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Gay Marriage Setbacks In New York And Georgia

by @ 1:55 pm on July 6, 2006. Filed under Gay Marriage, Individual Liberty

The strategy of using the Court system to establish the right of homosexuals to marry was dealt a setback in two states today as both New York and Georgia’s highest courts declined to rule that bans against gay marriage are unconstitutional.

First, in New York the Court of Appeals stated that the New York’s marriage law limits marriage to a man and a woman:

In New York, the Court of Appeals said in a 4-2 decision that the state’s marriage law is constitutional and clearly limits marriage to a union between a man and a woman.

Any change in the law would have to come from the state Legislature, Judge Robert Smith said.


The New York decision said lawmakers have a legitimate interest in protecting children by limiting marriage to heterosexual couples and that the law does not deny homosexual couples any “fundamental right” since same-sex marriages are not “deeply rooted in the nation’s history and tradition.”

My preferred position is that the state has no business getting involved in marriage to begin with. If two people, or more for that matter, want to call themselves married, that is their right. The state should not be in the business of defining what is and and is not a marriage, nor should it grant preferntial benefits to one form of marriage over another. Barring that, if the state is going to recognize and grant benefits to married persons, then it should not discriminate in favor of one type of marriage over another.
Effectively, and somewhat suprisingly given that we’re talking about New York, the New York Court has declined to say that the law requires either of these outcome and argues that “for the sake of the children”, the state has the right to limit the definition of marriage as it sees fit.

The substance of the decision can be found here where the Court determines that there are two grounds on which the state can regulate marriage:

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.

The Legislature could find that unstable 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 thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.

In other words, the entire regulatory scheme is really just an extension of the absurd idea that the state exists in loco parentis and has the right to regulate family relationships in the name of “protecting the children.” Anyone who has been a victim of the heavy-handed tactics of state “child-welfare” agencies can attest to the damage that the state does when it acts in this role. Now, that role has been extended to legitimize unequal treatment of people solely based on who they choose to associate with.

The Georgia decision is slightly different:

In Georgia, the state Supreme Court reversed a lower court’s ruling, deciding unanimously that the ban did not violate the state’s single-subject rule for ballot measures. The ban had been approved by 76 percent of voters in 2004.


The lawsuit over the Georgia ban focused on the wording of the ballot measure that voters approved.

Lawyers for the plaintiffs had argued that the ballot language addressed more than one issues and that it was misleading because it asked voters to decide on both same-sex marriage and civil unions, separate issues about which many people had different opinions.

State officials held that Georgians knew what they were voting on when they overwhelmingly approved the ballot measure.

Sadly, they probably did.

More coverage by KipEsquire, who also does a fisking of the NY decision, Andrew Sullivan, The Volokh Conspiracy , The QandO Blog

Previous Posts:

The Fight Begins
Gay Marriage, Polygamy, And Individual Liberty
An Easy Call

5 Responses to “Gay Marriage Setbacks In New York And Georgia”

  1. David says:

    Actually, I know anecdotally of people who voted for the Georgia amendment not realizing that they were also voting to prohibit civil unions. They would change their vote now if they could.

    Probably the proponents of that amendment did the same thing their Virginia counterparts are doing – deliberately misled voters to think the amendment was just about marriage.

  2. Gary says:

    Gov Sonny Perdue said he hoped gay Georgians would not feel marginalized by the decision. (!)

    “I don’t think it demeans gay Georgians in any other way,” Perdue said. “They’re free to work and live their lives; they’re just not free to marry in Georgia.”

    In saying that, Perdue admits that the decision DOES demean gay Georgians! The phrase ‘in any OTHER way’ indicates that clearly.

    How long would he or other Georgia heterosexuals sit back and accept not being able to marry the person they love?

    Also, what ever happened to the multi-clause question. A body of Georgia lawyers not long ago stated that it was indeed illegal. Now we are told that since a majority of Georgians voted that ‘marriage is between on man and one woman’, it doesn’t matter that the ballot was deceptive (showing only the first clause and not the full text). The fact of the matter is they just cannot stomach same-sex marriage, so, by hook or by crook, they just want to see marriage sealed off by a solid rock wall of discrimination againts gays.

    Why has the State of Georgia consistently engaged in legal subterfuges throughout history in order only to propagate bigotry and discrimination? One would think that by now people here would be enlightened enough to be fair & just.

    As David said above, it is very true that voters were given no choice whatsoever to vote for civil unions, domestic partnerships or any other form of legal recognition for gay couples. They were cheated of that right and forced into answering one question alone: Marriage is between one man and one woman: Yea or Nay?

    The State allows an illegal amendment on the ballot. Voters are misled and a majority vote for the amendment. A judge overturns the amendment as illegal. Governor Perdue =threatens= the State with an ultimatum that it had better overturn that decision and reinstate the amendment by a certain date OR ELSE. The court does his will. He then says he hopes we gays don’t mind?!

    What else could we expect in Georgia? But on the same day we get slapped in the face nastily from both sides: GA AND NY!!


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