supreme Court Judge Doris Ling-Cohan's decision, Hernandez v. Robles, approving of same-sex marriage in New York City, we discussed here last Friday. A copy of the decision in Acrobat PDF is available here.

Even Jack Balkin, who does support same-sex marriage -- which Angry New Yorker most firmly does not -- harpoons the decision's feeble logic, noting:

Hernandez is a puzzling case on two counts. First, the Due Process argument is that the right of privacy under the New York State Constitution includes a right to marry, which the Court says is the right to choose whom to marry. But the problem is that this would undermine state laws regarding incest and polygamy as well, and the court makes no attempt to distinguish those cases from the case of same-sex marriage. Indeed, at one point in the opinion (p. 45), the court uses the example of polygamy to show that marriage has meant different things at different times and in different places. Perhaps the court really means to say that as applied to same sex couples, the state has provided no compelling reasons for restricting who may marry, leaving to another day the question of whether there would be compelling reasons in cases of incest and polygamy. But if that is the holding of Hernandez-- and perhaps it is the best reading of the case-- the point is nowhere clearly expressed. And what is puzzling about the opinion is that the court does not even seem to spot the difficulty.

The court also says that prohibition on same sex marriages violates New York's Equal Protection Clause. The court does not hold that the prohibition violates sex equality because it restricts the choice of a person's marital partner on the basis of one's sex. Rather, the court holds that the restriction violates the prohibition against discrimination on the basis of sexual orientation. The New York Court of Appeals has not held that discrimination based on sexual orientation requires heightened judicial scrutiny. Nevertheless, the court in Hernandez argued that the state of New York did not offer even a rational basis for excluding same sex couples from marriage. This part of the opinion is quite short and, because it is so short, it is not very convincing.

* * *

What the court says in Hernandez is mostly conclusory.

I have no idea whether this case will be affirmed by the New York Court of Appeals. But if it is affirmed, it will have to be for somewhat different reasons than the court gives here. The court has not given the New York Court of Appeals very much to work with. It will pretty much have to start from scratch.

I've met many extremely fine judges in the New York City Civil and Supreme Court system. Unfortunately, Judge Doris Ling-Cohan is not one of them. Now that we have the decision in hand we'll fisk it carefully.

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