I'm sure most of you have read the press reports on the recent NY decision holding that a bar on same-sex marriage violates the due process and equal protection clauses of the NY constitution. If not, see the
NYT,
Fox,
Washington Post and
Gay City News articles for a range of reportorial coverage.
But what you really should read is
the decision itself (courtesy of
Lambda Legal, which represented the plaintiffs in the case). It is fairly long (62 pages), but it is double-spaced and has lots of long footnotes you can skip. It won't take more than 20 minutes to read, although it may give you hours worth of stuff to think about. But, for those who just can't bear the long form, here's the gist, in the court's own words (citations omitted):
It was only less than 40 years ago that the United States Supreme Court held that anti-miscegenation statutes, adopted to prevent marriages between persons solely on the basis of racial classification, violate the Constitution because they infringed on the freedom to marry a person of one's choice. Similarly, this Court must so hold in the context of same-sex marriages. Marriage is, without a doubt, the cornerstone of the family and our civilization. . . . . As marriage constitutes the most intimate of relationships (Griswold v. Connecticut, 381 US at 486), the decision of whom and when to marry is highly personal, involving complex reasons which vary from individual to individual. Thus, the decision to marry should rest primarily in the hands of the individual, with little government interference. . . . .
* * * *
Rote reliance on historical exclusion as a justification . . . would have served to justify slavery, anti-miscegenation laws and segregation. There has been a steady evolution of the institution of marriage throughout history which belies the concept of a static traditional definition. Marriage, as it is understood today, is both a partnership of two loving equals who choose to commit themselves to each other and a State institution designed to promote stability for the couple and their children. The relationships of plaintiffs fit within this definition of marriage. Similar to opposite-sex couples, same-sex couples are entitled to the same fundamental right to follow their hearts and publicly commit to a lifetime partnership with the person of their choosing. The recognition that this fundamental right applies equally to same-sex couples cannot legitimately be said to harm anyone.
While, undeniably, religious institutions have a historical and spiritual interest in marriage and the recognition of those married under their tenets, ultimately it is the government's choice as to which relationships to recognize as valid civil marriages and whether, and the degree to which, legal protections, burdens and privileges should be conferred on that civil institution. In declaring that "freedom means freedom for everyone" to enter "into any kind of relationship they want to", Vice President Cheney acknowledged that the issue is what kind of government recognition should be "granted...to particular relationships."
* * * *
The Court recognizes that this decision may cause pain to some in that their religious convictions forbid the recognition of same-sex marriage. However, the Court emphasizes that government recognition that same-sex couples may be civilly married does not impact on those married under the tenets of their individual faith, and does not require that religious institutions change their tenets, nor their definition of marriage under their faith. Moreover, such religious considerations cannot legally be the basis upon which to curtail the constitutional rights of plaintiffs. Furthermore, that prejudice against gay people may still prevail elsewhere cannot be a legitimate justification for maintaining it in the marriage laws of this State. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." . . .
Two things impress me about the decision. First, it is remarkably well written and downright scholarly, especially for a trial court decision. Second, and more important, the decision demonstrates how thoroughly off-the-mark are claims that decisions like this one are the result of "judicial activism." In fact, what the case shows is how
small a step the decision is from settled principles with which few would disagree.
First, there is the basic analytical framework that courts use in addressing claims that government action infringes personal liberty. Few would disagree, in principle at least, that resolving such issues requires a balancing of the interests of the public on the one hand against the interests of the individual on the other. Where the interests of the individual are substantial and the interests of the public minimal, the interests of the individual should prevail. Where the opposite is true, the result should be the opposite as well.
Second, there is the hierarchy of individual rights. Some individual freedoms -- e.g. the freedom" go as fast as one wants in his car -- are insubstanial, and, as a result the state's interests in public safety can easily be shown to justify significant restrictions on that "freedom". On the other hand, some individual rights -- e.g. the freedom to travel -- are considered to be "fundamental" even though they are not specifically mentioned in the Constitution. Government infringements on these types of freedoms must be supported by a "compelling" state interest. Again, few would argue that some individual rights are more important that others and that the nature of the interest that the state must show to justify restrictions on individual rights gets ever heavier as we move up the individual rights hierarchy.
Third, the right to form a family with the person of one's choosing is one of those "fundamental" rights. Again, as a general proposition, few would argue with this. For instance, no one argue the state should be allowed to bar a blonde from marrying a redhead. And, today at least, no one worthy of respect would argue that the state should be allowed to bar a Christian from marrying a Jew, or barring a white from marrying a black. The consensus on these issues is a testament to the fundamentality of the right to marry whoever you want.
So, now we get down to it: under settled principles with which few, if any, would disagree, the right to choose the person with whom you are going to form a family is fundamental, and the state must, therefore, be able to demonstrate that any restrictions it places on that right are necessary to serve some compelling state interest.
It takes but a moment to see that those trying to defend a ban on same-sex marriage cannot do this. The defendents in the New York case tried, of course, as litigants must, but the court had little trouble demolishing the two interests that the State did advance there.
First, the State argued that because marriage was such an important institution, the State had a compelling interest in limiting marriage to the traditional understanding of that term: one man and one woman. The court noted, of course, that if defense of tradition were a sufficient state interest, then the concept of coveture (the notion, still prevalent in the 19th century, that a woman ceases to exist as a legal entity once she marries) would still be the law of the land, as would state bans on inter-racial marriage. To justify a significant restriction on the freedom of an individual to marry whom he or she chooses, the state had to be able to point to some harm to the public that would flow removing that restriction. This, they could not do:
While eloquently praising the indisputably central role that marriage plays in human life, neither defendant, nor amici indicate how that role would be diminished by allowing same-sex couples to marry, nor how the marriages of opposite-sex couples will be adversely affected by allowing same-sex couples to marry. As one court concluded in recently recognizing a right to marriage for same-sex couples under the Washington constitution: Some declaim that the institutions of marriage and family are weak these days and, in fact, stand threatened. Any trial court judge who regularly hears divorce, child abuse and domestic violence cases deeply shares this concern. It is not difficult, however, to identify both the causes of the present situation and the primary future threat. They come from inside the institution, not outside of it. Not to be too harsh, but they are a shortage of commitment and an excess of selfishness. Before the Court stand eight couples who credibly represent that they are
ready and willing to make the right kind of commitment to partner and family for the right kinds of reasons. All they ask is for the state to make them able...There is no worthwhile institution that they would dishonor, much less destroy.
Excluding same-sex couples from marrying may,in fact, undermine the State’s interest in providing optimal environments for child-rearing, in that children of those families are then not afforded the same legal, financial and health benefits that
children of married couples receive.
* * * *
Permitting plaintiffs to marry would confer innumerable tangible and intangible benefits for them and their children while causing harm to no one. Defendant has articulated no legitimate State purpose that is rationally served by a bar to same-sex marriage, let alone a compelling State interest in such a bar.
The second state interest advanced by the State was an interest in assuring that New York law not be at odds with federal law and the law of most other states. As the court noted though this argument is at bottom a claim that "the State may excuse its own deprivation of plaintiffs' constitutional rights on the basis of discrimination countenanced by other States and the Federal government. But this simply cannot be a legitimate ground for denying a liberty interest as important as marriage. Indeed, if the California Supreme Court had been so constrained, it would never have struck down the bar on interracial marriage."
Given that the State had not shown any significant State interest that would be harmed by allowing gay marriage, the court held that a ban on such marriages was unconstitutional.
In sum, as a piece of judicial analysis, the NY gay marriage case -- like the similar Massachusetts case before it -- involved no radical departure from long-established and generally accepted norms for judicial decison-making. Yet, at the same time, one can hardly imagine an outcome that is more controversial. How do we explain that?
The reason, I think, is that there is actually a third set of "interests" at stake in the gay marriage cases. Indeed, though the State did not raise these interests, they are the interests that actually lie at the heart of the issue: the state's interest in seeing to it that its laws reflect the prevailing consensus as to what is "moral." The true impetus for barring gay marriage is that most Americans consider homosexuality to be immoral, even perverted, and many consider it to be, literally, damnable. Surely, the State has an interest in barring such conduct.
The court rejected, as it must, the ability of the state to enact laws on an explicitly religious basis. But the claim that the state has the right to base laws on prevailing senses of morality is far harder to reject out of hand. Of course, majoritarian morality has not in fact been seen by the courts as an impediment to striking down laws. If they had, cases striking down bans on the sale of contraceptives, interracial marriage, possession of pornography, sex outside of marriage, and consensual homosexual sodomy, to say nothing of abortion would never have been possible. But, the fact that courts
have refused to make majoritarion morality a permissible basis for limiting personal freedom begs the question of whether that is what they
should be doing. Indeed, it is exactly this issue that lies at the heart of the debate over judicial activism.
Many court decisions are controversial at the time they are rendered. But the durability of that controvery is directly proprotional, not to the extent of the judicial "leap" necessary to get there, but rather to the extent that the activity at issue is considered by most people to be immoral. For instance, it is hard to imagine a more "activist" decision than
Brown v. Board of Education. Yet,
Brown is now alomst universally accepted -- even lauded -- as a necessary and entirely approproate exercise of judicial power. Conversely, as the NY gay marriage case illustrates, it requires no radical departure from widely accpeted jurisprudence to reach the conclusion that a ban on gay marriage is unconstitutional. Yet, the controversy generated by these cases seems likely to be a heated and as durable as taht surrounding the decision in
Roe v. Wade. In short, it is not judicial activism per se that makes some judicial decisions wildly controversial; it is the extent to which they cross some line that the majority of the people believes separates morality from immorality and acceptability from repugnance.
I do not reject majoritarian morality as a legitimate basis for law-making. In fact, our shared sense of what is "right" and "wrong" is primary basis for most laws. Arguments regarding the "interests" served by such laws are generally little more than post-hoc rationalizations for a result that actually springs from normative values so deeply ingrained that they amount to instincts. Yet, neither do I believe that moral consensus -- even if nearly universal -- is
alone sufficient. If it were, the result would be a tryanny of the majority.
To me, the very essence of freedom is the right to act as one wishes so long as those actions do not impinge unreasonably on the ability of others to act as they wish. If I act in a manner you consider immoral, that alone does not impinge on you freedom of action. You can still live by your own moral code. But, where you impose restrictions on my actions for no reason other than you think they are immoral, you impinge on my freedom of action without materially advancing your own. That should not be allowed.
Where all of this leads me is this: Personal freedom of action should trump majoritarian morality in every case where there is nothing at stake except morality. More specifically, if the state cannot identify a significant public interest (other than its interest in morality) that would be harmed by allowing people to act in a particular manner, then courts should require the state to permit such actions, even though most of the State's citizens may consider such actions to be morally repugnant. It is something akin to the "no harm, no foul" rule. To me, this is the very essence of what is meant by freedom. Since same-sex marriage clearly falls on the "no harm" side of this divide, the State has no business banning it.
