NEW YORK SSM DECISION: Justin Katz

...Asserting that there is another "aspect of the fundamental right to marry" that exists independently of the previous--"the right to choose whom one marries" (restated on the next page as "the right to choose one's life partner"--Ling-Cohan works her way around to the conclusion, on page 43, that:

... in the present case, the "liberty at stake" that is fundamental is the freedom to choose one's spouse. Thus, for the State to deny that freedom to an individual who wishes to marry a person of the same sex is to deny that individual the fundamental right to marry.

Homosexuals are not barred from marriage, in other words, because they can enter into the relationships that the definition of "marriage" covers. But because the definition of "marriage" does not include the relationships that they would prefer, they are barred from marriage, and the definition must be changed.

By the time she announces her judgment, Ling-Cohan has found a right to same-sex marriage on just about every possible grounds--due process and equal protection. She has continued the practice of turning the inherent circularity of a definition (A is A because it is A) into a license to rewrite definitions. She has claimed freedom to interpret New York law as distinct from the laws of the federal government and other states when it suits her, and she has relied on other governments' laws when that suits her. On page 51, she notes "an evolving public policy," evinced purely in the "recent decisions" of other New York judges, and as described above, she has literally rewritten the law, under the judicial euphemism of "construed," in order to accord with her own preferred policy. ...

I daresay that a Federal Marriage Amendment is the least of the measures that must be taken. But the reality that the measure must be taken is exemplified in the possibility that some future judge, cutting and pasting her way to another progressive ruling, will find this paragraph on page 45 of Ling-Cohan's effort too apropos not to find precedential:

Defendant's historical argument is no less conclusory than amici's tautological argument that same-sex marriage is impossible, because, as a matter of definition, "marriage" means, and has always meant, the legal union of a man and a woman. Further, the premise of that argument is factually wrong; polygamy has been practiced in various places and at various times, for example, in the Territory of Utah.

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posted by Eve at 10:18 PM | link

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