I walk a crooked path - don't step on my feet.: July 2006

On Thursday, July 6, the New York Court of Appeals handed down its decision in the same-sex marriage appeal. "Horrorific" doesn't begin to capture it. It was wrongly decided, poorly reasoned, blatantly offensive, and massively injurious to thousands of same-sex couples as well as to the children of such unions.

The Dishonorable Robert Smith wrote the majority opinion. He bears a striking resemblance to Riff Raff from the Rocky Horror Picture Show, don't you think?

Utterly appropriate, seeing as he's clearly living in a "Time Warp."

Anywhoosie, Smith wrote that barring same-sex couples from marrying does not violate the due process and equal protection provisions of the NYS Constitution. The majority reached this conclusion based on a finding that there are at least two bases upon which it may be rational to restrict marriage in this way: (1) promoting stability in opposite-sex relationships may be more important than in same-sex relationships, essentially because there is more risk of children being born as the result of "accident or impulse" in opposite-sex relationships, and (2) it might be better for children to grow up with a mother and a father.

There are so many flaws in the court's reasoning, it's hard to even know where to start. Even if the two objectives listed above were valid -- which they are not -- they would not be frustrated by permitting same-sex couples to marry. The state might further these goals by encouraging opposite-sex couples to marry, but not by denying gays the right to marry. The second premise is also clearly inconsistent with a well-established body of adoption law in New York State, as well as with all reputable research on the issue. (Rather than cite to any authority on the issue, the court relies on its own "intuition and experience" and "common sense," a.k.a. prejudice and homophobia.)

The majority reaches the untenable conclusion that the planned-for children of same-sex couples are somehow less deserving of the legal protections naturally flowing from the marriage of their parents than are the unintended children of opposite-sex couples. Is there some logic or legitimate public policy interest in there somewhere???

The majority argues that opposite-sex couples who have children are more likely to have an unstable relationship than are same-sex couples who have children, and that's why gays are not permitted to marry in this state. It seems our relationships are already too stable, and marriage is just a handicap given to all those shifty straights just to even the playing field a bit. Who knew???

I could go on and on, but it's hardly worth dignifying this bigoted tripe with a reasoned response. I would like to note, however, that Chief Judge Judith Kaye rocks. In her well-founded and beautifully written dissent, she properly defines the fundamental right to marry as as the "right to marry the person of one's choice," and that the deprivation of such a right should be subject to strict scrutiny. (The majority wrongly defined the 'right to marry' as the 'right to marry someone of the opposite sex' and employed the lower "rational basis" standard.)

Judge Kaye relies on Lawrence v. Texas (the 2003 U.S. Supreme Court decision overturning sodomy laws) and Loving v. Virginia (the 1967 U.S. Supreme Court decision overturning anti-miscegenation laws) in reaching the proper conclusion that the majority's decision is based on prejudice and circular logic. As Kaye notes, "a history of tradition of discrimination--no matter how entrenched--does not make the discrimination constitutional." She closes with the prediction "that future generations will look back on today's decision as an unfortunate misstep." I have no doubt time will prove her right.

Given our collective level of disappointment and fury over the decision, Erin, Christine and I made a pilgrimage across the Great South Bay to take part in the protest march and rally organized by the Empire State Pride Agenda in Bay Shore, Long Island. There was a good turnout and it really did feel good to do something. Of course, my next step will be to move to Spain or Canada or some other jurisdiction that doesn't treat me like a second-class citizen.

Could anyone in their wildest dreams imagine President Bush making a speech like that made by President Zapatero of Spain on the occasion of that country's legalization of same-sex marriage??? I think not. Here are some excerpts from Pres. Zapatero's speech:

We are not legislating, honorable members, for people far away and not known by us. We are enlarging the opportunity for happiness to our neighbors, our co-workers, our friends and our families. At the same time we are making a more decent society, because a decent society is one that does not humiliate its members.

Today, the Spanish society answers to a group of people who, during many years have, been humiliated, whose rights have been ignored, whose dignity has been offended, their identity denied, and their liberty oppressed. Today the Spanish society grants them the respect they deserve, recognizes their rights, restores their dignity, affirms their identity, and restores their liberty.

It is true that they are only a minority, but their triumph is everyone's triumph. It is also the triumph of those who oppose this law, even though they do not know this yet, because it is the triumph of Liberty. Their victory makes all of us (even those who oppose the law) better people, it makes our society better. Honorable members, there is no damage to marriage or to the concept of family in allowing two people of the same sex to get married. To the contrary, what happens is this class of Spanish citizens get the potential to organize their lives with the rights and privileges of marriage and family. There is no danger to the institution of marriage, but precisely the opposite: this law enhances and respects marriage.

Today, conscious that some people and institutions are in a profound disagreement with this change in our civil law, I wish to

express that, like other reforms to the marriage code that preceded this one, this law will generate no evil, that its only consequence will be the avoiding of senseless suffering of decent human beings. A society that avoids senseless suffering of decent human beings is a better society.

With the approval of this Bill, our country takes another step in the path of liberty and tolerance that was begun by the democratic change of government. Our children will look at us incredulously if we tell them that many years ago, our mothers had fewer rights than our fathers, or if we tell them that people had to stay married against their will even though they were unable to share their lives. Today we can offer them a beautiful lesson: every right gained, each access to liberty has been the result of the struggle and sacrifice of many people that deserve our recognition and praise.

Some pictures of the day: