Separate and Not Equal

I'm so outraged by yesterday's ruling in Albany on gay marriage that I don't want to spend too much time writing about it. But it's a sad day for anyone who believes in equal rights when a judge in the state's highest court essentially decided it's OK to discriminate against a class of people because they "have not persuaded us that this long-accepted" discrimination "is a wholly irrational one, based solely on ignorance and prejudice against homosexuals" and that because gay marriage "is a relatively new concept" it's OK to ban it, because slavery and oppression of blacks lasted a long time before it was stopped. HUH? So now the standard for sanctioned discrimination is A.) that it isn't "wholly irrational" (whatever that means; the majority laid out their usual bullshit rhetoric about protecting children and said this was reason enough to limit marriage to being between a man and a woman, despite the fact that having children isn't a requirement for men and women to marry) and B.) the idea hasn't been around a long time? It wasn't that long ago that there was an argument as to whether women have souls; maybe the court would like to revisit that one next.

The court's chief judge, Judith S. Kaye, issued a sharp dissent, warning that future generations would look back at yesterday's decision as "an unfortunate misstep." Here are some of the highlights of her dissenting opinion, which was not only legally perceptive, but also very touching (lifted from today's N.Y. Times):

She said that barring gay marriage was tantamount to barring interracial marriage, as laws formerly did. "The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it."

Judge Kaye, however, argued in her dissent that the historical and cultural understanding of marriage did not justify discrimination.

"Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional," the chief judge said. "As history has well taught us, separate is inherently unequal."

Judge Kaye, who has served on the court for 13 years, said that the understanding of marriage had evolved. Until well into the 19th century, for instance, wives were considered the property of their husbands and married women could not own property or enter into contracts. she noted.

"Only since the mid-20th century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support," she wrote.

She said that while encouraging opposite-sex couples to marry could be good for the welfare of children, denying marriage to same-sex couples did not further that desire in any way.
"The state's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses," Judge Kaye wrote.

Bearing children, she said, is not a prerequisite of marriage, since the elderly and even prison inmates are permitted to marry, and many same-sex couples do have children.

"Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage — purportedly to encourage other people to procreate," she wrote.

Judge Kaye's dissent was a departure from the dry legal language of the main decision. She noted that the plaintiffs represented a cross-section of ordinary New Yorkers, including a police officer, a doctor, a teacher and an artist, who wanted "only to live full lives, raise their children, better their communities and be good neighbors."

Most people, she wrote, look forward to a wedding "as among the most significant events of their lives," and she said it was wrong for gays and lesbians to be denied marriage "because of who they love."