New York's Court of Appeals made a wise and brilliantly articulated decision when it ruled, back in 2006, that the question of same-gender marriage was not a constitutional question but one for the Legislature. The court didn't tell the Legislature how to vote, but it did call for a debate on the matter.
"We believe the present generation should have a chance to decide the issue through its elected representatives," Judge Robert Smith wrote for the majority. "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."
It's hard to imagine the court had in mind anything like the night time vote which the Assembly, with scant warning and without any public hearings, passed a same-gender marriage bill this week in a process that effectively snubbed religious New Yorkers. This issue was flagged in a press release issued Wednesday by the Agudath Israel of America, which speaks for fervently religious Jews.
Orthodox Jewry isn't the only religious community that was stunned at the fact that, as the Aguda's executive vice president for government and public affairs Rabbi David Zwiebel, pointed out, the Assembly's Judiciary Committee "never even scheduled a hearing on the proposal, as should be customary for controversial, revolutionary legislation of this sort." But it has made its arguments with typical cogency.
Rabbi Zwiebel argued that a hearing would have "brought to the fore," as he put it, "numerous problems" with the bill, including "its negative impact on religious communities like ours." The Aguda warned that "members of communities like ours will incur moral opprobrium and may risk legal sanction if they refuse to transgress their beliefs" in the face of the legalization of same-sex marriages. The views voiced by the Aguda are shared by all factions of Orthodox Judaism, the Catholic Church, and scores of religious communities throughout our city and state.
The speaker of the Assembly, Sheldon Silver, knew precisely what he was doing. Our Jacob Gershman encountered him on May 30 and asked him about the hearing process in general. The speaker rattled on about how hearings are needed to give lawmakers a fuller sense of the public's concern on congestion pricing, as it would in the case of a bill to expand the state's database of deoxyribonucleic acid. He called hearings an important forum for guiding lawmakers on issues that affect many people.
Mr. Gershman then asked him about hearings on the gay marriage bill. "There are only so many public hearings that we're going to do," the speaker snapped. The docket tells the story. In the last two weeks, Assembly committees have held public hearings on energy conservation, tax incentives for businesses, and the agricultural market. But the question of gay marriage, which would alter the definition of a contract that has existed since the founding of the state, appears on no hearing list in the Assembly.
So of what is the Legislature afraid? Our guess is that it is the fact that the campaign for gay marriage has been advanced in New York state — and many others — on, at least in part, a false premise. Namely that opponents of same-sex marriage are bigots. This was evident in the first lower court ruling in favor of same-gender marriage, issued two years ago in Manhattan state court by Judge Doris Ling-Cohan, who started her opinion with a disquisition on the racist anti-miscegenation laws that were on the law books in a number of states in the not so distant past.
The state's highest court quickly saw through Judge Ling-Cohan's error. In the majority opinion in Hernandez v Robles, Judge Robert Smith wrote: "The traditional definition of marriage is not merely a by-product of historical injustice." Of the strongly held belief by many that marriage is for a man and a woman only, Judge Smith had this to say: "a court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted." New Yorkers had a right to expect the Legislature to give our religious communities a hearing.
Not that advocates of same-gender marriage are without their standing, either. They have been well-organized and effective and are no less passionate about the issue than is the religious community. It is no small thing that advocates of same-gender marriage have been gaining ground in a number of states. Massachusetts's own legislature, once thought to be prepared to put a stop to same-gender marriage following a radical ruling from its highest court, recently flinched from forcing the issue. The result is that homosexual couples will continue to be able to marry in the Bay State.
In Albany, the Senate is unlikely to do what the Assembly did this week. If the Senate doesn't take the issue up before the end of 2008, the Assembly will be forced to take up this issue again. Which means that the rush this week can serve as a wake-up call to the religious community that it cannot count on the legislative leadership to give them a hearing; they will have to press for it, demand it even, and stay on their toes. Our own belief is that marriage is a contract that is far too important, sacred even, to alter without everyone being given a chance to express his or her concerns.
