Preserving traditional marriage requires strict constructionist judges (and people who will nominate and confirm them)

By Michael Gaynor

Good News: On July 6, 2006, the highest courts in New York and Georgia issued traditional marriage-friendly decisions. The New York court refused, 4 to 2, to read a gay marriage right into New York's Constitution (New York's marriage law limits marriage to a man and a woman), and the Georgia court unanimously reversed a decision setting aside an overwhelmingly passed state constitutional amendment rejecting both gay marriage and civil unions on the ground that there should have been two separate amendments.

Bad News: Although the Georgia decision was unanimous, traditional marriage was supported by only 4 of the 7 judges on New York's highest court (as the third term of a Governor (George Pataki) who ran and won with the Republican and Conservative nominations and has been nominating judges to that court is nearing an end and a secular extremist (Eliot Spitzer) is expected to win the New York governorship as the Democrat and Liberal nominee and surely will nominate pro-gay marriage, pro-abortion judicial activists if he does

Lesson: Preserving tradition marriage requires strict constructionists judges, and, since strict constructionist judges are appointed and confirmed by Republican/Conservatives, not Democrat/Liberals, Republican/Conservative Governors and Legislators.

As usual, the Far Left, frustrated by the opposition of a substantial majority of the people to an item on its extremist agenda and utterly disdainful of both their traditional beliefs and the concept of majority rule, tried to have the judiciary impose its extreme agenda, in this case the treatment of gay marriage as a constitutional right, even though there is absolutely no historical support for that position and the creation of such a constitutional right by the judiciary would be an egregious (and unconstitutional) abuse of judicial power.

The majority affirmed the appellate court decision in four cases (Hernandez v. Robles, Samuels v. New York State Health Department, Matter of Kane v. Marsolais and Seymour v. Holcomb, presenting the same issue. Judge Robert Smith, for the majority, wrote: "We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives."

Governor Pataki's Health Department and New York Attorney General Eliot Spitzer's office had argued that New York law prohibits issuing marriage licenses to same-sex couples. Governor Pataki believes that the law should not be changed and praised the majority decision as right, but gubernatorial aspirant Sptizer favors change and would appoint the kind of judges who would take it upon themselves to impose that change.

Chillingly, New York's activist Chief Judge (Judith Kaye) criticized the majority for failing to uphold its responsibility to correct inequalities, insisting that the Legislature should not decide what is and is not marriage: "It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today's decision as an unfortunate misstep."

Of course, there is nothing to support the proposition that New York's Constitution ever was intended to create a gay marriage right and Chief Judge Kaye's dissent was nothing more than a cry for her Court to revise that Constitution by judicial decision.

Judge Albert Rosenblatt, whose daughter has advocated for same-sex couples in California, did not take part in the decision.

The majority opinion was clear, compelling and constitutional: "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 addressed by the Legislature."

The inane invitation to pretend that New York statutory law permitted same-sex marriage was flatly rejected:

"Some amici...suggest that the statute can be read to permit same-sex marriage, thus mooting the constitutional issues. We find this suggestion untenable.

"Articles 2 and 3 of the Domestic Relations Law, which govern marriage, nowhere say in so many words that only people of different sexes may marry each other, but that was the universal understanding when Articles 2 and 3 were adopted in 1909, an understanding reflected in several statutes. Domestic Relations Law § 12 provides that 'the parties must solemnly declare . . . that they take each other as husband and wife.' Domestic Relations Law § 15 (a) requires town and city clerks to obtain specified information from 'the groom' and 'the bride.' Domestic Relations Law § 5 prohibits certain marriages as incestuous, specifying opposite-sex combinations (brother and sister, uncle and niece, aunt and nephew), but not same-sex combinations. Domestic Relations Law § 50 says that the property of 'a married woman . . . shall not be subject to her husband's control.'

"New York's statutory law clearly limits marriage to opposite-sex couples."

Likewise, the same-sex marriage as a state constitutional right under the state due process and equal protection clauses claim was rejected as ridiculous:

"The critical question is whether a rational legislature could decide that [marriage]benefits should be given to members of opposite-sex couples, but not same-sex couples.... We conclude...that there are at least 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.

"First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.

"The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These 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. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

"There is a second reason: 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. It is obvious that there are exceptions to this general rule — some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes — but the Legislature could find that the general rule will usually hold."

The majority insisted that the Legislature was entitled to make such determinations: "Plaintiffs, and amici supporting them, argue that the proposition asserted is simply untrue: that a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex. Perhaps they are right, but the Legislature could rationally think otherwise."

The majority concluded that the Legislature could rely upon...common sense!: "Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the commonsense premise that children will do best with a mother and father in the home."

And the majority refused to brand traditional marriage supporters as bigots:

"The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude."

Since there is "a rational basis for limiting marriage to opposite-sex couples," "that limitation is valid under the New York Due Process and Equal Protection Clauses, and that any expansion of the traditional definition of marriage should come from the Legislature."

"Today's decision refuses to recognize that gay and lesbian New Yorkers and their families are full citizens of this state. But this struggle is far from over," said Susan Sommer, Senior Counsel at Lambda Legal and lead attorney on Hernandez v. Robles.

Of that, we can be sure.

And the danger in New York is far more imminent than in Georgia, where the Georgia Supreme Court unanimously upheld the statewide vote of the people, who in November of 2004, by a margin of 77%, overwhelmingly passed an amendment to the state constitution protecting marriage as the union of one man and one woman.

Anita L. Staver, President of pro-traditional marriage Liberty Counsel, stated: "When the people of Georgia went to the polls, they spoke loudly and clearly in favor of marriage as one man and one woman. When groups pushing the homosexual agenda fail to win at the ballot box, they try to undermine democracy by using the courts to eliminate the voice of the people. Aggressive use of the courts to undermine marriage has backfired on the same-sex marriage movement. Recent efforts to challenge constitutional amendments will also backfire. The people of America are not about to idly stand by and watch marriage go up in smoke. Natural marriage between one man and one woman is best for our families, our children, and our communities."

In Georgia, traditional marriage is safe. In New York, however, despite the decision, traditional marriage is imperiled and the 2006 election is critical. Candidates who support gay marriage, especially Spitzer, the likely Democrat/Liberal gubernatorial candidate, should be rejected by all who want to protect traditional marriage.

© Michael Gaynor