Summer 2006: Disappointment

New York

In July, New York's highest court rules 4-to-2 that same-sex couples have no constitutional claim whatever to rights granted to opposite-sex couples. Its ruling in Hernandez v. Robles is roundly criticized in legal circles for its absurd logic, disregard of legal precedent and existing state law and practice, and its seemingly blatant homophobia.

It is the first state high court since Minnesota’s Baker ruling in 1971 to deny all rights for same-sex couples based on the merits of their case. (The Hawaii and Alaska rulings were based on the courts’ hands being tied by constitutional amendments.) In contrast to Vermont, the New York court rules that same-sex couples are not even entitled to civil unions.

In Hernandez (which included the consolidated Samuels, Kane, and Seymour cases), the court rejects the constitutional claims of equal protection, due process, sex discrimination, and invasion of privacy. On the issues of equal protection and privacy, the court acknowledges that the requirement for natural procreation is not applied to opposite-sex couples but writes, “an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea” because it would be an invasion of privacy. But it expresses no such concern for the privacy rights of same-sex couples, rejecting the fundamental privacy rights of gay people outlined in Lawrence.

As for due process, the court states that, while marriage is indeed a fundamental right for opposite-sex couples, it is not for same-sex couples because it has not traditionally been so. And about sex discrimination, it states that if gay people want to marry, they have every option to marry someone of the opposite sex and, since the sexes are equal in that regard, there’s no discrimination.

It disregards the laws, practices, and experience of the state of New York that prohibit discrimination on the basis of sexual orientation, including in granting adoptions. While the state has long granted same-sex couples the right to adopt and made no claim that such couples were anything but suitable parents, the court rules that “intuition” says that opposite-sex couples make better parents.

In insulting slaps to both straight and gay people, couples, and families (pretty much everybody, really), the New York court reduces marriage to a matter of lust. Ignoring the needs of children raised by same-sex couples, it says that straights need the special right to marry because they’re so promiscuous that they’re likely to accidently have illegitimate children:

[S]uch relationships are all too often casual or temporary. …[A]n important function of marriage is to create more stability and permanence in the relationships that cause children to be born. [It’s ok] to offer an inducement – in the form of marriage and its attendant benefits – to opposite-sex couples…

[U]nstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples…

And finally, in a very anti-Lawrence manner of sticking its nose into the bedrooms of gay people, it says,

A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant…

A quick result of the high court’s decision is a ruling in a lower court in Funderburke v. Uniondale Union Free School District. The lower court rules that, because New York doesn’t recognize marriages of same-sex couples, Duke Funderburke (age 73) cannot obtain spousal health benefits from his employer – a school district – for his partner Bradley Davis (age 68), even though they’ve been partnered 43 years and were married in Canada. (However, this ruling is doomed to be overturned in 2008 as bad law; see 2008.)

Washington State

The same month, Washington’s supreme court also rules (5-to-4) that same-sex couples have no constitutional claim whatever to rights granted to opposite-sex couples.

In the combined Andersen and Castle cases, the court rules that the state constitution’s “privileges and immunities” clause (guaranteeing equality to the state’s citizens) actually guarantees protection only to the majority – yes, that’s right, the majority. Since marriage is available to the majority and isn’t a special right of a minority, there’s no equal protection violation.

The court also rules that there’s no violation of the state’s Equal Rights Amendment (guaranteeing protection on the basis of gender) because both sexes are prevented from marrying their own sex. And, since (supposedly) the purpose of marriage is procreation, it is rational to deprive marriage to couples who can’t have children naturally (unless, apparently, they’re opposite-sex couples, in which case they get a pass from this requirement).

It overturns the two lower court rulings (Andersen and Castle) that held that same-sex couples had the right to marry. It instead reaffirms the ruling reached by the intermediate court in 1974’s Singer v. Hara.

Connecticut

In Kerrigan & Mock v. DPH, a lower court judge rules against same-sex couples’ right to marry for some rather bizarre reasons. First, they already have access to civil unions, so they don’t need marriage. Incredibly, Judge Pittman rules that it’s just a matter of “nomenclature” as to whether it’s called marriage or civil union. (One supposes that neither she nor all other opposite-sex couples would mind, therefore, if their marriages were converted to civil unions. After all, it’s just a matter of nomenclature.)

She also doesn’t put a lot of value in marriage, dismissing it and its importance to the couples who appeared before her in court – as well as dismissing it for all the happily-married opposite-sex couples. In an astounding twist on the “tradition” argument, she uses tradition against same-sex couples by saying that their interest in marriage represents merely “nostalgia for past traditions”. Same-sex couples don’t need to marry, she writes, because, let’s face it, marriage doesn’t mean much:

Being married no longer carries the cultural or social weight, for good or ill, that it did in decades past.

Hearing that from a straight person, who has the luxury of taking marriage for granted, infuriates same-sex couples for whom marriage carries tremendous cultural and social weight.

But let’s assume she were right, that civil unions were equal to marriage. There’s still that pesky little landmark US Supreme Court case, 1954’s Brown v. Board of Education, that says separate-but-equal is unconstitutional. Oh well – that’s undoubtedly just a matter of nomenclature too.

Nebraska/federal

And at the federal level, a panel of the 8th US Circuit Court of Appeals overturns the previously-favorable District Court decision in Citizens For Equal Protection v. Bruning. The District Court had ruled that Nebraska’s constitutional amendment was overly broad in denying any rights to same-sex couples, whether in marriage, civil union, or “other similar same-sex relationship”.

Holding instead that “steering procreation into marriage” justifiably burdens same-sex couples’ right to marry, and availing itself of a “responsible procreation” theory, the court rules that it is rational to deprive same-sex couples – even those raising children – of all rights associated with marriage.

But on the positive side, both the US Senate and House vote down a proposed amendment to the US Constitution which would have barred same-sex couples from marrying.

Alabama

Keeping with the theme of constitutional amendments, the citizens of Alabama vote to amend their state constitution to keep same-sex couples from marrying.

Timeline key: progress (green), no progress (red), pending court cases (purple),
events that are neutral, not directly related, or with both positive and negative effects (black)