Friday, February 17, 2006

Damn those activist judges!

Well, shit.

Reading through this article, though, I notice that the decision was based on completely flouting the precedent set by Loving v. Virginia

The gay couples had claimed that the state's marriage law violated their constitutional rights to equal protection, privacy and due process.

The court disagreed in a 5-0 ruling and sided with state lawyers, who earlier had argued the state law did not allow for gay marriage.

"We find merit in the (state's) assertion that this case is not simply about the right to marry the person of one's choice, but represents a significant expansion into new territory which is, in reality, a redefinition of marriage," Justice John Lahtinen wrote for the Albany court.

The justices said any rewrite of the definition of marriage should come from the Legislature.

"While such a change of a basic element of the institution may eventually find favor with the Legislature, we are not persuaded that the Due Process Clause requires a judicial redefinition of marriage," Lahtinen wrote.

This is idiotic. The common definition of marriage is irrelevant and the legal definition of marriage is still subject to the constitution. If it's discriminatory, and it most certainly is, the court should rule so, as the Loving court said:

While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U.S. 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska, 262 U.S. 390 (1923), and Skinner v. Oklahoma, 316 U.S. 535 (1942).

The powers of the legislature to regulate marriage are not unlimited when they come in direct conflict with the constitution.

However, the court decided that it wasn't biased:

The court also rejected claims that the marriage law exhibited gender bias; the court said the law applied equally to men and women.

You could only claim this if you ignore everything the Supreme Court said to the contrary nearly 40 years ago:

[T]he State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element [388 U.S. 1, 8] as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race.


[W]e reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations.... The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, [388 U.S. 1, 9] Inc. v. Bowers, 358 U.S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.


The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated "Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court." McLaughlin v. Florida, supra, at 188. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.

I admit that all these quotes deal specifically with race and not sex discrimination. However, the justices were referring to the Equal Protection Clause of the Fourteenth Amendment, which reads only:

No State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws.

Nothing there says that this applies only to discrimination against race; indeed, sex/gender are suspect classes just as are race. Sex is subject only to intermediate scrutiny instead of strict scrutiny, but that hardly matters in this case. The court didn't bother to decide whether there was any reason for this discrimination--they simply decided, contrary to any reason--that there wasn't any.

Gah. Pisses me off.

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