Posted on 04/07/2009 8:36:25 AM PDT by wk4bush2004
No, I asked you what Ian is; I'm sure it's hilarious. Naturally, you'll be delighted to enlighten me.
1. It Is Not Marriage
Calling something marriage does not make it marriage. Marriage has always been a covenant between a man and a woman which is by its nature ordered toward the procreation and education of children and the unity and wellbeing of the spouses.
The promoters of same-sex “marriage” propose something entirely different. They propose the union between two men or two women. This denies the self-evident biological, physiological, and psychological differences between men and women which find their complementarity in marriage. It also denies the specific primary purpose of marriage: the perpetuation of the human race and the raising of children.
Two entirely different things cannot be considered the same thing.
2. It Violates Natural Law
Marriage is not just any relationship between human beings. It is a relationship rooted in human nature and thus governed by natural law.
Natural law’s most elementary precept is that “good is to be done and pursued, and evil is to be avoided.” By his natural reason, man can perceive what is morally good or bad for him. Thus, he can know the end or purpose of each of his acts and how it is morally wrong to transform the means that help him accomplish an act into the act’s purpose.
Any situation which institutionalizes the circumvention of the purpose of the sexual act violates natural law and the objective norm of morality.
Being rooted in human nature, natural law is universal and immutable. It applies to the entire human race, equally. It commands and forbids consistently, everywhere and always. Saint Paul taught in the Epistle to the Romans that the natural law is inscribed on the heart of every man. (Rom. 2:14-15)
3. It Always Denies a Child Either a Father or a Mother
It is in the child’s best interests that he be raised under the influence of his natural father and mother. This rule is confirmed by the evident difficulties faced by the many children who are orphans or are raised by a single parent, a relative, or a foster parent.
The unfortunate situation of these children will be the norm for all children of a same-sex “marriage.” A child of a same-sex “marriage” will always be deprived of either his natural mother or father. He will necessarily be raised by one party who has no blood relationship with him. He will always be deprived of either a mother or a father role model.
Same-sex “marriage” ignores a child’s best interests.
4. It Validates and Promotes the Homosexual Lifestyle
In the name of the “family,” same-sex “marriage” serves to validate not only such unions but the whole homosexual lifestyle in all its bisexual and transgender variants.
Civil laws are structuring principles of man's life in society. As such, they play a very important and sometimes decisive role in influencing patterns of thought and behavior. They externally shape the life of society, but also profoundly modify everyone’s perception and evaluation of forms of behavior.
Legal recognition of same-sex “marriage” would necessarily obscure certain basic moral values, devalue traditional marriage, and weaken public morality.
5. It Turns a Moral Wrong into a Civil Right
Homosexual activists argue that same-sex “marriage” is a civil rights issue similar to the struggle for racial equality in the 1960s.
This is false.
First of all, sexual behavior and race are essentially different realities. A man and a woman wanting to marry may be different in their characteristics: one may be black, the other white; one rich, the other poor; or one tall, the other short. None of these differences are insurmountable obstacles to marriage. The two individuals are still man and woman, and thus the requirements of nature are respected.
Same-sex “marriage” opposes nature. Two individuals of the same sex, regardless of their race, wealth, stature, erudition or fame, will never be able to marry because of an insurmountable biological impossibility.
Secondly, inherited and unchangeable racial traits cannot be compared with non-genetic and changeable behavior. There is simply no analogy between the interracial marriage of a man and a woman and the “marriage” between two individuals of the same sex.
6. It Does Not Create a Family but a Naturally Sterile Union
Traditional marriage is usually so fecund that those who would frustrate its end must do violence to nature to prevent the birth of children by using contraception. It naturally tends to create families.
On the contrary, same-sex “marriage” is intrinsically sterile. If the “spouses” want a child, they must circumvent nature by costly and artificial means or employ surrogates. The natural tendency of such a union is not to create families.
Therefore, we cannot call a same-sex union marriage and give it the benefits of true marriage.
7. It Defeats the State’s Purpose of Benefiting Marriage
One of the main reasons why the State bestows numerous benefits on marriage is that by its very nature and design, marriage provides the normal conditions for a stable, affectionate, and moral atmosphere that is beneficial to the upbringing of children—all fruit of the mutual affection of the parents. This aids in perpetuating the nation and strengthening society, an evident interest of the State.
Homosexual “marriage” does not provide such conditions. Its primary purpose, objectively speaking, is the personal gratification of two individuals whose union is sterile by nature. It is not entitled, therefore, to the protection the State extends to true marriage.
8. It Imposes Its Acceptance on All Society
By legalizing same-sex “marriage,” the State becomes its official and active promoter. The State calls on public officials to officiate at the new civil ceremony, orders public schools to teach its acceptability to children, and punishes any state employee who expresses disapproval.
In the private sphere, objecting parents will see their children exposed more than ever to this new “morality,” businesses offering wedding services will be forced to provide them for same-sex unions, and rental property owners will have to agree to accept same-sex couples as tenants.
In every situation where marriage affects society, the State will expect Christians and all people of good will to betray their consciences by condoning, through silence or act, an attack on the natural order and Christian morality.
9. It Is the Cutting Edge of the Sexual Revolution
In the 1960s, society was pressured to accept all kinds of immoral sexual relationships between men and women. Today we are seeing a new sexual revolution where society is being asked to accept sodomy and same-sex “marriage.”
If homosexual “marriage” is universally accepted as the present step in sexual “freedom,” what logical arguments can be used to stop the next steps of incest, pedophilia, bestiality, and other forms of unnatural behavior? Indeed, radical elements of certain “avant garde” subcultures are already advocating such aberrations.
The railroading of same-sex “marriage” on the American people makes increasingly clear what homosexual activist Paul Varnell wrote in the Chicago Free Press:
The gay movement, whether we acknowledge it or not, is not a civil rights movement, not even a sexual liberation movement, but a moral revolution aimed at changing people's view of homosexuality.
10. It Offends God
This is the most important reason. Whenever one violates the natural moral order established by God, one sins and offends God. Same-sex “marriage” does just this. Accordingly, anyone who professes to love God must be opposed to it.
Wrong.
So you say. The VT legislature and the Iowa Supreme Court disagree. What makes you right and them wrong?
Fallacious Appeal to authority. If you want to go that route, the UNITED STATES SUPREME COURT has summarily affirmed that traditional marriage laws DO NOT violate the Constitution. (See: Baker v. Nelson 409 U.S. 810 (1972)).
But we really shouldn't go that route.
We should go the route of recognizing the facts. The fact is men and women are different. The fact is, male parts are made to fit into female parts. The fact is, only the Union of a man and a woman can form biological offspring.
Marriage exists to ensure the continuation of the human race. Government encourages behavior that ensures that Children will have a mother and father. Despite your best attempts to twist reality, kids who are raised without both a mother and father are far worse off.
Society has an interest in ensuring that stable male-female relationships are maintained for the betterment of our future generations.
Homosexuality is aberrant, perverted and an affront to all that is healthy.
To make this argument, one must believe that "marriage" is a finite quantity. That when two gays have some marriage, there is somehow less marriage for the hetero couples. I confess that this argument puzzles me. Perhaps you can expand on your thesis?
Absolutely not. When something has a certain essence in order to exist, then a counterfeit copy of that devalues the real thing. In order for a marriage to exist, there must be a male and a female, as I pointed out above.
Utter nonsense. Equal protection has never demanded radical egalitarianism. In fact, equal protection has never demanded that things which are different in fact or opinion to be treated in law as though they were the same.
The tyrants on the Iowa Supreme Court tried to flip the script. They ignored the fact that the State makes the same benefit, that being mixed-gender marriage, equally available to all individuals on the exact same basis. It does not matter that the sodomites do not wish to enter an opposite sex relationship. It is the availability of the right on equal terms, not the equal use of the right that is central to a constitutional analysis.
Moreover, with no other group has equal protection been twisted in this manner. Homosexuality IS NOT an inborn trait that can never be altered. It is a behavior. We don't invoke equal protection analysis to protect behavior choices.
Marriage is a natural institution, as It's union of a man and a woman is rooted in the order of nature itself. It is an institution that the state protects because it's members form the bedrock of society. The members of that institution must necessarily be of the opposite sex. No matter how seared one's conscience may be, reality dictates that Men and Women's bodies are different and that those differences compliment each other. Only a Man and a Woman can properly join together as one flesh.
At age 83, my grandmother an 82-year-old man. Under your standard, her marriage should have been prevented.
Marriage exists to ensure the continuation of the human race.
Bull. Since when does pregnancy require marriage? If you want to get REALLY traditional about it, marriage was an early property management system. I prefer an approach that recognizes marriage as a partnership between two committed, loving adults. I hear that also contributes to social stability and the general well-being of the partners.
kids who are raised without both a mother and father are far worse off. Society has an interest in ensuring that stable male-female relationships are maintained for the betterment of our future generations.
I hope that the thousands of childless couples are properly grateful to you for overlooking their audacious failure to procreate. Do you keep track of those who aren't?
You choose a narrow interpretation of the benefit, "mixed-gender marriage." Why impose that limitation over the broader benefit, namely the ability of an individual to marry a loving partner?
It does not matter that the sodomites do not wish to enter an opposite sex relationship.
But they could if they wanted to, so no harm no foul? I seem to recall some old guy writing about inalienable rights yadda yadda the pursuit of happiness, but I forget where I heard that.
Homosexuality IS NOT an inborn trait that can never be altered. It is a behavior.
Citation needed. When did YOU choose to become a (presumably) heterosexual? Moreover, if sexuality is a choice, why aren't there more homosexuals? If it's a choice, then it strikes me that it could go either way. Alternatively, given the intense social pressures against it, why are there ANY homosexuals in fundamentalist religious communities?
So a same sex marriage devalues an opposite sex marriage. When two men get married in Vermont, then the value of any given heterosexual marriage is suddenly diminished? How exactly does one measure this quantity? Does the hetero pair love each other less? Are they more likely to get divorced? Less likely to have kids?
By what objective measure do you make this claim?
The simple answer to your question is Yes. Same-sex "marriage" completely dismantles the Western legal tradition whereby marriage is accorded special respect and protection. You might not like it, but the very existence of marriage does indeed privilege procreative heterosexual intercourse. It is for this reason that marriage was constituted as an institution in the first place.
Same-sex intercourse can NEVER be a complete expression of the sex act. I don't care how seared your conscience is, the basic reality is "the parts just don't work that way." By calling a perversion of the natural order "marriage" one is removing marriage from it's special place and placing it on par with fetish sex.
Your attempt to assign "value" in the manner in which you are trying is fallacious. Value exists on many different fields.
Same-sex marriage is based, at its core, on two faulty premises. First, that marriage is nothing more than a package of benefits. The second, is that marriage is merely a legal contract that is the product of law.
Both premises are faulty. If one views marriage as nothing more than a benefit package, then what keeps you from keeping that package from being given to other individuals who want it? Why should a polygamous group be refused the same benefits that you want? Why should incestuous couples be forbidden access to the benefits? Because you said so? Because it's always been that way? You can't appeal to that claim as your second premise says that marriage is nothing more than a product of law, a contract. If so, why can't the other individuals enter into the same contract?
The fact is, marriage isn't just a benefits package, nor is it a contract. It is a fundamental societal institution without which there would neither be civilization or progress. Throughout human history, marriage was developed as an institution by which a man and woman were brought into a public sexual union, in which the rights are responsibilities between the spouses and the children that they produce as a result of their sexual union are enforced PUBLICLY.
By trying to transform a fundamental human institution into fetish sex and a contract, you remove it from the special place that it holds in our society.
Marriage isn't about you, it's about the future generations, generations which sodomites CAN NOT PRODUCE.
You do not have a right to call your fetish sex "marriage", because it is not, and can never be such. You do not have a right to initiate government force to remove marriage from the special place that it holds in society. You do not have the right to force me or my children to put our stamp of approval on your aberrant behavior.
Your ignorance of human history is noted. Historicall, marriage has been a property management system--the property in question pre-marriage being the assets of the woman's parents, as well as the woman herself, and post-marriage the property passing to any male heirs resulting from the union.
You do not have a right to call your fetish sex "marriage", because it is not, and can never be such. . . You do not have the right to force me or my children to put our stamp of approval on your aberrant behavior.
I note with interest that this is again about me and my aberrant behavior. You just can't discuss the topic without personalizing it, can you? Emotion is a weak position from which to argue.
Is there evidence to support your implication that the existence of homosexual marriage depresses birth rates? I'm also waiting for some evidence that pregnancy is contingent upon a heterosexual marriage.
Uh huh, you retreat to the tired old lines from the homosexual left. The fact is, it is your view of history that is mistaken. Marriage wasn't a "property management system", instead, "The marital alliance is fundamentally a reproductive alliance." (See: Crawford, C., & Salman, C. (2004). Evolutionary Psychology, Public Policy and Personal Decisions, Lawrence Erlbaum.)
It is well recognized that marriage's unique trait is societal approval and recognition of the union of male and female which results in the bearing and rearing of offspring. (See: Davis, K. (1985)Contemporary Marriage: Comparative Perspectives on a Changing Institution, Russell Sage Foundation.)
I note with interest that this is again about me and my aberrant behavior. You just can't discuss the topic without personalizing it, can you? Emotion is a weak position from which to argue.
You need to try harder than that. Aberrant behavior is just that, Aberrant. You brought that whole focus on yourself. Trying to run and hide behind a false claim of "argument from emotion" isn't going to get you out of the thicket.
Is there evidence to support your implication that the existence of homosexual marriage depresses birth rates?
First, there is no such thing as homosexual "marriage." Frankly, it can't actually exist even if you want to pretend that it does. That said, there is evidence that counterfeit "marriage" increases the out of wedlock birth rate and decreases the marriage rate.
http://www.heritage.org/research/family/wm577.cfm
http://www.heritage.org/Research/Family/MarriageDebate/ConsequencesMD.cfm
I'm also waiting for some evidence that pregnancy is contingent upon a heterosexual marriage.
Your obstreperousness is noted. However, your game is rapidly growing old. No one ever said that "pregnancy is contingent upon a heterosexual marriage." Your straw-man is a poorly constructed one.
It is true that any male and female can produce offspring, however unless that child is produced within a MARRIAGE between that couple, the chance of the child suffering increases dramatically. There is a multitude of social science data on this topic, far too much to reproduce here.
As I pointed out above, this is why the institution of marriage exists in the first place. To ensure
In an ideal world, no sexual interaction would take place outside of the bounds of wedlock. I understand that might shake you to your core, but it is the truth.
As it is quite clear that you just want to play games and build strawmen, there is probably no need to continue this conversation.
Remember, just as with marriage, you don't get to define terms the way that you want.
No, but another nice strawman. You badly miss the point. Marriage's central purpose is not to mandate procreation but to ameliorate its consequences. Your grandmother and grandfather still fulfilled the basic criteria for marriage, a man and a female. Only a male and a female can come together to form another human being. This is what marriage was structured to protect.
Bull. Since when does pregnancy require marriage? If you want to get REALLY traditional about it, marriage was an early property management system. I prefer an approach that recognizes marriage as a partnership between two committed, loving adults. I hear that also contributes to social stability and the general well-being of the partners.
As I previously addressed, you are dead wrong. In any case, I am curious as to why you insist that marriage must remain binary? Isn't that arbitrary?
I hope that the thousands of childless couples are properly grateful to you for overlooking their audacious failure to procreate. Do you keep track of those who aren't?
Already addressed.
You choose a narrow interpretation of the benefit, "mixed-gender marriage." Why impose that limitation over the broader benefit, namely the ability of an individual to marry a loving partner?
Because that "narrow interpretation" is what constitutes a marriage. Marriage was constituted not as a contract between "loving individuals" but as a means to control and channel heterosexual intercourse into a stable structure and thus ensure that children produced as a result of the union would be born into a family with a mother and father.
Moreover, your point is also irrelevant to an equal protection analysis. When the same benefit is offered on the same terms to everyone, it does not matter that some don't like the terms.
But they could if they wanted to, so no harm no foul? I seem to recall some old guy writing about inalienable rights yadda yadda the pursuit of happiness, but I forget where I heard that.
Jefferson said that we were endowed by our Creator with inalienable rights. How does that Creator define marriage?
Citation needed. When did YOU choose to become a (presumably) heterosexual? Moreover, if sexuality is a choice, why aren't there more homosexuals? If it's a choice, then it strikes me that it could go either way. Alternatively, given the intense social pressures against it, why are there ANY homosexuals in fundamentalist religious communities?
I am curious as to why individuals of your ilk always retreat to a set of talking points. Do you know how many times I have heard the "When did YOU choose to become a heterosexual" line?
The simple answer? We are all created heterosexual, yet various influences can cause an individual to deviate from that norm.
As for your "citation needed." What do you need a citation too? The fact that ex-homosexuals exist? The fact that sexual behavior is not fixed and inherent?
I can give you citations to both.
Baker v. Nelson
Supreme Court of Minnesota, 1971
191 N.W.2d 185
OPINION
PETERSON, Justice.
The questions for decision are whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled.
Petitioners, Richard John Baker and James Michael McConnell, both adult male persons, made application to respondent, Gerald R. Nelson, clerk of Hennepin County District Court, for a marriage license, pursuant to Minn.St. 517.08. Respondent declined to issue the license on the sole ground that petitioners were of the same sex, it being undisputed that there were otherwise no statutory impediments to a heterosexual marriage by either petitioner.
The trial court, quashing an alternative writ of mandamus, ruled that respondent was not required to issue a marriage license to petitioners and specifically directed that a marriage license not be issued to them. This appeal is from those orders. We affirm.
[1] 1. Petitioners contend, first, that the absence of an express statutory prohibition against same-sex marriages evinces a legislative intent to authorize such marriages. We think, however, that a sensible reading of the statute discloses a contrary intent.
Minn.St. c. 517, which governs “marriage,” employs that term as one of common usage, meaning the state of union between persons of the opposite sex./1/ It is unrealistic to think that the original drafts-men of our marriage statutes, which date from territorial days, would have used the term in any different sense. The term is of contemporary significance as well, for the present statute is replete with words of heterosexual import such as “husband and wife” and “bride and groom” (the latter words inserted by L.1969, C. 1145, § 3, subd.3).
We hold, therefore, that Minn.St. c. 517 does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited.
[2] 2. Petitioners contend, second, that Minn.St. c. 517, so interpreted, is unconstitutional. There is a dual aspect to this contention: The prohibition of a same-sex marriage denies petitioners a fundamental right guaranteed by the Ninth Amendment to the United States Constitution, arguably made applicable to the states by the Fourteenth Amendment, and petitioners are deprived of liberty and property without due process and are denied the equal protection of the laws, both guaranteed by the Fourteenth Amendment./2/
These constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court
The iinstitution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner V. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), which invalidated Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, stated in part: “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), upon which petitioners rely, does not support a contrary conclusion. A Connecticut criminal statute prohibiting the use of contraceptives by married couples was held invalid, as violating the due process clause of the Fourteenth Amendment. The basic premise of that decision, however, was that the state, having authorized marriage, was without power to intrude upon the right of privacy inherent in the marital relationship. Mr. Justice Douglas, author of the majority opinion, wrote that this criminal statute “operates directly on an intimate relation of husband and wife,” 381 U.S. 482, 85 S.Ct. 1680, 14 L.Ed.2d 513, and that the very idea of its enforcement by police search of “the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives * * * is repulsive to the notions of privacy surrounding the marriage relationship,” 381 U.S. 485, 85 S.Ct.1682, 14 L.Ed.2d 516. In a separate opinion for three justices, Mr. Justice Goldberg similarly abhorred this state disruption of “the traditional relation of the family—a relation as old and as fundamental as our entire civilization.” 381 U.S. 496, 85 S.Ct. 1688,14 L.Ed.2d 522./3/
The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that “abstract symmetry” is not demanded by the Fourteenth Amendment./4/
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L. Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations./5/”
Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.
Affirmed.
NOTES
[NOTE 1]. Webster’s Third New International Dictionary (1966) p. 1384 gives this primary meaning to marriage: “1 a: the state of being united to a person of the opposite sex as husband or wife.”
Black, Law Dictionary (4 ed.) p. 1123 states this definition: “Marriage *** is the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”[BK]
[NOTE 2] We dismiss without discussion petitioners’ additional contentions that the statute contravenes the First Amendment and Eighth Amendment of the United States Constitution.[BK]
[NOTE 3] The difference between the majority opinion of Mr. Justice Douglas and the concurring opinion of Mr. Justice Goldberg was that the latter wrote extensively concerning this right of marital privacy as one preserved to the individual by the Ninth Amendment. He stopped short, however, of an implication that the Ninth Amendment was made applicable against the states by the Fourteenth Amendment.[BK]
[NOTE 4] See, Patsone V. Pennsylvania, 232 U.S.138, 144, 34 S.Ct. 281, 282, 58 L.Ed. 539, 543 (1914). As stated in Tigner v.Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 LEd. 1124, 1128, 130 A.L.R.1321, 1324 (1940), and reiterated in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 540, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1659, “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”[BK]
[NOTE 5] See, also, McLaughlin V. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), in which the United States Supreme Court, for precisely the same reason of classification based only upon race, struck down a Florida criminal statute which proscribed and punished habitual cohabitation only if one of an unmarried couple was white and the other black.[BK]
This case was summarily affirmed by SCOTUS in 1972, it is still the law.
Hernandez v Robles
2006 NY Slip Op 05239 [7 NY3d 338]
July 6, 2006
R.S. Smith, J.
Court of Appeals
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, October 18, 2006
[*1]
Daniel Hernandez et al., Appellants,
v
Victor L. Robles, as City Clerk of the City of New York, Respondent.
Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents.
Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
Argued May 31, 2006; decided July 6, 2006
Hernandez v Robles, 26 AD3d 98, affirmed.
Samuels v New York State Dept. of Health, 29 AD3d 9, affirmed.
Matter of Kane v Marsolais, 26 AD3d 661, affirmed.
Seymour v Holcomb, 26 AD3d 661, affirmed.
{**7 NY3d at 356} OPINION OF THE COURT
R.S. Smith, J.
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. [*2]
Facts and Procedural History
Plaintiffs and petitioners (hereafter plaintiffs) are the members of 44 same-sex couples. Each couple tried unsuccessfully to obtain a marriage license. Plaintiffs then began these four lawsuits, seeking declaratory judgments that the restriction of marriage to opposite-sex couples is invalid under the State Constitution. Defendants and respondents (hereafter defendants) are the license-issuing authorities of New York City, Albany and Ithaca; the State Department of Health, which{**7 NY3d at 357} instructs local authorities about the issuance of marriage licenses; and the State itself. In Hernandez v Robles, Supreme Court granted summary judgment in plaintiffs’ favor; the Appellate Division reversed. In Samuels v New York State Department of Health, Matter of Kane v Marsolais and Seymour v Holcomb, Supreme Court granted summary judgment in defendants’ favor, and the Appellate Division affirmed. We now affirm the orders of the Appellate Division.
Discussion
I
All the parties to these cases now acknowledge, implicitly or explicitly, that the Domestic Relations Law limits marriage to opposite-sex couples. Some amici, however, 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 (1) (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. The more serious question is whether that limitation is consistent with the New York Constitution.
II
New York is one of many states in which supporters of same-sex marriage have asserted it as a state constitutional right. Several other state courts have decided such cases, under various state constitutional provisions and with divergent results (e.g., Goodridge v Department of Pub. Health, 440 Mass 309, 798 NE2d 941 [2003] [excluding same-sex couples from marriage{**7 NY3d at 358} violates Massachusetts Constitution]; Standhardt v Superior Ct. ex rel. County of Maricopa, 206 Ariz 276, 77 P3d 451 [Ct App 2004] [constitutional right to marry under Arizona Constitution does not encompass marriage to same-sex partner]; Morrison v Sadler, 821 NE2d 15 [Ind 2005] [Indiana Constitution does not require judicial recognition of same-sex marriage]; Lewis v Harris, 378 NJ Super 168, 875 A2d 259 [2005] [limitation of marriage to members of opposite sex does not violate New Jersey Constitution]; Baehr v Lewin, 74 Haw 530, 852 P2d 44 [1993] [refusal of marriage licenses to couples of the same sex subject to strict scrutiny under Hawaii Constitution]; Baker v State, 170 Vt 194, 744 A2d 864 [1999] [denial to same-sex couples of benefits and protections afforded to married people violates Vermont Constitution]). Here, [*3]plaintiffs claim that, by limiting marriage to opposite-sex couples, the New York Domestic Relations Law violates two provisions of the State Constitution: the Due Process Clause (art I, § 6 [”No person shall be deprived of life, liberty or property without due process of law”]) and the Equal Protection Clause (art I, § 11 [”No person shall be denied the equal protection of the laws of this state or any subdivision thereof”]).
We approach plaintiffs’ claims by first considering, in section III below, whether the challenged limitation can be defended as a rational legislative decision. The answer to this question, as we show in section IV below, is critical at every stage of the due process and equal protection analysis.
III
It is undisputed that the benefits of marriage are many. The diligence of counsel has identified 316 such benefits in New York law, of which it is enough to summarize some of the most important: Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.
The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples. The question is not, we emphasize, whether the Legislature must or should continue to limit marriage in this way; of course the Legislature{**7 NY3d at 359} may (subject to the effect of the federal Defense of Marriage Act [Pub L 104-199, 110 US Stat 2419]) extend marriage or some or all of its benefits to same-sex couples. We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, 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 [*4]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{**7 NY3d at 360} 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.
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.
To support their argument, plaintiffs and amici supporting them refer to social science literature reporting studies of same-sex parents and their children. Some opponents of same-sex marriage criticize these studies, but we need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.
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. (See Goodridge, 440 Mass at 358-359, 798 NE2d at 979-980 [Sosman, J., dissenting].) And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households.
In sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn. If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice—if we agreed with plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial{**7 NY3d at 361} marriage that was plainly “designed to maintain White Supremacy” (id. at 11)—we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving.
But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries—at first by a few people, and later by many more—as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950’s and 1960’s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. [*5]
It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind.
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.
IV
Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that 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.
This Court is the final authority as to the meaning of the New York Constitution. This does not mean, of course, that we ignore the United States Supreme Court’s interpretations of similarly worded clauses of the Federal Constitution. The governing principle is that our Constitution cannot afford less protection to our citizens than the Federal Constitution does, but it can give more (People v P.J. Video, 68 NY2d 296, 302{**7 NY3d at 362} [1986]). We have at times found our Due Process Clause to be more protective of rights than its federal counterpart, usually in cases involving the rights of criminal defendants (e.g., People v LaValle, 3 NY3d 88 [2004]) or prisoners (e.g., Cooper v Morin, 49 NY2d 69 [1979]). In general, we have used the same analytical framework as the Supreme Court in considering due process cases, though our analysis may lead to different results. By contrast, we have held that our Equal Protection Clause “is no broader in coverage than the Federal provision” (Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360 n 6 [1985]).
We find no inconsistency that is significant in this case between our due process and equal protection decisions and the Supreme Court’s. No precedent answers for us the question we face today; we reject defendants’ argument that the Supreme Court’s ruling without opinion in Baker v Nelson (409 US 810 [1972]) bars us from considering plaintiffs’ equal protection claims. But both New York and federal decisions guide us in applying the Due Process and Equal Protection clauses.
A. Due Process
In deciding the validity of legislation under the Due Process Clause, courts first inquire whether the legislation restricts the exercise of a fundamental right, one that is “deeply rooted in this Nation’s history and tradition” (Washington v Glucksberg, 521 US 702, 721 [1997], quoting Moore v East Cleveland, 431 US 494, 503 [1977] [plurality op]; Hope v Perales, 83 NY2d 563, 575 [1994]). In this case, whether the right in question is “fundamental” depends on how it is defined. The right to marry is unquestionably a fundamental right (Loving, 388 US at 12; Zablocki v Redhail, 434 US 374, 384 [1978]; Cooper, 49 NY2d at 79). The right to marry someone of the same sex, however, is not “deeply rooted”; it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.
Recent Supreme Court decisions show that the definition of a fundamental right [*6]for due process purposes may be either too narrow or too broad. In Lawrence v Texas (539 US 558, 566 [2003]), the Supreme Court criticized its own prior decision in Bowers v Hardwick (478 US 186, 190 [1986]) for defining the right at issue as the right of “homosexuals to engage in sodomy.” The Lawrence court plainly thought the right should{**7 NY3d at 363} have been defined more broadly, as a right to privacy in intimate relationships. On the other hand, in Washington v Glucksberg (521 US at 722, 723), the Court criticized a lower federal court for defining the right at issue too broadly as a “right to die”; the right at issue in Glucksberg, the Court said, was really the “right to commit suicide” and to have assistance in doing so.
The difference between Lawrence and Glucksberg is that in Glucksberg the relatively narrow definition of the right at issue was based on rational line-drawing. In Lawrence, by contrast, the court found the distinction between homosexual sodomy and intimate relations generally to be essentially arbitrary. Here, there are, as we have explained, rational grounds for limiting the definition of marriage to opposite-sex couples. This case is therefore, in the relevant way, like Glucksberg and not at all like Lawrence. Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against state intrusion on intimate, private activity. They seek from the courts access to a state-conferred benefit that the Legislature has rationally limited to opposite-sex couples. We conclude that, by defining marriage as it has, the New York Legislature has not restricted the exercise of a fundamental right (see also concurring op of Judge Graffeo at 368-374).
Where no fundamental right is at issue, legislation is valid under the Due Process Clause if it is rationally related to legitimate government interests (Glucksberg, 521 US at 728; Hope, 83 NY2d at 577). Again, our earlier discussion answers this question. Protecting the welfare of children is a legitimate governmental interest, and we have shown above that there is a rational relationship between that interest and the limitation of marriage to opposite-sex couples. That limitation therefore does not deprive plaintiffs of due process of law.
B. Equal Protection
Plaintiffs claim that the distinction made by the Domestic Relations Law between opposite-sex and same-sex couples deprives them of the equal protection of the laws. This claim raises, first, the issue of what level of scrutiny should be applied to the legislative classification. The plaintiffs argue for strict scrutiny, on the ground that the legislation affects their fundamental right to marry (see Alevy v Downstate Med. Ctr. of State of N.Y., 39 NY2d 326, 332 [1976])—a contention we rejected above. Alternatively, plaintiffs argue for so-called intermediate or heightened scrutiny on two grounds. They say that the legislation{**7 NY3d at 364} discriminates on the basis of sex, a kind of discrimination that has been held to trigger heightened scrutiny (e.g., United States v Virginia, 518 US 515, 532-533 [1996]). They also say that discrimination on the basis of sexual preference should trigger heightened scrutiny, a possibility we left open in Under 21, Catholic Home Bur. for Dependent Children v City of New York (65 NY2d at 364). We reject both of these arguments, and hold that the restriction of marriage to opposite-sex couples is subject only to rational basis scrutiny.
By limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and men are treated alike—they are permitted to marry people of the opposite sex, but not people of their own sex. This is not the kind of sham equality that the Supreme Court confronted in Loving; the statute there, prohibiting black and white people from marrying each other, was in substance anti-black legislation. Plaintiffs do not [*7]argue here that the legislation they challenge is designed to subordinate either men to women or women to men as a class.
However, the legislation does confer advantages on the basis of sexual preference. Those who prefer relationships with people of the opposite sex and those who prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage. This case thus presents the question of what level of scrutiny is to be applied to legislation that classifies people on this basis. We held in Under 21 that “classifications based on sexual orientation” would not be subject to strict scrutiny, but left open the question of “whether some level of ‘heightened scrutiny’ would be applied” in such cases (id. at 364).
We resolve this question in this case on the basis of the Supreme Court’s observation that no more than rational basis scrutiny is generally appropriate “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement” (Cleburne v Cleburne Living Center, Inc., 473 US 432, 441 [1985]). Perhaps that principle would lead us to apply heightened scrutiny to sexual preference discrimination in some cases, but not where we review legislation governing marriage and family relationships. A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the{**7 NY3d at 365} State’s interest in fostering relationships that will serve children best. In this area, therefore, we conclude that rational basis scrutiny is appropriate.
Where rational basis scrutiny applies, “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest” (id. at 440). Plaintiffs argue that a classification distinguishing between opposite-sex couples and same-sex couples cannot pass rational basis scrutiny, because if the relevant state interest is the protection of children, the category of those permitted to marry—opposite-sex couples—is both underinclusive and overinclusive. We disagree.
Plaintiffs argue that the category is underinclusive because, as we recognized above, same-sex couples, as well as opposite-sex couples, may have children. That is indeed a reason why the Legislature might rationally choose to extend marriage or its benefits to same-sex couples; but it could also, for the reasons we have explained, rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships. Our earlier discussion demonstrates that the definition of marriage to include only opposite-sex couples is not irrationally underinclusive.
In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.
Rational basis scrutiny is highly indulgent towards the State’s classifications (see Heller v Doe, 509 US 312, 320-321 [1993]). Indeed, it is “a paradigm of judicial restraint” (Affronti v Crosson, 95 NY2d 713, 719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001]). We conclude [*8]that permitting marriage by all opposite-sex couples does not create an irrationally overnarrow or overbroad classification. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.{**7 NY3d at 366}
V
We hold, in sum, that the Domestic Relations Law’s limitation of marriage to opposite-sex couples is not unconstitutional. We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong. We have presented some (though not all) of the arguments against same-sex marriage because our duty to defer to the Legislature requires us to do so. We do not imply that there are no persuasive arguments on the other side—and we know, of course, that there are very powerful emotions on both sides of the question.
The dissenters assert confidently that “future generations” will agree with their view of this case (dissenting op at 396). 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. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result—as many undoubtedly will be—will respect it as people in a democratic state should respect choices democratically made.
Accordingly, the orders of the Appellate Division in each case should be affirmed without costs.
Graffeo, J. (concurring). We are asked by the 44 same-sex couples who commenced these four cases to declare that the denial of marriage licenses to same-sex couples violates the Due Process and Equal Protection clauses of the New York Constitution. Plaintiffs and petitioners (collectively referred to as plaintiffs) are representative of many homosexual couples living in committed relationships in our state, some of whom are raising children. They seek the societal recognition and legal and financial benefits accorded by the State to legally married couples. Respondents are the State of New York, the State Department of Health and local officials from the cities of New York, Albany and Ithaca who are involved either in overseeing the New York marriage licensing process or issuing marriage licenses. [*9]
Plaintiffs assert that the restriction of marriage to opposite-sex couples impedes the fundamental right to marry and amounts to gender or sexual orientation discrimination that does not withstand any level of constitutional analysis, whether{**7 NY3d at 367} strict scrutiny, intermediate scrutiny or rational basis review. Because the determination of the proper level of constitutional review is crucial to the judicial resolution of the issues in this case, I write separately to elaborate on the standard of review that should be applied under the precedent of this Court and the United States Supreme Court. I conclude that rational basis analysis is appropriate and, applying this standard, I concur in the result reached by the plurality that an affirmance is warranted in each of these cases.
This Court has long recognized that “[f]rom time immemorial the State has exercised the fullest control over the marriage relation,” going so far as to observe that “[t]here are, in effect, three parties to every marriage, the man, the woman and the State” (Fearon v Treanor, 272 NY 268, 272 [1936], appeal dismissed 301 US 667 [1937]). The historical conception of marriage as a union between a man and a woman is reflected in the civil institution of marriage adopted by the New York Legislature. The cases before us present no occasion for this Court to debate whether the State Legislature should, as a matter of social welfare or sound public policy, extend marriage to same-sex couples. Our role is limited to assessing whether the current statutory scheme offends the Due Process or Equal Protection clauses of the New York Constitution. Because it does not, we must affirm. Absent a constitutional violation, we may not disturb duly enacted statutes to, in effect, substitute another policy preference for that of the Legislature.
The Statutory Scheme:
As a preliminary matter, although plaintiffs have abandoned the argument (raised in Supreme Court in both Kane and Seymour) that the Domestic Relations Law already authorizes same-sex marriage because it does not explicitly define marriage as a union between one man and one woman, several amici continue to suggest that this Court can avoid a constitutional analysis by simply interpreting the statutory scheme to allow same-sex marriage. Our role when construing a statute is to ascertain and implement the will of the Legislature unless we are prevented from doing so by constitutional infirmity. It would be inappropriate for us to interpret the Domestic Relations Law in a manner that virtually all concede would not comport with legislative intent.
There is no basis to conclude that, when the Legislature adopted the Domestic Relations Law more than a century ago, it contemplated the possibility of same-sex marriage, {**7 NY3d at 368}much less intended to authorize it. In fact, the Domestic Relations Law contains many references to married persons that demonstrate that the Legislature viewed marriage as a union between one woman and one man—as seen by references to the parties to a marriage as the “bride” and “groom” (Domestic Relations Law § 15 [1] [a]) and “wife” and “husband” (Domestic Relations Law §§ 6, 12, 221, 248; see also CPLR 4502 [b]). Notably, high courts of other states with statutory schemes comparable to New York’s have interpreted the pertinent statutes as not authorizing same-sex marriage (see Goodridge v Department of Pub. Health, 440 Mass 309, 798 NE2d 941 [2003]; Baker v Nelson, 291 Minn 310, 191 NW2d 185 [1971], appeal dismissed 409 US 810 [1972]). And several of our prior cases alluded to the fact that the Domestic Relations Law precludes same-sex couples from marrying (Levin v Yeshiva Univ., 96 NY2d 484, 494 [2001]; Braschi v Stahl Assoc. Co., 74 [*10]NY2d 201, 210 [1989]). Because the Domestic Relations Law does not authorize marriage between persons of the same sex, this Court must address plaintiffs’ constitutional challenges to the validity of the marriage scheme, which are at the heart of this litigation.
Due Process:
Plaintiffs argue that the Domestic Relations Law violates article I, § 6 of the New York Constitution, which provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” Their substantive due process challenge is predicated on the assertion that the New York Constitution precludes the State from defining marriage as a union between one man and one woman because the right to privacy derived therein grants each individual the unqualified right to select and marry the person of his or her choice. If the Due Process Clause encompasses this right, and if it is one of the bundle of rights deemed “fundamental” as plaintiffs contend, the Domestic Relations Law would be subjected to the most demanding form of constitutional review, with the State having the burden to prove that it is narrowly tailored to serve compelling state interests.
But it is an inescapable fact that New York due process cases and the relevant federal case law cited therein do not support plaintiffs’ argument. While many US Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage{**7 NY3d at 369} right as involving a union of one woman and one man (see e.g. Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434 US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner v Oklahoma ex rel. Williamson, 316 US 535 [1942]). Whether interpreting New York’s Due Process Clause or its federal counterpart (which is textually identical), when this Court has addressed the fundamental right to marry, it has relied on federal precedent and similarly used the word “marriage” in its traditional sense. For example, in Cooper v Morin, we grounded the right of pretrial detainees to have contact visits with family on the “fundamental right to marriage and family life . . . and to bear and rear children” (49 NY2d 69, 80 [1979], cert denied sub nom. Lombard v Cooper, 446 US 984 [1980]), citing US Supreme Court cases highlighting the link between marriage and procreation. As the Third Department aptly noted in Samuels, to ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the US Supreme Court and this Court to recognize marriage as a fundamental right in the first place.
Nor has this Court recognized a due process right to privacy distinct from that articulated by the US Supreme Court. Although our Court has interpreted the New York Due Process Clause more broadly than its federal counterpart on a few occasions, all of those cases involved the rights of criminal defendants, prisoners or pretrial detainees, or other confined individuals and implicated classic liberty concerns beyond the right to privacy. Most recently, in People v LaValle (3 NY3d 88 [2004]), the Court concluded that the anticipatory deadlock charge in the Death Penalty Act violated New York’s Due Process Clause, even though it may have been upheld under the United States Constitution. Likewise, in Cooper (49 NY2d 69 [1979]), we held that the New York Due Process Clause protected the right of pretrial detainees in a county jail to have nonconjugal contact visits with family members, even though no such right had been deemed protected under the federal Due Process Clause. Even then, our analysis did not turn on recognition of broader family privacy rights than those articulated by the Supreme Court. Rather, [*11]the analysis focused on rejection of the rational basis test that the Supreme Court then applied to{**7 NY3d at 370} assess jail regulations,[FN1] with this Court instead adopting a test that “balanc[ed] . . . the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement” (id. at 79).
Most of our Due Process Clause decisions in the right to privacy realm have cited federal authority interchangeably with New York precedent, making no distinction between New York’s constitutional provision and the federal Due Process Clause (see e.g. Hope v Perales, 83 NY2d 563, 575 [1994]; Matter of Raquel Marie X., 76 NY2d 387 [1990], cert denied sub nom. Robert C. v Miguel T., 498 US 984 [1990]; Matter of Doe v Coughlin, 71 NY2d 48 [1987], cert denied 488 US 879 [1988]; Rivers v Katz, 67 NY2d 485 [1986]). Our Court has not recognized a fundamental right to marry that departs in any respect from the right defined by the US Supreme Court in cases like Skinner which acknowledged that marriage is “fundamental to the very existence and survival of the [human] race” because it is the primary institution supporting procreation and child-rearing (316 US at 541; see also Zablocki, 434 US 374; Griswold, 381 US 479). The binary nature of marriage—its inclusion of one woman and one man—reflects the biological fact that human procreation cannot be accomplished without the genetic contribution of both a male and a female. Marriage creates a supportive environment for procreation to occur and the resulting offspring to be nurtured. Although plaintiffs suggest that the connection between procreation and marriage has become anachronistic because of scientific advances in assisted reproduction technology, the fact remains that the vast majority of children are conceived naturally through sexual contact between a woman and a man.
Plaintiffs’ reliance on Loving v Virginia (388 US 1 [1967]) for the proposition that the US Supreme Court has established a fundamental “right to marry the spouse of one’s choice” outside the male/female construct is misplaced. In Loving, an interracial couple argued that Virginia’s antimiscegenation statute, which precluded “any white person in this State to marry any save a white person, or a person with no other admixture of{**7 NY3d at 371} blood than white and American Indian” (id. at 5 n 4), violated the federal Due Process and Equal Protection clauses. The statute made intermarriage in violation of its terms a felony carrying a potential jail sentence of one to five years. The Lovings—a white man and a black woman—had married in violation of the law and been convicted, prompting them to challenge the validity of the Virginia law.
The Supreme Court struck the statute on both equal protection and due process grounds, but the focus of the analysis was on the Equal Protection Clause. Noting that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States,” the Court applied strict scrutiny review to the racial classification, finding “no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification” (id. at 10, 11). It made clear “that restricting the freedom to marry solely because of racial classifications violates the central meaning of the [*12]Equal Protection Clause” (id. at 12). There is no question that the Court viewed this antimiscegenation statute as an affront to the very purpose for the adoption of the Fourteenth Amendment—to combat invidious racial discrimination.
In its brief due process analysis, the Supreme Court reiterated that marriage is a right “fundamental to our very existence and survival” (id., citing Skinner, 316 US at 541)—a clear reference to the link between marriage and procreation. It reasoned: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes . . . is surely to deprive all the State’s citizens of liberty without due process of law” (id.). Although the Court characterized the right to marry as a “choice,” it did not articulate the broad “right to marry the spouse of one’s choice” suggested by plaintiffs here. Rather, the Court observed that “[t]he Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations” (id. [emphasis added]).[FN2] Needless to say, a statutory scheme that burdens a fundamental right by making conduct criminal based on the race of the individual who engages in it is inimical to the{**7 NY3d at 372} values embodied in the state and federal Due Process clauses. Far from recognizing a right to marry extending beyond the one woman and one man union,[FN3] it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation.[FN4] [*13]
Nor does the Supreme Court’s recent federal due process analysis in Lawrence v Texas (539 US 558 [2003]) support defining the fundamental marriage right in the manner urged by{**7 NY3d at 373} plaintiffs. In Lawrence, the Court overruled its prior decision in Bowers v Hardwick (478 US 186 [1986]) and struck as unconstitutional a Texas statute that criminalized consensual sodomy between adult individuals of the same sex. The holding in Lawrence is consistent with our Court’s decision in People v Onofre (51 NY2d 476 [1980], cert denied 451 US 987 [1981]), which invalidated under a federal due process analysis a New York Penal Law provision that criminalized consensual sodomy between nonmarried persons.
In Lawrence the Supreme Court did not create any new fundamental rights, nor did it employ a strict scrutiny analysis. It acknowledged that laws that criminalize sexual conduct between homosexuals
“have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals” (539 US at 567).
Criticizing the historical analysis in Bowers, it noted that, even though sodomy as well as other nonprocreative sexual activity had been proscribed, criminal statutes “directed at homosexual conduct as a distinct matter” (id. at 568) were of recent vintage, having developed in the last third of the 20th century, and therefore did not possess “ancient roots” (id. at 570).
Consistent with our analysis in Onofre, the Lawrence court held “that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons” (id. at 567) because “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (id. at 572). It reasoned that “moral disapproval”—the only justification Texas proffered for its law—is never an adequate basis for a criminal statute, a conclusion similar to this Court’s observation in Onofre that “it is not the function of the Penal Law in our governmental policy to [*14]provide either a medium for the articulation or the apparatus for the intended enforcement of moral or theological values” (51 NY2d at 488 n 3). Thus, in striking the sodomy law, the Supreme Court found that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” (Lawrence, 539 US at 578).{**7 NY3d at 374}
The right affirmed by the Supreme Court in Lawrence is not comparable to the new right to marry plaintiffs assert here, nor is the Texas statute criminalizing homosexual sodomy analogous to the marriage statutes under review. The Domestic Relations Law is not a penal provision and New York has not attempted to regulate plaintiffs’ private sexual conduct or disturb the sanctity of their homes. And, in contrast to the Texas statute, New York’s marriage laws are part of a longstanding tradition with roots dating back long before the adoption of our State Constitution.
New York’s Due Process Clause simply does not encompass a fundamental right to marry the spouse of one’s choice outside the one woman/one man construct. Strict scrutiny review of the Domestic Relations Law is therefore not warranted and, insofar as due process analysis is concerned, the statutory scheme must be upheld unless plaintiffs prove that it is not rationally related to any legitimate state interest.
Equal Protection:
Plaintiffs contend that, even if strict scrutiny analysis is not appropriate under the Due Process Clause, a heightened standard of review is nonetheless mandated under the Equal Protection Clause because New York’s marriage laws create gender and sexual orientation classifications that require a more rigorous level of analysis than rational basis review.
The Equal Protection Clause, added to the New York Constitution in 1938, provides:
“No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state” (NY Const, art I, § 11).
Soon after the adoption of this provision, this Court recognized that it was modeled after its federal counterpart and “embodies” the federal equal protection command (Dorsey v Stuyvesant Town Corp., 299 NY 512, 530 [1949], cert denied 339 US 981 [1950]; see also, Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360 n 6 [1985] [”the State constitutional equal protection clause . . . is no broader in coverage than the Federal provision”]). Accordingly, this Court has consistently cited federal cases and applied federal{**7 NY3d at 375} analysis to resolve equal protection claims brought under the federal and state constitutions (see e.g. Matter of Aliessa v Novello, 96 NY2d 418 [2001]; People v Liberta, 64 NY2d 152 [1984], cert denied 471 US 1020 [1985]).
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike” (Cleburne v Cleburne Living Center, Inc., 473 US 432, 439 [1985]). Both the US Supreme Court and this Court have applied three levels of review to legislative classifications. “[W]hen a statute classifies by race, alienage, or national origin” (id. [*15]at 440), or when it burdens a fundamental right protected under the Due Process Clause, it is subjected to strict scrutiny meaning that it will be sustained only if it is narrowly tailored to serve a compelling state interest (see Golden v Clark, 76 NY2d 618, 623 [1990]). Classifications based on gender or illegitimacy are reviewed under an intermediate level of scrutiny—meaning they will be sustained if “substantially related to the achievement of an important governmental objective” (Liberta, 64 NY2d at 168; Clark v Jeter, 486 US 456 [1988]). Neither the Supreme Court nor this Court has recognized any other classifications as triggering heightened scrutiny and, therefore, all other statutory distinctions have been sustained if rationally related to a legitimate government interest (see e.g. Golden, 76 NY2d 618).
Plaintiffs argue that the Domestic Relations Law creates a classification based on gender that requires intermediate scrutiny because a woman cannot marry another woman due to her gender and a man cannot marry another man due to his gender. Respondents counter that the marriage laws are neutral insofar as gender is concerned because they treat all males and females equally—neither gender can marry a person of the same sex and both can marry persons of the opposite sex.
Respondents’ interpretation more closely comports with the analytical framework for gender discrimination applied by this Court and the Supreme Court. The precedent establishes that gender discrimination occurs when men and women are not treated equally and one gender is benefitted or burdened as opposed to the other. For example, in Liberta (64 NY2d 152), we held that the Penal Law’s restriction of the crime of forcible rape to male offenders constituted gender discrimination and the restriction was struck on the basis that it failed to meet the intermediate scrutiny standard. Men and women were not treated equally because only men could be convicted of forcible rape; women who engaged in precisely the same conduct could{**7 NY3d at 376} not be charged or convicted of the same offense. Similarly, in Mississippi Univ. for Women v Hogan (458 US 718 [1982]), the Supreme Court found that a publically-funded state university that refused to allow men admission to its nursing program had engaged in gender discrimination. The university improperly privileged female students by allowing them a benefit not available to similarly-situated male applicants. Likewise, in J. E. B. v Alabama ex rel. T. B. (511 US 127 [1994]), a prosecutor was determined to have engaged in gender discrimination when he exercised 9 of his 10 peremptory challenges to strike males from the venire panel resulting in an all-female jury. There, the prosecutor did not apply jury selection criteria equally among males and females—he used almost all of his challenges to exclude men from the jury.
Plaintiffs cite Loving for the proposition that a statute can discriminate even if it treats both classes identically. This misconstrues the Loving analysis because the antimiscegenation statute did not treat blacks and whites identically—it restricted who whites could marry (but did not restrict intermarriage between non-whites) for the purpose of promoting white supremacy. Virginia’s antimiscegenation statute was the quintessential example of invidious racial discrimination as it was intended to advantage one race and disadvantage all others, which is why the Supreme Court applied strict scrutiny and struck it down as violating the core interest of the Equal Protection Clause.
In contrast, neither men nor women are disproportionately disadvantaged or burdened by the fact that New York’s Domestic Relations Law allows only opposite-sex couples to marry—both genders are treated precisely the same way. As such, there is no gender [*16]classification triggering intermediate scrutiny.
Nor does the statutory scheme create a classification based on sexual orientation. In this respect, the Domestic Relations Law is facially neutral: individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex. Certainly, the marriage laws create a classification that distinguishes between opposite-sex and same-sex couples and this has a disparate impact on gays and lesbians. However, a claim that a facially-neutral statute enacted without an invidious discriminatory intent has a disparate impact on a class (even a suspect class, such as one defined by race) is insufficient{**7 NY3d at 377} to establish an equal protection violation[FN5] (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 321 [1995]; People v New York City Tr. Auth., 59 NY2d 343, 350 [1983]; Washington v Davis, 426 US 229, 240 [1976]). Plaintiffs concede that the Domestic Relations Law was not enacted with an invidiously discriminatory intent—the Legislature did not craft the marriage laws for the purpose of disadvantaging gays and lesbians (cf. Romer v Evans, 517 US 620 [1996]). Hence, there is no basis to address plaintiffs’ argument that classifications based on sexual orientation should be subjected to intermediate scrutiny.
Rational Basis Review:
Thus, under both the Due Process and Equal Protection clauses, these cases turn on whether the Legislature’s decision to confine the institution of marriage to couples composed of one woman and one man is rationally related to any legitimate state interest. In Affronti v Crosson (95 NY2d 713, 719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001]), we explained that
“[t]he rational basis standard of review is a paradigm of judicial restraint. On rational basis review, a statute will be upheld unless the disparate treatment is so unrelated to the achievement of any combination of legitimate purposes that it is irrational. Since the challenged statute is presumed to be valid, the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . whether or not the basis has a foundation in the record. Thus, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” (Internal quotation marks, citations, brackets and emphasis omitted.)
Especially in the realm of social or economic legislation, “the Equal Protection Clause allows the States wide latitude . . . and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes”{**7 NY3d at 378} (Cleburne, 473 US at 440; see generally Lovelace v Gross, 80 NY2d 419, 427 [1992]).
In these cases, respondents articulate a number of interests that they claim are legitimate and are advanced by the current definition of marriage. Given the extremely deferential standard of review, plaintiffs cannot prevail unless they establish that no conceivable [*17]legitimate interest is served by the statutory scheme. This means that if this Court finds a rational connection between the classification and any single governmental concern, the marriage laws survive review under both the Due Process and Equal Protection clauses.
As set forth in the plurality opinion, plaintiffs have failed to negate respondents’ explanation that the current definition of marriage is rationally related to the State’s legitimate interest in channeling opposite-sex relationships into marriage because of the natural propensity of sexual contact between opposite-sex couples to result in pregnancy and childbirth. Of course, marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing, such as companionship and emotional fulfilment. But here we are concerned with the State’s interest in promoting the institution of marriage.
As Justice Robert Cordy pointed out in his dissent in Goodridge v Department of Pub. Health (440 Mass at 381-382, 798 NE2d at 995 [Cordy, J., dissenting]):
“Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of human society. . . . Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. . . . [A]n orderly society requires some mechanism for coping with the fact that sexual intercourse [between a man and a woman] commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.”
Since marriage was instituted to address the fact that sexual contact between a man and a woman naturally can result in{**7 NY3d at 379} pregnancy and childbirth, the Legislature’s decision to focus on opposite-sex couples is understandable. It is not irrational for the Legislature to provide an incentive for opposite-sex couples—for whom children may be conceived from casual, even momentary intimate relationships—to marry, create a family environment, and support their children. Although many same-sex couples share these family objectives and are competently raising children in a stable environment, they are simply not similarly situated to opposite-sex couples in this regard given the intrinsic differences in the assisted reproduction or adoption processes that most homosexual couples rely on to have children.
As respondents concede, the marriage classification is imperfect and could be viewed in some respects as overinclusive or underinclusive since not all opposite-sex couples procreate, opposite-sex couples who cannot procreate may marry, and opposite-sex partners can and do procreate outside of marriage. It is also true that children being raised in same-sex households would derive economic and social benefits if their parents could marry. But under rational basis review, the classification need not be perfectly precise or narrowly tailored—all that is required is a reasonable connection between the classification and the interest at issue. In light of the history and purpose of the institution of marriage, the marriage classification in the Domestic Relations Law meets that test.
The Legislature has granted the benefits (and responsibilities) of marriage to the class—opposite-sex couples—that it concluded most required the privileges and burdens the [*18]institution entails due to inherent procreative capabilities. This type of determination is a central legislative function and lawmakers are afforded leeway in fulfilling this function, especially with respect to economic and social legislation where issues are often addressed incrementally (see FCC v Beach Communications, Inc., 508 US 307, 315-316 [1993]). It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate. Because the New York Constitution does not compel such a revision of the Domestic Relations Law, the decision whether or not to do so rests with our elected representatives.{**7 NY3d at 380}
See also:
http://www.courts.state.md.us/opinions/coa/2007/44a06.pdf
http://www.courts.wa.gov/newsinfo/content/pdf/759341opn.pdf
http://marriagelaw.cua.edu/law/cases/az/standhardt/appct/opinion.pdf
The Union is saved.
Totally agree, and I’ve posted the same idea but not in as much detail and reasoning as you have.
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