New York’s Gay Marriage Provision To Set Off Firestorm?

By Justin Gardner | Related entries in Law, New York, Religion, Sexuality

Bravo to Governor Patterson for saying New York should recognize gay marriages from other states, but this has obviously made A LOT of social conservatives angry and they’re not going down without a fight.

First, Patterson’s reasoning…

Paterson issued a memo earlier this month saying that gay New Yorkers who marry where it is legal will have the right to share family health care plans, receive tax breaks by filing jointly, enjoy stronger adoption rights and inherit property.

He cited a February ruling in a New York Appellate Division court in which the judges determined there is no legal impediment in New York to the recognition of a same-sex marriage. [...]

“We have a time-held and time-tested tradition honoring those marital rights,” Paterson said. “I am taking the same approach that this state always has with respect to out-of-state or marriages conducted in foreign governments being recognized here in the state of New York. I am following the law.”

And now the other side…

“The definition of marriage predates recorded history,” said New York State Catholic Conference Executive Director Richard E. Barnes. “No single politician or court or legislature should attempt to redefine the very building block of our society in a way that alters its entire meaning and purpose.” [...]

Earlier Thursday, state Senate Republican Majority Leader Joseph Bruno, who opposes gay marriage, questioned the constitutionality of Paterson’s action but said he hadn’t yet seen the memo.

Bruno said the state’s highest court has found gay marriage isn’t legal within the state.

Is what Patterson did constitutionally unsound? After all, does New York have anything in its state constitution that says a marriage is between a man and a woman? If so, I can see his opponents’ point, but if not they really don’t seem to have a leg to stand on.

Anybody smarter than me wanna help out with this?


This entry was posted on Friday, May 30th, 2008 and is filed under Law, New York, Religion, Sexuality. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

15 Responses to “New York’s Gay Marriage Provision To Set Off Firestorm?”

  1. Jimmy the Dhimmi Says:

    New York have anything in its state constitution that says a marriage is between a man and a woman?

    This is a good point. If there is no such provision, then the lawyers will have to determine whether or not the governor overstepped his authority in granting that executive order. He is not an unelected judge drafting a new legislation, he is an elected representative. If it turns out to be a legal administrative move, then the GOP of New York state should mobilize the public to demand an amendment to its constitution, through electing new leaders.

  2. mike mcEachran Says:

    Go gays! Go constitution! “All men are created FABULOUS”!

    Seriously, Jimmy, on a recent post you said something interesting…seriously…

    We were discussing children’s books about gay penguins. Frightening, I know. So I’ve been purusing “defense of marriage” websites, and I see this subject of ‘gay children’s books’ coming up all the time. That’s what people are really afraid of, isn’t it? Not that gays will marry – I really don’t think anyone honestly cares what gays do with each other. What worries these people is that it means that their children will be exposed to it, and maybe ‘turn’ gay because society accepts it. They’re afraid that little Jimmy will come home and say that he touched Billy’s tallywacker because he read a book about some kids’ two daddies. What do you do then, right, J? Start burning books, I guess.

    Anyway, we need more science to help straights understand that ‘accepting’ homosexuality is not a ’cause’ of homosexuality. And some science even points to the opposite. If you want little Jimmy to want to touch tallywackers for the rest of his life, then tell him he can’t.

    Sorry to go off track, but this has been on my mind ever since Jimmy introduced me to that WONDERFUL BOOK! xoxo!

  3. Tully Says:

    “Is what Patterson did constitutionally unsound?”

    I haven’t seen the memo, but on the face of it yes, it’s unsound. The NY superior court rejected any state constitutional right to gay marriage, and placed the recognition of them squarely on the legislature. That being the the case, it’s up to the legislature, not the governor, to recognize marriages from out of state as conforming to the laws of New York and/or deserving of the reciprocity recognition.

    No doubt appeals and new suits are forthcoming, but this is a perfect example of activism side-stepping the proper legislative process, exactly the kind of thing that could lead to a “protection of marriage” law or amendment, a much higher barrier to clear.

  4. Tully Says:

    Oh, and Barnes is not making a legal argument, but appealling to emotion to ask that no one change the common-law definition of marriage. Not the courts, not the state, not the legislature. Different argument, different questions.

  5. gerryf Says:

    Did I read that right? Jimmy is touching Tully’s billywhacker?

    Well, what is it going to be–so now we need laws to tell us what we can do as well as what we cannot do?

    I thought the conservatives were always pushing that if there is no law against something, it is OK. Since the courts ruled that there is no legal impediment in New York to the recognition of a same-sex marriage….we need a law to say that New York recognizes gay marriages from elsewhere? Do we need a law, by extension, that says New York recognizes heterosexual marriages from elsewhere?

    Boy these lawmakers are going to be plenty busy writing all these news laws giving us permission to cross the street. scratch our bums and drink milk straight from the bottle.

    Given there is no law restricting gay marriages, Patterson is simply clarifying how the state should respond to questions/situations that will normally arise. As the chief executive of the state, it is his responsibility to deal with the day to day operations when there is no legislative direction–and here there is not.

    You’d think the right would be more upset when an executive clearly flouts the law and does whatever he wants in defiance of the rule of law—oh wait, I forgot. When it’s a GOP executive like Bush laws don’t govern him.

    Laws we don’t like, we ignore; laws that don’t exist but we wish we did are implied…..sigh

  6. Jimmy the Dhimmi Says:

    Your welcome. Thanks for the kisses.

  7. Jimmy the Dhimmi Says:

    ADDENDUM:

    You are right that opponents to gay marriage really don’t care what gay people do with each other (or to each other for that matter), rather, people are worried about what their children are being exposed to. However, I wouldn’t say people are so much concerned that their kids will necessarily “turn gay.” I think that they are more weary of the dissolution of the relevance of gender in social institutions.

    A few lesbian couples here-and-there getting knocked-up by a Clay-Aikin popsicle? – fine. Its your kid, it shouldn’t be taken away. Even stable homosexual couples adopting unwanted kids is better than having them bounce around foster care for the rest of their childhood – Ok. But the government establishing gender as an arbitrary biological artifact, like the color of ones skin, is worrisome. Deliberately teaching that to children in order to force a philosophy of a gender-neutral society whereby daddy can be a girl or mommy can be a boy is disturbing.

    People want the special, biological relationship between men and women to be recognized as especially important – the separation and re-union of the human species, and thus, the human condition, through gender in order to procreate future generations.

    If homosexuals insisted on pursuing civil unions simply for the legal benefits, and abandoned an insistence on calling it “marriage,” you might be surprised at how many conservatives would make that compromise.

  8. Tully Says:

    Hey! Hands off my billywhacker! Mongo STRAIGHT.

    “You’d think the right would be more upset when an executive clearly flouts the law and does whatever he wants in defiance of the rule of law”

    That’s exactly what Patterson did.

    “Given there is no law restricting gay marriages, Patterson is simply clarifying how the state should respond to questions/situations that will normally arise.”

    A higher court already ruled on that directly. New York’s laws do not permit gay marriage. So Patterson is trying to indirectly (pardon the phrasing) back-door in recognition of gay marriages done out-of-state into state policy, when by that previous superior court decision that question is up to the legislature and not the executive.

    As I said, expect appeals. Worse, expect backlash that could make it impossible for New York to recognize gay marriage in any form whatsoever, wherever performed, for the indefinite future. Same backlash to activism that has resulted in over forty states passing very explicit laws and amendments barring any such recognition.

    Not only are activists not so good at recoginizing backlash potential, they seem to be short on math skills.

  9. khaki Says:

    Wow. I can’t believe I’m about to write this, Jimmy: I totally agree with you. (If anyone lives on a farm, your pigs are flying away right now.)

    Back in the 90s sometime, we had civil unions in the bag. And then some national gay organization got together and decided ‘gay marriage’ was the new holy grail – and that’s when the extreme right went completely berserk. I totally agree that the problem with it (in the right’s eyes) is the gender issue exactly as you describe it. Spot on. HOWEVER, it’s still a fear-based position. The idea that “gay-marriage” threatens gender identity, but “civil-unions” does not is kind of silly. But to your point, at least with “civil-unions” in place, people can teach their children that “marriage” is between a boy and a girl, thereby preserving traditional gender roles. It just seems so ridiculous, doesn’t it? Do people really need their gender recognized as special? Can’t we just give all the boys a star-sticker, and all the girls a moon-sticker and be done with it? There – we’re all special!

    Anyway, I think you’re right, as silly as it seems to me. And if anyone had asked me, I’d have said that civil unions were just super.

  10. khaki Says:

    The pur-pose of maaaan is to
    love a woman and the purpose of a woman is to
    LUV a ma-a-an
    So come on baby, let’s start to-day
    Come on baby let’s play –
    The ga-ame of luv – lu-uv – lu-uv – luv luv luv luv luv love!

    ( a little tune for ya )

  11. wj Says:

    Tally, can you explain how recognizing gay marriages which were legally conducted elsewhere is LEGALLY different from recognizing interracial marriages which were legally conducted elsewhere? Which, it would appear, it would have to be in order to be “constitutionally unsound.”

    There was a long period, after all, when those were legal in some states and not in others. But were (with a very few exceptions) recognized even in states where conducting them was illegal.

  12. Tully Says:

    *Tally, (sic) can you explain how recognizing gay marriages which were legally conducted elsewhere is LEGALLY different from recognizing interracial marriages which were legally conducted elsewhere?*

    Absolutely. Piece o’ cake! There is NO legal tradition of a right to marry someone of the SAME sex, no overriding federal-level constitutional principle involved. It would be a new right, not an affirmed and extended application of an existing one, as the previous interracial decisions were. NY precedent follows the same lines, yet Patterson is trying to use the “reciprocity” claim to recognize a (to date in New York) an explicitly non-existing “right.”

    Because interracial marriage between a man and a woman is a recognized and settled legal right in federal law per the Loving decision among others, New York is required to recognize it, as are *all* fifty states. SETTLED LAW based on anti-discrimination decisions. The decisions which rejected laws barring interracial marriage as unconstitutional explicitly relied on the man/woman definition of marriage as enshrined in many centuries of Anglo-American law and legal tradition. They said that, pursuant to the 14th Amendment, one could not deny the right of a MAN and a WOMAN to marry each other on the basis of race. No one is denying gays the right to marry SOMEONE OF THE OPPOSITE SEX on the basis of their sexual preference here. No discrimination, no application of that federal standard. Gays have the same right to marry someone of the opposite sex in NY as anyone else does–it’s just not all that useful a right for them. So the interracial example is simply irrelevant–what gays want is a new right in law, not one previously existing that is being denied by dsicrimination.

    On the principle of reciprocity, NY has in the past recognized other marriages which were not legal in New York–but they were always marriages under that traditional definition of a two-person man/woman marriage–an exisiting right, not a new one. Still, they are not under federal law in any fashion BOUND to recognize such if they are against NY law, though they ARE bound under SCOTUS decision to recognize interracial marriage regardless of any NY miscegenation stautes. Outside that standard, the choice is explictly up the NY legislature. Despite claims to the contrary, the “full faith and credit” clause does not apply in this area. Also settled law.

    NY’s previous reciprocity has always been based on that traditional opposite-sex definition of marriage. Gay marriage does not qualify as “marriage” under NY law until and unless the legislature says so, per relevant decision from a higher NY court than the ones involved in these two decisions, both of which sidestepped that previous higher-court decision. If it is not “marriage,” then it can’t be reciprocated. Gay marriage also does not fit into the federal anti-discrimination standards, so there is no higher constitutional obligation either.

    Remember I’m all in favor of consenting adults making their own decisions about their family arrangements. But my personal preference for what should be does not constitute nor color my knowledge of the legal arguments.

  13. wj Says:

    First, apologies for the typo — I really do know that it’s Tully, not Tally.

    Interracial marriage is a settled matter of Federal law per Loving. Now. But for a century it was not so. In some states, interracial marriage was legal. In others it was illegal. Further, in some of those where it was illegal, interracial marriages from states where it was legal were still recognized. In others (including Virginia — hence the origin of Loving) even valid marriages from elsewhere were not recognized. Obviously, there was no established Federal requirement to recognize such marriages, else Virginia and others would not have felt free to ignore them. And those states which did not recognize them show no signs of having felt that they were flouting Federal law — they appear to have felt that they were merely exercising their legal rights under Federal law.

    Now what was at issue, it seems to me, was simply the definition of “marriage”. In states where interracial marriage was illegal, and where such marriages from elsewhere were illegal, the very definition of marriage was NOT “one man and one woman”, but rather “one man and one woman of the same race.” You may not see that difference as night and day, but those who demanded and supported it certainly did. And saw any hint of change as the first step on the slippery slope to the destruction of marriage and the family.

    In the case of same-sex marriage, the definition of “marriage” is again central to the issue. Which would appear to be why the California Supreme Court spent much of its recent decision on the subject citing, and quoting, its decision 60 years ago on interracial marriage.

    Now if New York, in the past, refused to recognize interracial marriages from elsewhere (at least until its own legislature said differently), that’s one thing. Being neither a lawyer nor a historian, I don’t know how New York came to recognize them. Or even if New York allowed them before any other state or nation. But if New York came to recognize interracial marriages from elsewhere via a similar administrative decision, and did not legalize them itself until later, that would appear to be a precedent entirely on point.

    I guess we not only need lawyers in this discussion, we need legal historians. ;-)

  14. Tully Says:

    *In states where interracial marriage was illegal, and where such marriages from elsewhere were illegal, the very definition of marriage was NOT “one man and one woman”, but rather “one man and one woman of the same race.”*

    Well, no, it wasn’t (and it’s certainly NOT the case in New York). The miscegenation statutes banning interracial marriage (in Virginia for the Loving case that would be the Racial Integrity Act of 1924) were seperate from the marriage statutes. And they were *criminal* law. (The Lovings were actually arrested in their own bedroom.) New York’s law is not such an intrusion on the “intimate, private activity” of individuals, as the miscegenation laws were. Rather it is a limitation on access to state-conferred and state-enforced *benefits*.

    The marriage law of New York has been ruled by the highest court in the state to explicitly presume that marriage is between two people of opposite sex (“New York’s statutory law clearly limits marriage to
    opposite-sex couples…”) and that upper court decision in New York clearly laid any right or ability to change that on the legislature, not the executive. The state executive may decide as a matter of policy to confer some of those benefits to state employees in same-sex relationships, but he cannot mandate that everyone else must do so, nor may he confer the non-employment-related benefits without the explicit approval of the legislature.

    Patterson’s memo extends FAR beyond the legitimate executive policy choice of extending “family” benefits to same-sex “married” couples where one partner is employed by the state. By declaring same-sex couples to enjoy ALL the rights and privileges of marriage, it amounts to a profound change in huge portions of state law, affecting everything from inheritance law to health care decisions. And that’s treading on the legislature’s turf. He simply doesn’t have the constitutional authority to mandate such a sweeping change in New York law.

  15. wj Says:

    Thanks for the clarification, Tully.

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