Saturday, October 11, 2008

New York Court of Appeals: Connecticut Supreme Court's Same-Sex Marriage Decision Adds to the Embarrassment

Last week's decision by the Connecticut Supreme Court should be welcome by all who take constitutional equality and fairness seriously. The state's highest court ruled in Kerrigan v. Commissioner of Public Health that same-sex couples are entitled to the same right to marry as are enjoyed by opposite-sex couples. Denying that same right to marry, the 4-3 court held, violates the guarantees of equal protection and due process in the Connecticut Constitution (and this should also be true for the federal constitution). The Connecticut court now joins a very few state high courts that have ruled similarly. But it also joins an historic march against irrational and hateful discrimination--a march which will certainly be vindicated in the not-too-distant future.

The Connecticut Supreme Court's rationale was plain. It was similar to that traditionally used by courts to invalidate discriminatory laws against minority or otherwise vulnerable groups. It went like this: Gays and lesbians have been the victims of vicious discrimination and hate and violence for a long time. So any laws which treat them differently should be closely scrutinized to determine whether there really is some legitimate reason for the differentiation--as opposed to pure discrimination. If there is no legitimate reason--and, thus, the only real basis for the different treatment is bigotry, prejudice, hate, ignorance, etc.--then the law is invalid. It violates constitutional guarantees of equal protection [which prohibits invidious discrimination] and due process [which requires some legitimate basis for a law].

The Connecticut Court subjected the state's opposite-sex-only marriage law to close scrutiny. It examined all the reasons offered to justify the different treatment of same-sex couples. It found all of them lacking in any real justification and, thus, concluded that the differentiation was simply discriminatory. As such, the court ruled that the differentiation was invalid because it violated the Connecticut constitution's promises of equal protection and due process.

Now just contrast that with the ruling of the New York Court of Appeals in Hernandez v. Robles two years ago. The majority of that court did acknowledge that gays and lesbians have suffered discrimination. BUT that discrimination, according to the majority, does not rise (or sink) to the level that would require close scrutiny of laws which treat gays and lesbians differently than others. [Whatever else one might think of the Court of Appeals' ultimate decision in this case, to suggest that discrimination against gays and lesbians has not been bad enough to justify close examination of different-treating laws is nothing short of preposterous.]

Then, the New York court's majority considered any possible legislative justifications for limiting marriage to opposite-sex couples. Two loomed large. Maybe the legislature disallowed same-sex marriages because it believed children were better off with opposite-sex parents. The problem, of course, is that the issue is same-sex marriage, not same-sex parenting. (Also, same-sex parenting is entirely permissible in New York and, moreover, the majority of the court acknowledged it had no support whatsoever for the proposition disfavoring same-sex parenting.)

So on to the second justification. After wading through the court's opinion, this seems to be the one on which the majority actually rested its decision: Same-sex couples cannot accidentally become parents, and the marriage laws are a way of providing family stability for accidental children. Ok, is there any sentient human being who honestly believes that the legislature--in New York or elsewhere, now or in the past--ever dreamed of this as a reason for excluding same-sex couples from marriage? Is there any sentient human being who honestly believes that this is the reason for the opposition to same-sex marriages? Well of course not. [Again, whatever else one might think about the Court of Appeals' ultimate decision in this case, to suggest that the disparate treatment of gays and lesbians in marriage laws is justified by any such hypothetical and highly imaginative legislative purpose is nothing short of preposterous.]

Such justification(s) for prohibiting same-sex marriages cannot be taken seriously. Perhaps there are some legitimate reasons offered by someone somewhere. Some reasons not ultimately grounded in bigotry, prejudice, hate, fear or some other quality which certainly ought not to be given a constitutional imprimatur. Not finding any such legitimate reason, the Connecticut court did what a court should and called the opposite-sex-only marriage law what is was: pure and simple discrimination. By contrast, the New York Court of Appeals desparately stretched to find something on which to cling to save New York's law. And the result is a decision which no serious reader can find even mildly persuasive.

The Connecticut court and the New York court. Is there the slightest doubt which one history will view favorably? Any doubt which one history will view with shame? Which one history will view as part of historical progress of reducing discrimination? Which one history will view as getting in the way?

Connecticut now joins California, Massachusetts, Vermont, and New Jersey as states whose high courts have held that same-sex couples are entitled to equal treatment--requiring the law to recognize either same-sex marriage or civil union. (Marriage in California, Massachusetts and Connecticut; civil union in Vermont and New Jersey.) Then there's New York and its Court of Appeals. Requiring neither. Seeing no discrimination. Another sad indication of what has happened to what was for a long long time among the very strongest, most influential, most progressive courts in the country. Note well, it was the dissent of Chief Judge Judith Kaye that was cited so frequently and approvingly in the Connecticut decision. And it was the New York majority that was derided and dismissed.

In any event, hooray for the Connecticut court and for the others who are leading the way. And here's hoping that better days are coming for the New York Court of Appeals. Days when, among other things, Chief Judge Kaye's dissent is vindicated.