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05/30/2007

Focus on your 'definitions': Take Two

by Jeremy Hooper

So you remember on Friday when we showed you how both Focus on the Family and a senior counsel at the Alliance Defense Fund were trying to make it sound like marriage is "defined by law as one man, one woman" in New York state, despite the fact that no statute or amendment actually does so? Well, in an attempt to try and refute our point, an unidentified FOF staffer wrote us today with this:

Picture 12-23

So basically this person has quoted a portion of the Court of Appeals decision (pdf) that really has little to do with the issue we raised. Yea, that's soo not gonna work with us. So here is this writer's emailed response to FOF:

Please do not insult my intelligence. What both you and Mr. Raum asserted is that marriage in NY state is DEFINED as "one man/ one woman." This is simply not true (which we have verified with numerous local legal scholars)!!! That "definition" -- or "redefinition," as you kids would likely say -- was explicitly left up to the state legislature. From Hernandez v. Robles:

We hold that the New York Constitution does not compel
recognition of marriages between members of the same sex.
Whether such marriages should be recognized is a question to be
addressed by the Legislature.

...
Our conclusion that there is a rational basis for
limiting marriage to opposite-sex couples leads us to hold that
that limitation is valid under the New York Due Process and Equal
Protection Clauses, and that any expansion of the traditional
definition of marriage should come from the Legislature.


As for what you quoted to us: These particular findings do nothing to back up your flawed assertion that marriage is "defined" in the Empire State. In fact, what you quoted is merely the court's refutation of the amici argument that state law can be interpreted to be same-sex-marriage-inclusive. But the thing is, that is not the point of you/ Mr. Raum's piece with which I took exception! I never denied that the court determined there was a rational basis for limiting marriage to different-sex couples, and I never denied that they found such a limitation was within legal bounds. What I argued was that despite the court's determination that the law as written does not violate gay couples' constitutional rights, they still did not "define" marriage in the Empire State as "one man/ one woman"! There is simply no statute or amendment that "defines" it, and I believe you truly know this!

-Jeremy

Jeremy Hooper
Good As You
www.goodasyou.org

What is so annoying about this is that the argument so often employed by social conservatives seeking gay marriage-banning amendments is that the only way to "define marriage as one man, one woman" is to obtain such a measure. What they always mean when they fearmongeringly use this hostile terminology is that only these discriminatory amendments are good enough to successfully make such "definitions." But New York has not and would (hopefully) not ever approve such a ban. There is also no state DOMA law in New York. Sure, same-sex New York couples are, for now, still disallowed entry into the institution, but there is -- and we cannot repeat this enough -- no explicit "definition" demanding their exclusion! One court's majority opinion that the state Constitution doesn't compel them to recognize same-sex marriages does not add the sort of "NO GAYS EVER!" stipulation has been foisted on various other states.

But then again, we guess "judicial activism" is only kosher when it works in the "pro-family" movement's favor.

**UPDATE: It should be noted that in the above quoted Court of Appeals decision, there use of the words "the traditional definition of marriage" is speaking only to the way that marriage has been traditionally known in the past, and not an actual definition that is spelled out by state law.

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