McGuiness, joined in a concurring opinion by Justice Joanne C. Parrilli, found that the right of same-sex couples to marry was not a "fundamental right" for purposes of state constitutional analysis, and that sexual orientation was not a "suspect classification" in weighing the discriminatory effect of maintaining the current law. Accordingly, that law deserves a strong degree of deference and the state need show merely a rational basis in justifying it.
Compare that quote with what the Supreme Court has said:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888).
At the heart of the argument between majority and dissent is the understanding of what is at stake in the case. The majority says that the plaintiffs are seeking judicial recognition of a new constitutional right of same-sex marriage. In sharp contrast, the dissent insists that they are just asking for recognition that they are entitled to be included within the fundamental right to marry already long recognized by the courts.
*tries to write an introductory sentence that doesn't involve swearing*
*fails*
What, a "new" constitutional right to marry someone of one's choice? I'm sure the courts have never declared something like that exists ever before! Honestly, by denying same-sex couples the opportunity to marry is not an abridgment of a fundamental right, they're saying only that they do not believe gay couples have the same rights as straight ones. Nothing more. Furthermore, even if this involved a "new" right, the rationale behind their denying such a right is simply absurd:
"Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage," wrote McGuiness. "Judges are not free to rewrite statutes to say what they would like, or what they believe to be better social policy."
Except that courts "create new rights" all the time. The "right" to learn foreign languages, the "right" to marital privacy, the "right" to use contraception, the "right" to send one's child to a private school, the "right" to pester people at home with fliers, and so many others.
McGuiness insisted this was not a situation of "separate but equal" since sexual orientation is not a suspect classification as is race. Kline's telling response was that sexual orientation discrimination should be found to be constitutionally suspect.
Ignoring whether or not sexual orientation should be a suspect class--I think it should be, but I don't believe any court has ruled such, so the point is moot--this logic is horrible. It's okay to treat people unequally as long as they're not a "suspect class"? Could you create schools only for left-handed people, then? Or force blondes to drink from different water fountains than red-heads?
And finally, the article's conclusion:
Ultimately, the majority’s reasoning collapses on itself due to internal inconsistency. At one point, it acknowledges that domestic partnership is not equal to marriage, at the next it insists that there is no discrimination because the law merely reflects a desire to preserve historical institutions, while at another point it concedes that the historical institution of marriage has changed substantially over time.
Which about sums up everything. "We're not treating you equally, but there's no discrimination. And we want to preserve a 'tradition' that's only fifty or so years old."
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