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Friday, December 09, 2005

“A committed, socially esteemed relationship”

A New York court of appeals has invalidated a lower court’s ruling that would have paved the way for a judicial re-definition of marriage. The court’s 4-1 decision in Hernandez v. Robles, as Ann Althouse says, is a strong defense not of “heterosexual marriage”, as the Times reports, but of the right of the legislature—of the people—to determine what constitutes a marriage and to limit that vow as they see fit.

There are social and cultural arguments to be made in favor of traditional marriage. I’ve touched upon some of them in “Same Sex Marriage And 1900”, rather early in the life of Dartblog.

But the court considers only the law. In the legal world, the burden rests on plaintiffs to demonstrate how the maintenance of the traditional definition of marriage violates the Equal Protection clause of the United States Constitution. The New York appeals court, if my understanding is correct, ruled essentially that the current state of marriage in the Empire State does indeed provide equal protection under the law because, quite simply, every man no matter his sexual preference is free to marry one woman no matter her sexual preference. (It is well worth noting that Harvard professors, grasping at an argument they hate in other venues, are attempting to use this line of reasoning to defeat the Solomon amendment.)

Because the limitation of marriage in that regard is constitutionally valid, the job of expanding or revising the definition falls squarely in the court of public opinion and, consequently, in the legislature. A judge simply cannot rule a statute unconstitutional when it is not, no matter how persuasively the complainant argues what the law ought to be.

The court said, “Marriage promotes sharing of resources between men, women and the children that they procreate. It is based on the presumption that the optimal situation for child-rearing is having both biological parents present in a committed, socially esteemed relationship.”

Although activists in favor of gay marriage—and the Times must be included in that coterie—understandably see the above passage as a clarion defense of the traditional definition of marriage, the intent and the legal effect of those words is not to pass judgment on the vow itself, but to decisively pronounce that Americans do indeed have a right to limit marriage in the furtherance of cultural goals and national stability. That elected lawmakers get to decide, and not the courts. And, as a bulwark, that the existence of the institution of marriage as between one man and one woman is eminently constitutional, because the institution is open to all. Some want to change what that institution is or what it does. That is the legislative question.

The New York Times article ably (if inadvertently) puts on display the speciousness of advocating a judicial solution. New York City Mayor Michael Bloomberg is indirectly quoted as being ‘personally in favor of same-sex marriage.’ His statement following the decision is then quoted: “As I have said, this issue should be decided by the state’s highest court, and I assume today’s decision will be appealed. If today’s decision is affirmed by the Court of Appeals, I will urge the Legislature to change the State’s Domestic Relations Law to permit gay marriage.”

Mr. Bloomberg has as much as admitted that there is no proper path to legalizing gay marriage. If the appeals court had upheld the lower court ruling, he would have been happy. Since it invalidated it, he presumes the case will advance to the next judicial body. If the state Supreme Court then rules in favor of gay marriage, he’ll again be happy. If it rules against, he’ll just take it to the legislature. Where it will fail. There is no regard here for separation of powers. There is only sad, sad expediency: the only way, it seems, for a law contrary to the will of the American people to be promulgated. The appeals court’s recommendation, then, should apply to same-sex marriage activists as well: develop a committed, socially esteemed relationship with the rule of law and the role of the courts. Then work on convincing the citizenry that you’re right, rather than a few judges.

Posted on December 9, 2005 07:18 AM. Permalink