A few thoughts as to the second half of the oral argument in the NY Court of Appeals respecting gay marriage. The state's trio of lawyers left something to be desired with the first one putting on the strongest case.* A case helped by the fact that the court of appeals generally followed federal doctrine respecting equal protection measures as compared to some other states that go beyond what the Supreme Court held as mandated by the U.S. Constitution.
New York is more flexible with due process, and since the fundamental right to marry is at stake, this is relevant. [The two sides basically talked passed each other, the state saying rational basis was the test here, while the plaintiffs said heightened scrutiny. The plaintiffs argued there was no rational basis, but arguably the matter is somewhat close. Less so the stricter test, which is really the one that should apply.]
Nonetheless, it helps, even if it was a stretch to give so much emphasis to a 1970 gay marriage case the Supremes summarily disposed of, after being forced to consider it (less discretion over its docket) given the law of the time. Putting aside changes since then, such one line jobs really can be interpreted in various ways ... especially if one wants to ignore them. Still, if you want to do that, how about not ignoring a basic principle: the fact both groups are equally burdened does not necessarily mean there is no equal protection violation. Thus, a bar against interracial marriage that applied to both races was overruled. You can go to why -- racial animus, but at least face up to the question. Don't pretend you do not understand how one can claim the current practice denies the right to marry on the basis of sex.
In fact, one judge raised the point that the Supreme Court argued that sexual discrimination can arise when same sex activity is involved. He did not cite the case, and the state lawyer said he was not familiar with the principle, but the Onscale case comes to mind -- this was a same sex sexual harassment case involving a male worker thought to be homosexual by his fellow employees, that is, not "man" enough. This was based on a statutory claim, yes, but it surely has constitutional implications. I know of no case on constitutional grounds that raised the point, but homosexual activity obviously is a prime area where it might be raised. Again, it seemed a bit too convenient that the city lawyer (representing NYC) involved did not really address the point.
This sort of case calls to mind Justice Scalia's statement in Lawrence that we should not believe the majority's claim that marriage would not eventually fall within its dictates. One also remembers Brown v. Bd. of Ed., which some opposed because of fear it would eventually lead to race mixture in the bedroom. Though the Supremes delayed matters for about fifteen years, so it did in Loving v. Virginia (marriage). Thus, Justice Thomas is legally married. But, equality doesn't always go all the way -- consider sex/gender: the military (though not military schools), statutory rape (a state court erased differences respecting sexual orientation here), and paternity requirements to prove citizenship (born of a citizen?) all remain exceptions to the general rule. A relevant case the other way is New York removing the "marriage exception" to rape, even after centuries of practice.
But, sure, I think it follows from Lawrence that same sex couples should marry. I can differentiate given the privacy issue, but honestly, this would be partly strategic. Not quite fraudulently so -- the law in the courts should develop carefully, case by case. Going about it another way, one looks at another reason for Lawrence's limited reach: it supplies the states and lower federal courts time and flexibility. Marriage is largely a state matter, generally left to the states in many respects. Here New York's general following of the federal rule in equality might make things different, but overall, it makes sense to let the states -- pursuant to their own policies -- to develop the law in this area.
Thus, my leaning toward letting the state legislature pass a statewide civil union law. Now, if I was in some other state that was less gay friendly, my battle was be tougher. There, it might behoove one to attack other laws as well, including respecting to various aspects connection to marriage (housing, child raising, privileges, health care, etc.). Though NY does not have a statewide anti-discrimination law, it does have enough pro-gay regulations and court decisions to threaten the rationality of a ban against same sex unions. Likewise, the number of gay families (fairly recently, the NYT begun to have same sex wedding announcements) in the state is quite significant. And, so forth.
If Scalia is proved right sometime in the 2010s, fine. He can dissent in the next Loving ... maybe, even having to deal with an openly homosexual fellow justice (one account suggests Justice Murphy, a lefty on the bench in the 1940s, might have be gay). Meanwhile, remember that California struck down a ban on interracial marriages in the 1940s, twenty years before Loving. This did not lead to the 23A, nor did President Truman feel a need for one, well at least one on that subject. And, when Justice X (maybe it can be Kennedy's finale) writes the opinion, s/he can cite how changes in state law, including via constitutional decision, made it appropriate to apply nationally.
Go ahead NY, help further build the foundation of true equality.
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* One wonders how much effort the government wants to supply, especially given even the mayor of New York supports a (legislatively based) same sex marriage law. It recalls the lawyer from Kansas in Brown who later wrote a memoir entitled A Time To Lose. In fact, the local school board did not want to defend themselves in court -- according to the oral arguments which I am now reading, the Supreme Court had to ask the state to appear. After all, it needed a border state, especially one who won merely on precedent -- the lower court, in language quoted in the eventual decision, clearly accepted that separate was not equal.
Since I brought it up, a bit on the other side -- the plaintiffs (defendants in Delaware, which lost below because the two systems were not deemed equal, thus a black student had a right to go to a white school) needed to underline the racial animus of the policy. But, even many blacks wanted their own schools in the Reconstruction, where these laws generally began. The policy of some states to mandate segregation (sometimes even in the constitution) was a bit much.
But, separation was not just an animus move, a badge of slavery. It worked that way at the end of the day -- often in intent, and also in practice, since you cannot be truly equal if you are separated from childhood. The nuances were dwelt upon, but quite appropriately, the lawyers on each side tried to use their strongest arguments.