John Wirenius (![[info]](http://l-stat.livejournal.com/img/userinfo.gif){kind=small} jwirenius) wrote,@ 2005-02-05 10:27:00 |
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NYC Gay Marriage Decision
Well, my friend alanesq blogged this before me, but let me join the ranks of those in praise of Justice Doris Ling-Cohan's decision in Hernandez, et al. v. Robles, holding it an impermissible violation of the New York State Consttitution to deny gays and lesbians the right to marry. (text available at http://www.lambdalegal.org/binary-d
The case has precedential value throughout the state, although it is only directly binding on the City of New York, (The Times this morning stressed the limited scope of the area directly controlled by the ruling, but omitted the fact that the decision is "persuasive authority" as to the requirements of the New York State Constitution for all courts in New York State. This is typical of the Times's overall shoddy coverage of legal matters).
(The Times Article is here: http://www.nytimes.com/2005/02/05/nyreg
The ruling seems to me very strongly based on precedent and logic, and not one that is able to be objected to on any legal basis. By which I mean that the line of Supreme Court rulings stating that gays and lesbians are entitled to Equal Protection of the Laws (Roemer v. Evans and Lawrence v. Texas) dovetail neatly with the well-established Warren Court decision Loving v. Virgina, holding that marriage rights may not be denied by a state to members of "discrete and insular minorities" who have been historically subject to state discrimination. In short, gay civil marriage is the only way to treat all citizens equally.
By basing her decision on the state constitution, however, although using federal precedents, Justice Ling-Cohan has insulated her decision from the more conservative members of the Supreme Court reversing her ruling. It's immunized by the "independent and adequate state ground" doctrine of Michigan v. Long from federal court review. (Of course, so was the Florida Supreme Court decision in Bush v. Gore, but the present Supreme Court felt free to disregard 175 years of precedent). Assuming everyone follows the rules this time out, only the New York State higher courts can reverse or affirm.
Many on the religious right (small "rs" here, because I don't mean the rabid right; just members of more traditionalist denominations) may feel threatened by this ruling. With great respect, they should not. Both theologically and legally, it has long been recognized that the civil law and the religious law are and should be different. So, for example, the Supreme Court has long upheld the right of religious groups to disassociate themselves from those who do not conform to their tenets. See Hurley v. ILGO of Boston, 515 U.S. 557 (1995). For a more detailed analysis, see my article "The Last Word," posted at www.wireniusreport.org, originally published in the Hamline Law Review (2000).
Theologically, of course, Jesus himself stated that it was proper to "Render therefore unto Caesar the things which are Caesar's and unto God the things which are God's." (Matt. 19:21). See also Acts 5:29 ("We [Christians] ought to obey God rather than men"); Romans 12:3-7.
All of which acknowledges the distinction between civil and religious law. As does, by the way, St. Paul's exercise of his rights of Roman citizenship to avoid persecution as recorded in Acts of the Apostles. So there is in fact a strong Christian case for separation of church and state, and for the secular law to not track any sect's view, but leave all people of faith free to follow their own path. (I've never understood why religious liberals don't press the point harder).
In short, Justice Ling-Cohan's ruling is well reasoned, anchored in constitutional precedent and in the natural law binary tradition of distinguishing between secular and spiritual law. One hopes the appellate courts will treat it with the respect it is due.
Well, my friend alanesq blogged this before me, but let me join the ranks of those in praise of Justice Doris Ling-Cohan's decision in Hernandez, et al. v. Robles, holding it an impermissible violation of the New York State Consttitution to deny gays and lesbians the right to marry. (text available at http://www.lambdalegal.org/binary-d
The case has precedential value throughout the state, although it is only directly binding on the City of New York, (The Times this morning stressed the limited scope of the area directly controlled by the ruling, but omitted the fact that the decision is "persuasive authority" as to the requirements of the New York State Constitution for all courts in New York State. This is typical of the Times's overall shoddy coverage of legal matters).
(The Times Article is here: http://www.nytimes.com/2005/02/05/nyreg
The ruling seems to me very strongly based on precedent and logic, and not one that is able to be objected to on any legal basis. By which I mean that the line of Supreme Court rulings stating that gays and lesbians are entitled to Equal Protection of the Laws (Roemer v. Evans and Lawrence v. Texas) dovetail neatly with the well-established Warren Court decision Loving v. Virgina, holding that marriage rights may not be denied by a state to members of "discrete and insular minorities" who have been historically subject to state discrimination. In short, gay civil marriage is the only way to treat all citizens equally.
By basing her decision on the state constitution, however, although using federal precedents, Justice Ling-Cohan has insulated her decision from the more conservative members of the Supreme Court reversing her ruling. It's immunized by the "independent and adequate state ground" doctrine of Michigan v. Long from federal court review. (Of course, so was the Florida Supreme Court decision in Bush v. Gore, but the present Supreme Court felt free to disregard 175 years of precedent). Assuming everyone follows the rules this time out, only the New York State higher courts can reverse or affirm.
Many on the religious right (small "rs" here, because I don't mean the rabid right; just members of more traditionalist denominations) may feel threatened by this ruling. With great respect, they should not. Both theologically and legally, it has long been recognized that the civil law and the religious law are and should be different. So, for example, the Supreme Court has long upheld the right of religious groups to disassociate themselves from those who do not conform to their tenets. See Hurley v. ILGO of Boston, 515 U.S. 557 (1995). For a more detailed analysis, see my article "The Last Word," posted at www.wireniusreport.org, originally published in the Hamline Law Review (2000).
Theologically, of course, Jesus himself stated that it was proper to "Render therefore unto Caesar the things which are Caesar's and unto God the things which are God's." (Matt. 19:21). See also Acts 5:29 ("We [Christians] ought to obey God rather than men"); Romans 12:3-7.
All of which acknowledges the distinction between civil and religious law. As does, by the way, St. Paul's exercise of his rights of Roman citizenship to avoid persecution as recorded in Acts of the Apostles. So there is in fact a strong Christian case for separation of church and state, and for the secular law to not track any sect's view, but leave all people of faith free to follow their own path. (I've never understood why religious liberals don't press the point harder).
In short, Justice Ling-Cohan's ruling is well reasoned, anchored in constitutional precedent and in the natural law binary tradition of distinguishing between secular and spiritual law. One hopes the appellate courts will treat it with the respect it is due.
