my hometown

I received this email yesterday from Rachel, who I used to work with in the Haven Coalition.

Dear Friends,

I have wonderful news and bad news. The wonderful news is that Sally is pregnant, and we will be parents in late October, keynahora.

Before you hit reply, I want to tell you the bad news.

The bad news is that the highest court in New York has found our family to be of no value. The Court of Appeals ruled today that the state may rationally favor opposite-sex couples in marriage, because they can procreate more easily. A gay couple's deeply considered decision to raise children is insufficient to obligate New York State to protect their family equally. To quote from Robert Smith's decision: "A person's preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State's interest in fostering relationships that will serve children best."

Rather than email me to say mazel tov, it would be much more meaningful if you would join me tonight . . . to demonstrate your opposition to the anti-marriage ruling.

From the New York Times:

New York's highest court rejected yesterday a broad attempt by gay and lesbian couples across the state to win the right to marry under state law, saying that denying marriage to same-sex couples does not violate the State Constitution.

By a 4-2 majority, the Court of Appeals found that the State Legislature, in laws dating back nearly 100 years, intended to limit marriage to a union between a man and a woman, and that the Legislature had a rational basis for doing so.

The court said it would be up to lawmakers to decide whether same-sex marriage should be permitted, and the ruling had politicians and others mobilizing immediately for a fight in Albany.

The majority decision, written by Judge Robert S. Smith, found that limiting marriage to couples of the opposite sexes was based on legitimate societal goals, primarily the protection and welfare of children. It could well be argued, he said, that children are better off raised by a biological mother and father, rather than by a gay or lesbian couple.

"Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals," Judge Smith wrote in his 17-page opinion.

The court's chief judge, Judith S. Kaye, issued a sharp dissent, warning that future generations would look back at yesterday's decision as "an unfortunate misstep."

She said that barring gay marriage was tantamount to barring interracial marriage, as laws formerly did.

"The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it," Judge Kaye wrote in a 27-page opinion, in which she was joined by Judge Carmen Beauchamp Ciparick.

Gay and lesbian groups viewed the decision as a setback, though it was not unexpected. "Today is a sad day for all New Yorkers who believe in the constitutional guarantee of equal protection under law," said Roberta A. Kaplan, lead counsel with the American Civil Liberties Union and the New York Civil Liberties Union for the plaintiffs in one of four cases consolidated in the same ruling.

From Gay.com:

The 17-page ruling by Judge Robert Smith was noteworthy for its circular reasoning and lack of rigorous analysis.

Matt Foreman of the National Gay and Lesbian Task Force called the majority decision "tortured and intellectually strained."

. . .

Smith applied the lowest standard of judicial review to justify the discrimination in New York's domestic relations law, finding that the state had a legitimate interest in favoring heterosexual couples for two main reasons:

First, since only heterosexual couples can have children by accident or impulse, the state could reasonably seek to encourage such couples to procreate in the context of a stable institution like marriage.

Second, the state could reasonably prefer that children be raised in a household with a male and a female parent.

"Intuition and experience," wrote Smith, "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."

The standard of review also requires that the law or policy under review be "rationally related" to the state's legitimate interest. Arguably, since gay couples have children, since the denial of marriage rights to gay couples in no way increases the number of children raised in opposite-sex households, and since many heterosexual couples are childless, the connection between the two rationales and the bar to same-sex marriage is unclear. In one of the weakest areas of the decision, Smith breezed over the logical impasse with minimal explanation.

Writing in dissent, Chief Judge Judith S. Kaye chided the majority for dodging the essential question in the case. "The issue is not whether the state has a legitimate interest in stable heterosexual families, she wrote. The issue is whether the state has a legitimate reason for blocking gay families from the institution of marriage." [Emphasis mine.]

Kaye wrote that future generations will look upon the decision "as an unfortunate misstep." She argued that marriage is a fundamental right, obliging the court to hold the state to the toughest, not the easiest, legal test.

"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," she wrote. "The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy."

In fact, no one disputes that marriage is considered a fundamental right under the due process clause of the Constitution. But to escape the legal implications of that piece of settled law, many courts have defined the right at stake not as the fundamental "right to marry," but as the nonfundamental "right to marry a same-sex partner."

Smith and his majority did just that, again with sketchy reasoning.

Kaye also argued that homosexuals meet the definition of a suspect class, a group "whose defining characteristic is so seldom relevant to the achievement of any legitimate state interest, that laws grounded in such considerations are deemed to reflect prejudice and antipathy." As such, she wrote, the question of marriage equality also deserved heightened scrutiny by the court under the equal protection clause.

By contrast, Smith seemed to imply that laws "governing marriage and family" can almost automatically discriminate on the basis of sexual orientation without such legal consequences.

"It's a sad day for New York families," said plaintiff Kathy Burke of Schenectady, who is raising an 11-year-old son with her partner, Tonja Alvis. "My family deserves the same protections as my next-door neighbor's."

Plaintiff Regina Cicchetti said she was "devastated" by the ruling. But the Port Jervis resident said she and her partner of 36 years, Susan Zimmer, would fight on, probably by lobbying the Legislature for a change in the law.

"We haven't given up," she said. "We're in this for the long haul. If we can't get it done for us, we'll get it done for the people behind us."

A little later, Rachel forwarded to me an emergency email that was sent to Haven Coalition membership. A married couple, both 17 years old, needed a place to stay. They had traveled to New York City to terminate a pregnancy, but were turned away from hotels because of their young age.

A Haven member had responded, "Maybe Robert Smith would like to host this fine young couple in his home."