It doesn't get much uglier than that. Tying the fate of same-sex marriage to unrelated disputes over money should offend New Yorkers on both sides of the debate.
-- Bill Hammond
Maybe so, but it shouldn't surprise them. Politics is about horse trading and other somewhat unsavory actions, which do not suddenly disappear when really important stuff comes to the table. Republicans as a class are no big fan of this legislation, even if some would vote for it once introduced or if given free reign. Their base hates it or at best would not mind if it went away. And, if it allows them some influence over something they do care about (tax cuts, apparently) or at worst to lead to some religious exemptions and such, they will do so.
The Democrats on some other issue would do the same. The NY legislature is an equal opportunity political machine. Has been so for a long time -- the film 1776 joked about it with some degree of truth. And, we aren't just talking New York here. When did the Thirteenth Amendment pass Congress? In a lame duck session and Lincoln probably helped pave the way by promising a few goodies for the lingering votes. The Constitution itself, including slavery, was a compromise where "unrelated disputes over money" mattered. So it goes.
Marriage is a fundamental right but has traditionally been the discretion of the states. This includes as it underwent various changes (e.g., women having an equal status, easy divorce laws and other matters that affected the institution much more than same sex marriage* would today) over the years. So, though ultimately a federal constitutional issue, state by state development is essential here. Events in California suggest it is only a matter of time there. If New York joins in, logical since it already recognizes out of state same sex marriage (though the highest court did not decide the issue), it would be a major step forward. [See here for my comments on why "rights" is one proper way to address this issue.]
The lieutenant governor in this state does not have the power to break ties in the state senate in respect to legislation, so a tie will not cut it there. The measure already was passed in the assembly. The vote in the state senate is up in the air, one or two more votes needed. This is a six or so vote improvement since last time, which is impressive. The talk is that if voted upon, it will easily get a majority. Problem is that Republican leadership has yet to agree to put it to a vote. As I said, this is understandable, but that doesn't mean it lacks ugliness. Yet again there is more than a dime's worth of difference between the parties.
A reminder of what is at stake. Loving v. Virginia held that race was an illegitimate classification for marriage, even if interracial marriage burdened both sides. That is, each race having the "equal" right to marry only people of the same race was not enough. The same applies if the classification is based on sex. Some argue the problem in Loving was racism while this classification is benign. As with selective concern for tradition (coverture? not making spousal rape illegal? the latter was true into the 1970s) , doesn't cut it. Stereotypical sex roles, a major concern of sex discrimination case law, is not allowed either.
Some cheapen marriage by arguing that procreation justifies the [invidious] discrimination involved here. But a ruling on marriage of prisoners underlined that marriage is important and to be protected even if every aspect of marriage is not in place in a given case. This lesser known case warrants an extended quote:
It would not shock me if politics holds up the works here, things all so close. Hopefully not. If so, however, the true path is apparent and it is but a matter of time.
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* I continue to favor this term for various reasons. It is what is at stake. The sexual orientation of your partner isn't the issue. It also focuses on the sexual discrimination going on. "Gay" even is arguably a problem since it often is limited to male homosexuals. I realize that gays are obviously a big part of this whole thing, but SSM (it even is a nice acronym) is the appropriate term to use.
The Democrats on some other issue would do the same. The NY legislature is an equal opportunity political machine. Has been so for a long time -- the film 1776 joked about it with some degree of truth. And, we aren't just talking New York here. When did the Thirteenth Amendment pass Congress? In a lame duck session and Lincoln probably helped pave the way by promising a few goodies for the lingering votes. The Constitution itself, including slavery, was a compromise where "unrelated disputes over money" mattered. So it goes.
Marriage is a fundamental right but has traditionally been the discretion of the states. This includes as it underwent various changes (e.g., women having an equal status, easy divorce laws and other matters that affected the institution much more than same sex marriage* would today) over the years. So, though ultimately a federal constitutional issue, state by state development is essential here. Events in California suggest it is only a matter of time there. If New York joins in, logical since it already recognizes out of state same sex marriage (though the highest court did not decide the issue), it would be a major step forward. [See here for my comments on why "rights" is one proper way to address this issue.]
The lieutenant governor in this state does not have the power to break ties in the state senate in respect to legislation, so a tie will not cut it there. The measure already was passed in the assembly. The vote in the state senate is up in the air, one or two more votes needed. This is a six or so vote improvement since last time, which is impressive. The talk is that if voted upon, it will easily get a majority. Problem is that Republican leadership has yet to agree to put it to a vote. As I said, this is understandable, but that doesn't mean it lacks ugliness. Yet again there is more than a dime's worth of difference between the parties.
A reminder of what is at stake. Loving v. Virginia held that race was an illegitimate classification for marriage, even if interracial marriage burdened both sides. That is, each race having the "equal" right to marry only people of the same race was not enough. The same applies if the classification is based on sex. Some argue the problem in Loving was racism while this classification is benign. As with selective concern for tradition (coverture? not making spousal rape illegal? the latter was true into the 1970s) , doesn't cut it. Stereotypical sex roles, a major concern of sex discrimination case law, is not allowed either.
Some cheapen marriage by arguing that procreation justifies the [invidious] discrimination involved here. But a ruling on marriage of prisoners underlined that marriage is important and to be protected even if every aspect of marriage is not in place in a given case. This lesser known case warrants an extended quote:
The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.Clearly, all married couples do not and sometimes cannot procreate, but that is but one aspect of marriage. This excerpt suggests the breadth of marriage, which in basically every case applies to same sex couples. This even can include legitimation of children, which can include legal recognition of the parenthood rights of two same sex people. As another lesser known case (leading Justice Powell to question its breadth given regulations of among other things "homosexuals") noted;
Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.The right is personal. It should not be limited based on the sex or likely sexual preference of the partner involved. Doing so is wrong since there is no good reason - given the reasons for the state license in question - to fence out people on such grounds. It is bad public policy and New York should act on that ground alone. Its courts did not join with those that saw a constitutional (state and/or federal) problem, but there is one there as well. And, as with other marriage and relationship matters, old ways or norms are not a good reason to do otherwise. Change occurs there slowly, over time, and we are seeing yet another development here.
It would not shock me if politics holds up the works here, things all so close. Hopefully not. If so, however, the true path is apparent and it is but a matter of time.
---
* I continue to favor this term for various reasons. It is what is at stake. The sexual orientation of your partner isn't the issue. It also focuses on the sexual discrimination going on. "Gay" even is arguably a problem since it often is limited to male homosexuals. I realize that gays are obviously a big part of this whole thing, but SSM (it even is a nice acronym) is the appropriate term to use.