A Wise Decision

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The New York Sun

The decision of the state’s highest court on the gay marriage question — letting the matter rest with the legislature — is, in our view, a wise decision evincing a modesty on the high court that sets an example that will shine beyond New York. In a 4-2 decision, the judges ruled that the state’s constitution is silent on marriage and that, in effect, reasonable people can disagree on the issue. Count that as two victories wrapped up in one. Not only has the court declined to settle the issue itself, but the majority has written an opinion that sets just the right tone for any legislative debate that might follow.

The court, in an opinion penned by Judge Robert Smith, rebuffed the suggestion that New York’s marriage statute leaves the door open to gay marriage as written. The judges found that although the law may not explicitly state that marriage in New York is confined to one man and one woman, legislators wouldn’t have contemplated any alternative when they passed the law in 1909. Plenty of other clues, such as repeated references to “the bride” and “the groom,” make clear what definition of marriage the legislature intended.

The judges also rebuffed the most serious claim of the plaintiffs, that marriage is a “right” so fundamental as to be sacrosanct under the equal protection and due process clauses in the state’s constitution, though that claim, radical as it is, was embraced by the chief judge, Judith Kaye. The court’s reasoning is as important as the final decision. When confronted with the claim that a law violates one of the provisions — the federal Constitution and many states have similar clauses — judges settled the issue by deciding whether the “right”in question is so fundamental it’s “deeply rooted in this Nation’s history and tradition.”

If the right is deemed fundamental, the courts then decide whether the legislature had a good reason for abridging the right nonetheless. The plaintiffs struck out on both scores. The majority lit on a basic problem that has dogged this claim. Although marriage in an abstract sense has always been considered a fundamental right in America, the right to marry whomever one pleases has not been. Governments and societies over the centuries have restricted marriage in many ways, prohibiting incestuous unions or polygamy, for example, or requiring blood tests or setting minimum age requirements.

Moreover, the court found that even if marriage is a “right,” at least in some sense, the legislature has a rational basis for deciding to limit the institution to monogamous heterosexual couples. The justices laid out many reasons, most related to ensuring children a stable, two-parent family. They didn’t say they agreed with that rationale (nor, on this point, do we, as we’ve known a number of same sex couples who have raised wonderful youngsters). “We do not imply that there are no persuasive arguments on the other side — and we know, of course, that there are very powerful emotions on both sides of the question,” Judge Smith wrote. What the court did say is that reasonable people can argue against gay marriage without being bigots.

Which is an important point, because some proponents of gay marriage have been too quick to suggest that their opponents are bigots. We have heard this libel directed toward great Torah sages, devout Catholics, and faithful Muslims who oppose same-sex marriage. Such rhetoric betrays its own breed of anti-religious bigotry and does a disservice to the many New Yorkers who have wrestled with this issue and come down against gay marriage. By rejecting the notion that opponents of same-sex unions must be bigots, the judges have, wittingly we suspect, set a template for how such a debate should go forward. The key element is their recognition that reasonable people can disagree.

Marriage could shape up as an issue in the 2006 campaign. The Republican gubernatorial candidate, John Faso, issued a statement declaring his opposition to gay marriage. Democrat Thomas Suozzi endorsed a domestic partnership law as an alternative to gay marriage. Eliot Spitzer, whose Office of the Attorney General argued against gay marriage in court, told Ben Smith of the Daily News that he supports gay marriage. The political sphere, not the courtroom, is where this issue belongs. The decision of the New York Court of Appeals contrasts sharply with that of the Supreme Court of Massachusetts — which refused to trust the state’s own legislature — and has set an example for the rest of the country of which all New Yorkers can be proud.

The New York Sun

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