NY Court of Appeals decision here.
It appears they’ve squarely tossed it to the NY Assembly and Senate. This should set up a battle there, although I’m not sure what direction the NY legislature leans on SSM.
Other thoughts: if NY approves SSM, but then a later legislature changes the law, what does that do to those who were married legally?
Does this decision set up a US Supreme Court case whereby the Roberts Court can a)declare no constitutional right to SSM under state or federal constitution and b) leave it up to each state?
And, would this rationale let the Roberts court do the same for abortion?
Just playing out the string here a bit…
Oh, and I think the MA legislature should pass a law stating that SSM would be legal under state law if and when any constitutional right to SSM was taken away.
Chief Judge Kaye’s dissent is well worth a read.
the Roberts Court cannot say anything about what any state’s constitution does or does not provide. Federal courts cannot overrule a state court’s interpretation of its own constitution. They can rule (and have ruled, in some cases) that the US constitution itself overrides the state constitution in some respect – e.g., the US constitution requires protections in some criminal cases that state constitutions do not – but if the Supreme Court were to rule that the US constitution does not guarantee a right to same-sex marriage, that would simply leave it to the states to decide the issue themselves. Same for abortion, unless the Supreme Court went way off the rails and concluded that fetuses are entitled to constitutional protections.
But wait, didn’t the Supreme Court over-rule the Florida Supreme court in Bush v. Gore by holding the vote recount unconstitutional after the FSC held it was ok? And I’m asking seriously too. I’m wondering what sort of precedent is holding sway these days with regard to the USSC overriding state decisions.
The FSC ruling violated the constitution according to the SCOTUS. That was the basis for the higher court overruling the state court. The SCOTUS made up what I consider a completely bogus equal rights claim that the standard for determining the vote was not uniform and therefore unconstitutional. The supremacy clause of the constitution is the precedent that holds sway allowing the SCOTUS to trump a state supreme court but, as David mentioned, this can only occur when there is a conflict with federal law.
I forgot about the equal rights portion. Haven’t revisited the case in a while. Too painful.
I am no legal scholar, but I am pretty sure that Michigan v. Long essentially says that if a state court’s decision is based on “independent and adequate” state constitutional grounds, then SCOTUS can’t touch it.
Just one more thing, I am pretty sure this is the same case that illuminates what David is talking about. It is the idea that the U.S. Constitution’s guarantees are a minimum floor, and states can expand rights beyond those. It is generally called judicial federalism I think, pretty interesting stuff.
There is the doctrine of preemption that may preclude a state from legislating at all in an area. I am expanding on your “minimum floor” concept because it isn’t entirely accurate. For instance, no state can create their own FAA because the federal government “owns” the whole of aviation regulation. States aren’t allowed to set stricter standards. So while you are generally right there are some areas where the fed law is both the minimum and the maximum.
Thanks, I was thinking more generally about powers reserved to the states but my post was murky so thank you very much for the assist.
Why can’t the federal government then preempt states by issuing all gun regulations? Maybe then I can purchase the same pistols issued to the Boston Police Department.
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What determines what the federal government can preempt?
Isn’t that a great answer? I think the reason the fed gov couldn’t regulate gun licensing is the 10th Amendment. The licensing of guns is not a power specifically enumerated to the federal government which means that it falls to the state governments. Furthermore, because licensure is traditionally a state function our jurisprudence would say that licensing guns would then be a state, rather than a federal, function. At least that is my best guess. The federal government can only preempt where the Constitution has the federal government has authority.
….you want the Legislature to pass a law that would trump any future court decision with which you do not agree, while currently relying upon a court decision that you do agree with to trump any Legislative action that would thus be struck down?
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WHY are you so afraid of the voters? Really, I honestly think that they would be your best safeguard – a loss at the polls for the anti-gay marriage forces would be an unanswerable argument.
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Imagine if Susan B. Anthony had relied upon a court decision instead of gradually changing minds in legislatures nationwide FOR WHICH THEY COULD NOT VOTE – we would STILL be debating the ‘validity’ of women’s suffrage, instead of having a vote that put the whole thing to bed once and for all in 1920.
Are we still debating the ‘validity’ of interracial marriage?
Gay marriage existed since the Commonwealth’s inception based on what was said in Goodrich. No new laws needed to be created. There was nothing to be put before the people because the issue had been decided. The SJC found that our Constitution prevented homosexuals from be discriminated against. Are you suggesting that if there isn’t an explicit law for or against something then a court cannot rule? Do you object to the notion that corporations are given the status and protections of an individual when in fact the Constitution does not explicitly state as much? Any indignation there or does your ire rise just when the decision is one you do not support?
Since the interpretation of the courts says that gay marriage is protected under the Mass. constitution, the petition is an attempt to AMEND that constitution – then, gay marriage would, perforce, be unconstitutional.
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The electorate is allowed to attempt this. The Legislature has seen fit, for approx. 7 years, to deny the electorate a vote. As I said, I think the vote would favor gay marriage, and the amendment would be defeated.
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Unless people ARE allowed to vote, this isn’t going to just go away. As citizens of the Commonwealth, we have a Right of Free Petition. People on both sides of the question resent this, like they do Clean Elections and the Tax Rollback. The only petition the Legislature HAS allowed to proceed untampered is the banning of cruel leghold traps!
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BTW – I am sometimes amused at the mental image of a choleric John Adams being told that gay marriage existed under his precious baby, the Mass. constitution.
But that is because for all of their brilliance the Founders were a big, uh, bigots. As for the voters, our process requires some legislative involvement which means that it may not reach the voters. I don’t have a problem with that. I am happy to have a check on the people, I think it is essential. Furthermore, because people elected the representatives I feel like, in a circular sort of way, that they are in fact voting on the amendment.
I love it when conservatives bring the founding fathers into discussions about gay marriage – as though gay marriage alone would make John Adams uncomfortable with the realities of the 21st century. On top of inter-racial marriage, women’s sufferage, divorce, the collapse of religion as a major influence on the lives of Americans. To say nothing of space travel, medicine, television, the internet and fruit roll-ups.
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Personally, I couldn’t care less what his personal feelings were on this particular subject. What I DO know is that he ushered in a form of government that contains checks and balances that empower majorities, but also protect minorities by not allowing certain inalienable rights to be trampled on. The best expression of this principle has been found to exist by the Supreme Judicial Court in the Massachusetts constitution. And that constitution has been interpreted so as to not deny homosexuals the right to marry.
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So, petition away my conservative friend. But you’re going to be increasingly seen as tilting at the wind-mills because the gay marriage train has sailed, and she ain’t comin’ back.
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maybe that’s why it [gay marriage] hasn’t gotten off the ground.
That made me laugh, but I have a strange sense of humor.
In any case, I completely agree. I have yet to see anyone who advocates for the ballot initiative explain why that would be any different from putting interracial marriage to a vote. I also have a hard time seeing how conservatives look at certain rulings, which simply represent an interpretation of the law, and can call that “legislating from the bench.” Disagree with a ruling all you want, but saying that making laws adhere to the constitution amounts to legislation severely hampers the judicial branch’s ability to work as a check on the other branches. Activist judges seem to simply be judges that don’t rule in a certain way.
Sorry, the train thing is an Austin Powers reference. And also, I think, a British phrase in general.
was bashed by the NY Supreme court decision :
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“The judges concluded that legislators could reasonably believe that such marriages benefited children. Unlike racism, the judges concluded, “the traditional definition of marriage is not merely a by-product of historical injustice.”
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To me the envelope has always been pushed when using this argument in a civil rights context.
relied heavily on the history of miscegenation laws in arguing that restricting marriage to straight couples was unconstitutional. Reasonable minds disagree on this one.
the miscegenation laws relate to different sex couples and to compare the two social problems is a real stretch. Yes, reasonable legal minds may disagree in New York but in this state unfortunately , we have a displaced, guilt ridden , South African apologist that should not be ruling on social issues.
The New York court, in a 4-to-2 opinion written by Judge Robert Smith, sidestepped the question of whether same-sex marriage is worthwhile. “It is not for us to say whether same-sex marriage is right or wrong,” the court wrote, saying that persuasive arguments exist on both sides.
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Instead, the court focused on whether the state Legislature had a rational, nondiscriminatory basis for limiting marriage to a man and a woman. The judges concluded that legislators could reasonably believe that such marriages benefited children. Unlike racism, the judges concluded, “the traditional definition of marriage is not merely a by-product of historical injustice.”
Nobody would suggest now that the validity of the Jim Crow laws should have been put to a poplular vote. This is a civil rights issue. My prediction is that in 40 years these anti-marriage equality forces will be seen as the Bull Connors of their day.
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Legislation trumps our state constitution?
I think this was a poorly worded attempt at saying that all current married couples should stay married, regardless of any constitutional change.
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hoss, care to elaborate?
he meant that the Legislature should pass a law specifically authorizing gay marriages in the possible future event that the SJC reverses itself and says that there is no constitutional bar to banning gay marriage.
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This is unecessary, however, because the marriage statutes have already been changed by the Legislature as a result of the SJC’s decision.
Actually, I can see the value of specifically writing into the marriage statute that people can marry persons of the same gender. That just makes it more clear than simply dropping the prohibition against gay marriage.
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I bet this indeed what hoss meant by his comment.
Actually, Adams was far less racist or sexist than his contemporaries – witness his defense of the crew of the Amistad, and his relationship with Abigail.
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Rights inferred in his constitution? Well, he WAS a peppery old fellow…
Far be it from me to correct you on history, but wasn’t it John Quincy Adams who defended the Amistad captives?
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John Adams died in 1826, and the Amistad revolt was in 1839.
And Mr. Porcupine is hoisted by his own historical petard. Well done, sco.
Can he stll have brownie points for Abigail?
The mean porcupine has it out for me! Oh sco, thank you! See what sort of moron I am, I just took the punch, didn’t even think to Google it. And no matter how you slice it the Founders weren’t that interested in have non-white, non-land owning individuals have a say in government. They talked a good talk for sure but our history shows the real sentiment of the time.
I am a supporting of SSM. I am such for many reasons, not the least of which is that the right to marry is a fundamental, deniable to no one. But this case isn’t a joke because the outcome is different from what I believe to be legally and morally the truth. This case is a joke because of shame reasonsing. I have had the opportunity to read the entire case and I have never seen such poor reasoning in a judicial opinion. The first section which determined that the Legislature had a rational basis for denying gay marriage was full of reasoning that was dependent on “common sense” interpretations of marriage is about. Can someone describe to me what “common sense” is? Is something common sense when two people disagree? Isn’t my disagreement from the court’s reasoning proof that their “sense” isn’t “common?”
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The court finds that because heteros engage in promiscuity that can lead to babies we need to sort of inducement (read financial “windfall” for married folks) to get people into long lasting, committed relationships. The court believes that because two homosexuals engaged in sex cannot produce a child then they don’t need the inducement and therefore can be discriminated against. That is the sort of logic, or rather lack there of, that was being used by the NY court. Sad.
Were the right-wing talking points littered all over the decision.
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Apparently, while every single serious study ever done (that I know of, which is quite a bit) is wrong… apparently, the 1-6 million children raised by gay parents aren’t happy, well-adjusted children.
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Because the Supreme Court said it was all about the kids and the need for one mother and one dad.
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Okay, let’s ban single parents!
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Oh, and it was about the history and tradition – that’s why gay people don’t have a right. Well, it’s in our nation’s history and tradition to have slaves and to keep women from voting, so let’s go impliment those plans too.
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Ugh. I can’t believe I even let myself start on that ruling. I can understand if they said they didn’t find the right in NY Law or in the NY Constitution. Fine. But don’t go spouting right-wing, hateful talking points either.
the court wasn’t saying that it necessarily agreed with the legislature’s determination that the gay marriage had a negative effect on children, simply that this (and history, etc.) gives the legislature a rational basis for banning it.
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Nevertheless, I’m with the SJC that made clear that the state simply had offered no rational reason for the ban. And that’s really what it comes down to. There are no secular, rational reasons for why it should be banned. And that’s why the NY court erred, not because it agreed with the right-wing talking points you mention.
The rational basis that the court found was based on nothing. They cite no factual foundation for concluding that a mom/dad household is better at raising a child than a mom/mom or dad/dad. In fact after a lengthy discussion they court concludes that “common sense” is ultimately what the Legislature’s rationality can be based on. Common sense is hardly a rational why to make an informed decision.
You hit upon the exact reason why I think the NY court’s decision was flawed. They recognize that “rational basis” is a very low threshold, but fail to actually articulate any truly “rational” argument sput forward by the legislature.
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This is still different then them holding that the legsilature made the “better” argument in the gay marriage debate. But what they should have held is that the legislature made no (rational) argument at all, apart from mere pretext for discriminatory policies.