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 Topic: New York Court of Appeal Ruling

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Claude  



Joined: 05 Mar 2003
Posts: 26
Interests: glbtq culture
Physical Location: New Orleans

Posted: 6 Jul 2006, 12:03 pm    Post subject: New York Court of Appeal Ruling Reply with quote

The New York State Court of Appeal, the state's highest court, today ruled that New York's constitution does not compel the recognition of same-sex marriages. The 4-2 decision is especially disappointing because the majority opinion is so ill-reasoned and circular in its arguments. The four judges seem to have simply wanted to throw the question into the laps of the legislature rather than address issues of justice and equity. Indeed, the striking thing about their ruling is their utter lack of interest in justice and the real life consequences of their decision.

In contrast, the court's chief judge, Judith S. Kaye, wrote a brilliant dissent, challenging the majority on every point.

If glbtq people had banked on courts, even in liberal states like New York, to provide justice and equity for their families, this ruling is--sadly--a wake-up call.
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Linda  



Joined: 12 May 2003
Posts: 66
Interests: Pets, politics, sports, gardening, needlework, mystery novels, cooking
Physical Location: Dearborn, MI

Posted: 7 Jul 2006, 12:40 pm    Post subject: Where to read the opinion Reply with quote

People interested in reading the opinion can find it on the Lambda Legal web site. Go to www.lambdalegal.org/cgi-bin/iowa/cases/record?record=204. Then scroll down until you get to the "Decisions" section and choose the document dated 07/06/2006. You can download it in PDF format. (I am not sure why there is a reference to Iowa in the URL. This is indeed the New York case.)

The opinion is also available through the research data-base Lexis/Nexis. (If you are unfamiliar with it, ask about it at your local library.) In the "Get A Case" section, choose the "Party Name" option, and type in "Hernandez v. Robles." Strangely enough, the opinion is not the first document listed. Scroll down until you see "Hernandez V. Robles" followed by "No. 86." The case is identified by LEXIS number 1836. This can be printed out in HTML format.

Kudos to Chief Judge Judith S. Kaye for her enlightened dissent, in which Judge Carmen Beauchamp Ciparick concurred.
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Linda
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Queenmand  
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Posted: 8 Jul 2006, 1:20 am    Post subject: Reply with quote

In Canada, we face the opposite situation. The Supreme Court of Canada has ruled same sex marriage to be a right but the minority Conservative government is going to have a vote on it in the fall. It's a free vote and it will be close.
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philipcha  



Joined: 24 Jan 2008
Posts: 1
Interests: Gay rights, constitutional law, writing, movies, reading, music, politics...
Physical Location: Glasgow, Scotland

Posted: 24 Jan 2008, 1:26 am    Post subject: Re: New York Court of Appeal Ruling Reply with quote

Claude wrote:
The New York State Court of Appeal, the state's highest court, today ruled that New York's constitution does not compel the recognition of same-sex marriages. The 4-2 decision is especially disappointing because the majority opinion is so ill-reasoned and circular in its arguments. The four judges seem to have simply wanted to throw the question into the laps of the legislature rather than address issues of justice and equity. Indeed, the striking thing about their ruling is their utter lack of interest in justice and the real life consequences of their decision.

In contrast, the court's chief judge, Judith S. Kaye, wrote a brilliant dissent, challenging the majority on every point.



*******
Response:
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I read both the majority decision and the dissent by Chief Judge Kaye. To state that the majority opinion was embarrassing is to understate the issue. The majority opinion was comparable to the trial court opinion in the case of Loving v. Virgina, 388 U.S. 1 (1967) (the trial judge stated that miscegenation statutes were not unconstitutional, because they applied to both black people and white people alike). The majority employed reasoning that was tautological, circular, and conclusory. This decision did not contain analysis -- at the core of the decision was merely a proposition (because both gay and straight people are forbidden from marrying members of the same sex, there is no equal protection violation).

The dissent was truly brilliant. Judge Kaye shredded the majority, unmasking the majority opinion for the sham that it was, attacking each and every point made by the majority in a dissent so eloquent and so well reasoned that I am certain that portions of this dissent will be cited by other courts in other parts of the nation as this issue continues to advance through the courts. I wrote to Judge Kaye to thank her for her dissent, and was surprised to receive a note from her thanking me for writing to her and thanking me for congratulating her. These people are human beings -- they are not automata, and letters do make a difference, notwithstanding the fact that judges are supposed to decide cases before them without regard to personal pride and the passions aroused by those cases. I urge people to write to Judge Kaye and to thank her for her efforts -- she cited both Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003) on several occasions, noting that "[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests." (from Lawrence, supra). She also made it clear that the existence of anti-discrimination statutes is not, as the majority suggested, proof of the political power of those minorities protected by such statutes -- these statutes mark the fact of discrimination, and attempts to remedy such discrimination should not be cofused with political power. In short, her dissent was biting, on point, and profoundly disturbing -- disturbing because it revealed the moral and legal incompetence of the highest state court in the State of New York (simply named the Court of Appeals). Ths Court of Appeals has, historically, been the source of numerous well-reasoned and highly regarded opinions on a range of issues. This court became the first court in the nation to recognize that a husband can rape his wife, and that a marriage license is not a license to force a woman to have intercourse against her will. This Court also handed down a string of cases protecting the rights of women, and was also one of the first courts in the nation to strike down a state sodomy statute (the Court struck down the state sodomy staute in 1980, in People v. Onofre, interpreting the US Constitution and holding that this statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment -- this decision survived the US Supreme Court's self-inflicted wound in Bowers v. Hardwick, 478 U.S. 186 (1986), because although Bowers struck down the due process analysis, Bowers did not address the equal protection issue).

Please consider writing to Judge Kaye to thank her for her dissent. Her address is easy to find -- simply enter "Court of Appeals" + New York in the search engine, and you will soon find the address of the Court...

PHILIP
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Philip Chandler
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