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Balkin [Yale]: The NY Same Sex Marriage Case

Jack Balkin, Yale Law School:

"In Hernandez v. Robles a New York State trial court judge held that the New York State constitution prohibited restricting marriage to opposite sex couples.

The court held that prohibition on same sex couples violated the Due Process Clause and Equal Protection Clauses of the New York State Constitution. The court did not remand to the legislature to fix the law, as the Vermont Supreme Court did in Baker v. State. Instead, the Court noted that the specific provision of the Domestic Relations Law which governs marriage licenses did not specifically exclude same sex couples by its language, but that other accompanying statutes did refer to husbands and wives, brides and grooms. Therefore, the appropriate remedy, the court argued, was to read the accompanying New York statutes so "that the words `husband', `wife', `groom', and `bride', as they appear in the relevant sections of the Domestic Relations law are and shall be construed to mean `spouse' and all personal pronouns, as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to either men or women."

Hernandez is a puzzling case on two counts. First, the Due Process argument is that the right of privacy under the New York State Constitution includes a right to marry, which the Court says is the right to choose whom to marry. But the problem is that this would undermine state laws regarding incest and polygamy as well, and the court makes no attempt to distinguish those cases from the case of same-sex marriage. Indeed, at one point in the opinion (p. 45), the court uses the example of polygamy to show that marriage has meant different things at different times and in different places. Perhaps the court really means to say that as applied to same sex couples, the state has provided no compelling reasons for restricting who may marry, leaving to another day the question of whether there would be compelling reasons in cases of incest and polygamy. But if that is the holding of Hernandez-- and perhaps it is the best reading of the case-- the point is nowhere clearly expressed. And what is puzzling about the opinion is that the court does not even seem to spot the difficulty.

The court also says that prohibition on same sex marriages violates New York's Equal Protection Clause. The court does not hold that the prohibition violates sex equality because it restricts the choice of a person's marital partner on the basis of one's sex. Rather, the court holds that the restriction violates the prohibition against discrimination on the basis of sexual orientation. The New York Court of Appeals has not held that discrimination based on sexual orientation requires heightened judicial scrutiny. Nevertheless, the court in Hernandez argued that the state of New York did not offer even a rational basis for excluding same sex couples from marriage. This part of the opinion is quite short and, because it is so short, it is not very convincing. At least the Massachusetts court in Goodridge spent some time trying to explain why the state's reasons failed the test of rational basis. What the court says in Hernandez is mostly conclusory.

I have no idea whether this case will be affirmed by the New York Court of Appeals. But if it is affirmed, it will have to be for somewhat different reasons than the court gives here. The court has not given the New York Court of Appeals very much to work with. It will pretty much have to start from scratch.

I strongly support same sex marriage, but my decided preference is for legislatures to adopt reform of the marriage laws rather than have courts impose the reform. If courts are going to get involved, I greatly prefer the approach of the Vermont Supreme Court in Baker v. State-- hold that the current law is unconstitutional, explain the rough contours of the constitutional principles that a statute would have to satisfy, and send the issue to the legislature to come up with a solution. That is not the same thing as having the legislature take the issue up on its own, but it does have the advantage of giving the result some degree of democratic ratification. My view is that this is probably what the U.S. Supreme Court should have done in Roe v. Wade and Doe v. Bolton as well.

For this reason, I would argue that if the New York Court of Appeals decides to uphold this case (although it will have to be on different grounds), it should reverse the trial court's remedy and give the New York Legislature 90 days to come up with a statutory solution." [January 21, 2005; Balkinization has the post.]

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