Illustration by Forest Byrd — The Enterprise

I am, as they say, happily married. In truth, it goes beyond that. I am passionate about my marriage. It has shaped and sustained me more than probably anything else in my life.
Why, then, do I feel like burning my marriage license"

Because I am both disappointed and angered by the decision last week from our state’s highest court.
Judge Robert S. Smith, writing for the plurality, said, "We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be decided by the Legislature."

This is the same state legislature that, for more than 30 years, failed to pass Sexual Orientation Non-Discrimination Act. After being introduced in 1971, the act finally passed in 2002. None of the bills introduced in either house in recent years to authorize same-sex marriage has made it out of committee.
As Chief Judge Judith S. Kaye points out, in her dissenting opinion, "Under both the State and Federal Constitutions, the right to due process of law protects certain fundamental liberty interests, including the right to marry. Central to the right to marry is the right to marry the person of one’s choice...."
She goes on to define fundamental rights, based on an earlier case, as those "which are, objectively, deeply rooted in the Nation’s history and tradition...and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed."

It reduces all of us as New Yorkers if the rights of any of us are denied or curtailed.

In 1977, I chose the person I wanted to marry — the person I loved, the person I wanted to spend the rest of my life with. We walked together into the North Elba Town Hall and received a marriage license from the town clerk, Matthew Clark. Civil marriage should be that simple for any couple that wants to make such a commitment. The 44 same-sex couples who brought the suit have not been able to obtain marriage licenses.

The opinion written by Smith, who was appointed under the Pataki Administration, was signed by Susan Phillips Read, another Pataki appointee, and by George Bundy Smith, appointed under the Cuomo Administration. Judge Victoria A. Graffeo, a Pataki appointee, wrote her own opinion, based on legal precedent, concurring with Smith. Kaye was joined by Carmen Beauchamp Ciparick in her dissent; both are Cuomo appointees. The seventh Court of Appeals judge, Albert Rosenblatt, recused himself because his daughter, an attorney, has worked on same-sex marriage cases.
"It is undisputed that the benefits of marriage are many," Smith writes, noting counsel identified 316 such benefits in New York law, ranging from tax advantages for married couples to having rights to be treated as family members in getting insurance coverage and making health-care decisions.
"Beyond this," he writes, "they receive the symbolic benefit, or moral satisfaction, of seeing their relationship recognized by the State."
So why should these benefits, both legal and moral, be denied to an entire class of people"

Smith bases his arguments on limited sociology and faulty history.
A rational legislature, he states, could decide these benefits should be given to members of opposite-sex couples, but not same-sex couples. He goes over "two grounds that rationally support the limitation on marriage that the Legislature has enacted...both of which are derived from the undisputed assumption that marriage is important to the welfare of children."
Smith writes, "Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not."

Following Smith’s reasoning to its logical conclusion, post-menopausal women would be denied marriage licenses as would sterile couples.
Smith goes on to say that same-sex couples "can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse... The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more."
Secondly, he says, "The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like."
Smith ignores the reality that plenty of American children today are raised in single-parent homes as well as by same-sex parents while he dismisses studies on children of same-sex parents, stating, that "the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households."
Kaye, on the other hand, asserts that the ability or desire to procreate is not a prerequisite for marriage. "The elderly are permitted to marry, and many same-sex couples do indeed have children," she writes.
While the government could rationally promote procreation, by, for example, giving tax breaks or subsidized day care to couples with children, Kaye writes that "no one rationally decides to have children because gays and lesbians are excluded from marriage."
She writes, "In holding that prison inmates have a fundamental right to marry — even though they cannot procreate — the Supreme Court has made it clear that procreation is not the sine qua non of marriage." She quotes from that decision that inmate marriages, like others, "are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship."
Kaye also makes the point that tens of thousands of children are currently being raised by same-sex couples in New York. "The State’s interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses," she writes.
Smith says that he has not been persuaded that "this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals." He says, "This is the question on which these cases turned."
He contrasts this with the 1967 Supreme Court decision that ended race-based legal restrictions on marriage. The court decided unanimously in favor of Richard Perry Loving, a white man who had married a black woman, over the state of Virginia, stating that prohibition on interracial marriage was plainly "designed to maintain White Supremacy." The court wrote that marriage is one of the "basic civil rights of man."
"Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil," writes Smith. While he concedes there has been "serious injustice in the treatment of homosexuals," he writes that it has been widely recognized only in the relatively recent past.
Does that mean we need several more centuries of discrimination against gays and lesbians before we can grant them their fundamental rights"
Kaye is more fair and on target in defining the central question of the cases at hand. "Correctly framed," she writes, "the question before us is not whether the marriage statutes properly benefit those they are intended to benefit — any discriminatory classification does that — but whether there exists any legitimate basis for excluding those who are not covered by the law."

Fundamental rights, once recognized, Kaye argues, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.
Kaye writes, "Just 10 years before Loving declared unconstitutional state laws banning marriage between persons of different races, 96% of Americans were opposed to interracial marriage...Sadly, many of the arguments then raised in support of the anti-miscegenation laws were identical to those made today in opposition of same-sex marriage."
She also writes, "Under our constitution, discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples. Nor can ‘deeply rooted’ prejudices uphold the infringement of a fundamental right."
She also states, "Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional."
On the history of marriage, Kaye writes, "The claim that marriage has always had a single and unalterable meaning is a plain distortion of history. In truth, the common understanding of ‘marriage’ has changed dramatically over the centuries....Until well into the nineteenth century, for example, marriage was defined by the doctrine of coverture, according to which the wife’s legal identity was merged into that of her husband, whose property she became. A married woman, by definition, could not own property and could not enter into contracts...Such was the very ‘meaning’ of marriage.
"Only since the mid-twentieth century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support."
Not only does Smith misconstrue discrimination — saying New York is not discriminating since it allows both men and women to marry people of the opposite sex — he does not understand that being gay or lesbian is not a matter of choice; it is a given, just like heterosexuality is. A person is born with a particular sexual orientation. The non-discrimination act New York finally passed four years ago refers properly to sexual "orientation" not "preference." Smith, however, repeatedly uses "preference."
Kaye understands that permitting homosexuals to marry people of the opposite sex does not ensure their rights. "The purported ‘right’ of gays and lesbians to enter into marriages with different-sex partners to whom they have no innate attraction cannot possibly cure the constitutional violation actually at issue here," she writes.
Kaye goes on to quote from a 1948 decision, "The right to marry is the right of individuals, not of...groups...Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains."
In a footnote, stunning for its honesty, Kaye adds, "Indeed, the true nature and extent of the discrimination suffered by gays and lesbians in this regard is perhaps best illustrated by the simple truth that each one of the plaintiffs here could lawfully enter into a marriage of convenience with a complete stranger of the opposite sex tomorrow, and thereby immediately obtain all of the myriad benefits and protections incident to marriage. Plaintiffs are, however, denied these rights because they each desire instead to marry the person they love and with whom they have created their family."

Since our highest court has shirked its duty to protect the individual liberties guaranteed by our state’s constitution, we, as citizens, must speak out now to convince our legislators to make the law gender neutral, as it has with the constitution.
"This State," writes Kaye in her dissenting opinion, "has a proud tradition of affording equal rights to all New Yorkers."

Let us see that tradition continues.

Neither justice nor liberty will be served if a fundamental right, like civil marriage, is denied.

— Melissa Hale-Spencer, editor