In traveling around the country I have been a bit remiss in reporting on the New York case (pdf alert) in which the New York Supreme Court, by a vote of 4-2, ruled that the state was within its legitimate power to define marriage as between a man and a woman. The court says there is nothing in the New York or United States constitutions that grants a right to marry someone of the same sex. I have only skimmed the case, but essentially the majority says that there is no fundamental right to marry someone of the same sex and the the definition of marriage as between a man and a woman meets the "rational basis" test.
The court offers two possible rationales for limiting marriage to its current man-woman character. First, a legislature could rationally conclude that marriage exists to promote stability and opposite sex relationships are inherently more stable. Second, a legislature could rationally conclude that it is better for children to grow up with both male and female parents in the home and in a committed relationship, thus it is in the state's interest to encourage opposite sex marriage but not marriage of same-sex couples. The court stresses that these are not exhaustive rationales for traditional marriage. Also, the court stresses that the individual members of the court may or may not accept these rationales, but these are rationales that reasonable people may hold and that absent clear constitutional language this is a matter best left to the prudence of legislators, not to the rulings judges.
The dissenters essentially offer an historical analysis of the definition of marriage suggesting that the current definition is not deeply rooted in the nation's history. There is also a disagreement with the majority about whether a fundamental constitutional right is at stake. The dissenters say yes; the majority says no.
Eugene Volkh, a proponent of same-sex marriage, points out that the response by Howard Dean, Chair of the Democratic National Committee, is a bit odd. Dean denounces the majority as holding bigoted views on marriage and family, yet goes on to say that debate over gay marriage should "proceed without...rancor and divisiveness..." How can debate proceed without rancor and divisiveness when one side sees the other as composed of nothing but bigots? One also wonders if the official possition of the Democratic Party now favors same-sex marriage and that those who are opposed to same-sex marriage are simply bigots. That possition would find some favor in the South Dakota left-wing blogosphere.
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