15 July 2006

Gay marriage defeated in New York court

In the recent case of Hernandez v Robles, the New York Court of Appeals ruled that the law allowing only opposite-sex couples to marry was not unconstitutional. What were the grounds for this decision? The key arguments explained. Full essay.


Anonymous said...

George Pataki is a Republican, and a Roman Catholic, Pataki has been mentioned as a contender of the 2008 Presidential Elections. It was Pataki that elected Judge George Smith to the NY Court of Appeals, who on July 6, 2006, concluded that same-sex marriage in New York was not a Constitutional issue, and the final say was to be left to the US legislature. It is all scoring political points!

teck soon said...

The fact that gay marriage is being actively pursued, challenged, debated, and tried in American courts illustrates just how far ahead the U.S. is in terms of gay rights than Singapore. The dissenting judge's comments in this case represent a steady march forward in that country. The open system in the U.S. will allow rationality to ultimately take hold, as the government (dissenting judges included) begins to reflect the increasingly positive view of gay rights among the American people.

Meanwhile, Singapore is moving backwards. If the Singapore system, a self-proclaimed "democracy", is truly reflecting the will of its people, then the Singaporean people themselves must be becoming ever more bigoted and homophobic by the day.

Anonymous said...

Reading some of the analysis, it seems the judges' appointers make a difference although I won't be able to say whether it's because of their stance on certain issues that helped in their appointment or are the going with what's expected on them. However, I don't think one can change his or her mind publicly too many times about gay marriage or some other hot potato topic.

"Smith is a Pataki appointee, as are two of the three other judges who ruled against same-sex marriage. Both judges who dissented were named to the bench by liberal Democrat Mario Cuomo."

More: http://www.gothamgazette.com/article/civilrights/20060710/3/1902

Yawning Bread Sampler said...

Re above comment, this is the correct URL link:

Anonymous said...

A suggestion. Could it be more strongly argued that not allowing gay marriage unfairly deprives the children of gay parents of social and economic benefits on the basis of their parent's sexual orientation?

I say this since the entire judgement rests on exploiting the term "children" to elicit predisposition to find in favour of the respondents.

If the children of a gay couple are not entitled to the same benefits, could it not be said that the gay couple is bearing an unfair tax burden?

My apologies, this is the first instance that I have come to regret my lack of legal training so that I have but my own flawed reasoning processes to rely on.

Yawning Bread Sampler said...

To anonymous above - absolutely! Although I'm not a lawyer myself, I think that should make a good legal argument. The only requirement though may be that the plaintiffs may have to include a minor who is deprived of such a benefit.

How? Imagine this situation (in a Singapore case)
- a child is hospitalised
- child's biological father has no money
- child's father's spouse has Medisave available in his CPF account
- hospital refuses to allow spouse to pay for child's medical expenses, on the basis that he is (under law) unrelated to the child,
thereby somehow delaying or refusing certain treatments or upgrades.

Has this child been disadvantaged as a result of uneven tax laws based on denial of marital rights to the spouse?

If the spouse was a stepmother, that spouse could have been allowed to marry the father. But since this spouse is a stepfather, he couldn't.

Anonymous said...

A simple solution let the child be adopted by both parties or be appointed the legal guardian as allowed under law and CPF.
Please do not create new laws just to legislate extreme examples.

Anonymous said...

Playing devil's advocate, so don't shoot me.

I think the NY courts are targetting gays who do not have a family yet, from marrying and subsequently forming a non-conforming family structure. In other words, once two gays are married, the state would also have to consider their applications to adopt children. And since the bulk of the marriage benefits are for the raising of children ("316 identifiable benefits"), the state finds it proper that an union between two gays is not entitled to all these benefits.

Then we have the situation of gays who already have children and want to have same-sex marriage. This is the situation that you all are talking about. Clearly, the excuse raised by NY courts about protecting children falls flat in this situation, so you guys are absolutely right.

I can only conclude that the NY Court views that gays who already have children have made their mistake, and so the state do not want to bear the burden of their mistake. Further, it sends a clear message to others not to enter into such a position and expect the state to bear the burden of their mistake.

That is the only way I can make any sense of the report.

Of course, some of us have a fundamental difference of opinion with the NY courts - we may feel it is not a mistake for a gay to have children, hence on this logic, it is also not wrong to enter into a same-sex marriage to bring up the children.

Once we see this fundamental difference of opinion between us and the NY courts, it will be easier to understand why they wrote their judgement the way they did.

Robert L

Yawning Bread Sampler said...

To anonymous, 18 July, 11:36

Please think carefully. You said, "...adopted by both parties or be appointed the legal guardian as allowed under law and CPF."

How is adoption by two unrelated parties of the same child "allowed under the law"?

Anonymous said...

Robert L, the court's decision makes no sense whatsover, you're working backwards to justify the decision which really doesn't sound right.

You wrote, "gays who already have children have made their mistake, and so the state do not want to bear the burden of their mistake."

What mistake? I guess divorced heterosexual people who have kids and who remarried should also have all state benefits resinded? They of course shouldn't be allowed to divorce in the first place and if they do, then can't get remarried (heterosexually).

So to protect the santity of marriage (heterosexual only of course) and to prevent people from changing their minds after making their vows the first time, the courts should only accord marriage-related benefits to parents who stay married to the mum/dad of their child(ren)? Sounds about right? - 5yl

teck soon said...

Alex pointed out a hypothetical Singapore case above. Could such a case actually be brought about? I assume that such a case would be dismissed immediately, but on what grounds? How would Singaporeans react to it if it were publicised?

Anonymous said...

"5yl" directly addressed me and said:
"Robert L, the court's decision makes no sense whatsover, you're working backwards to justify the decision which really doesn't sound right."

I'll repeat what I had said:
"That is the only way I can make any sense of the report."

Ergo, without working backwards, there is no way to make any sense of that report.

To anybody sensible enough, it should be clear that we are broadly in agreement, so I wisely choose not to bother with the rest of what he/she wrote. I would not at all be surprised that what "5yl" wrote turns out to be not a contradiction of what I wrote.

Robert L

Anonymous said...

To YB Sampler

As adviced,adoption is allowed under law. Firstly as far as known, no sexual orientation declaration is asked. Secondly, as stated, if not adoption why not guardianship, and than appeals to CPF if necessary. Although acknowledging bureaucracy, yet for the sake of a child, most if not at all times,excepton is given eg the HIV + child adopted not by its biological parents. Further, taking up your extreme example, a case could be argued for extensive interim assistance from Medifund in Singapore.Reading up on your source news materials, you prefer at times to slice & dice the articles from "pressure grpup points" to buttress your own viewpoints but as this is blog this would be your own choice.