Prejudice or Religion?
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
The issue we will be listening for today in the hearing at the Supreme Court in respect of same sex marriage is religion. All our life we’ve abhorred bullies, and we react viscerally against what has come to be called gay bashing. But all too often, for our taste, the campaign for gay rights and same-sex marriage has cast its own aspersions on the religious communities in America. This is what we are going to cock an ear for as the justices take their seats on the high bench today. It will be no triumph if due process and equal protection are extended to same-sex couples at the expense of those who regard as sacred the laws brought down from Sinai and the religious rulings that have been made by the sages.
We have written about these concerns before, starting with an editorial called “Simply About Prejudice.” That was a phrase used by the New York Times to describe opposition to same-sex marriage. It was writing about the decision of Massachusetts’ highest court, in Goodridge v. Dept. of Public Health, to recognize same-sex marriage. The Times likened laws against same-sex marriage to the laws against interracial marriage. So did Judge Doris Ling-Cohan in Hernandez v. Robles, a same-sex marriage case here in New York. We differed with that notion; “the vile prohibitions against interracial marriage,” we wrote of Judge Ling-Cohan’s decision, “had, despite the jackleg preachers, no basis whatsoever in the laws brought down by Moses.”
To suggest that the laws brought down from Sinai, or the laws America derived from them, are “simply about prejudice” is, we wrote, “merely a politely worded, but equally offensive, version of the assertion that adherents to religious laws are bigots.” That is a kind of bigotry in and of itself, and we said at the time that we had little doubt that most Americans reject that libel. This view was given credence by the highest tribunal in the state of New York, the Court of Appeals, when it handed down its decision on same-sex marriage. In memorable ruling written by Judge Robert Smith, it referred the matter to the legislature.
Though the chief judge, Judith Kaye, dissented, the majority of the Court of Appeals said that the plaintiffs in Hernandez v. Robles “have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals.” It drew a sharp distinction between the kind of racism that undergirded the anti-miscegenation laws cast aside in Loving v. Virginia. “Racism has been recognized for centuries—at first by a few people, and later by many more—as a revolting moral evil,” the Court of Appeals noted, adding that America “fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges.”
In contrast, it concluded that “the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”
That did not mean that New York couldn’t legalize same-sex marriage, the Court of Appeals said, only that it would have to do so through legislative action. Which is what happened in New York. It happened, though, after Mayor Bloomberg, at Cooper Union, spoke of the civil rights struggle in a way that implied that religious New Yorkers were bigots. And after Andrew Cuomo, campaigning for governor, did more than imply; he attacked his opponent as a bigot for noting the similarity of his own Catholic teachings and those of the Satmar Chasidim. Those were serious errors amid a war in which religion is under attack from the secular state. Hence will we harken to these themes when the Nine take their seats on the high bench today.