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Another fair-minded decision, another call for mob rule

by Jeremy Hooper

Picture 10-77If accurate assessment and fair-minded discourse were Gary Bauer's objective, then he never would've written the following:

In response to an appeals court ruling brought by a homosexual couple “married” in Canada, the governor of New York [David Patterson] has just issued an executive order requiring the Empire State to recognize homosexual “marriages” performed in other jurisdictions, such as California, Canada and Massachusetts. According to the New York Times, New York will be the only state that recognizes homosexual “marriages” where homosexual “marriage” is not legal. How can that be? In 2006, the state’s highest court refused to recognize same-sex “marriage” and rightly said the issue should be decided by the legislature.

But the governor’s action effectively circumvents the state’s highest court, bows to foreign law and violates the principle of separation of powers by superseding the legislature. Again, we are witnessing the advance of the homosexual agenda by the most undemocratic means possible. The governor of New York and the appeals court judges should be impeached.

Unfortunately, however, getting out the facts is not Mr. Bauer's goal. He instead wants to confuse his supporters on a confusing topic so that they are led to believe that their will has somehow been violated. And he wants to do so using the sort of ad hominem attacks that suggest people should LOSE THEIR JOBS simply because they've carried out their duties in a way that conflicts with Mr. Bauer's worldview. The aggressive ignorance is stupefying!

The truth of the matter? New York state has no law preventing the recognition of out-of-state marriages, be they opposite-sex nuptials or same-sex. Furthermore, the state has a history of recognizing marriages from other states, even when the couple wouldn't be eligible to get married under New York law (such as common-law marriages). And so by applying the state's century old "marriage recognition rule" to out-of-state marriages of same-sex couples, Gov. Paterson is not "violating ANYTHING! Instead, he is simply staying consistent with current policy. Such is his duty.

What the Court of Appeals said in their unfortunately short-sighted '06 ruling is that it's up to the legislature to open up marriage to same-sex couples. This latest directive does NOTHING to "circumvent" that decision or to supersede the legislature (who can and will still make a decision on the future of marriage equality in the state). All Paterson and an earlier appellate court ruling (rightfully) determined on this matter is that in the absence of a DOMA law or other measure that specifically hinders out-of-state recognition, the state must employ the same fairness for straight couples as they do gay ones. This is not an example of "the homosexual agenda™" in play -- it's exemplary of the parity- and fairness-loving "homogeneous agenda"!

The "pro-family" movement's bread and butter is to paint all situations like this one as "undemocratic," so as to incite rage amongst the mobs. That sort of mentality is obviously offensive to the gay people who feel that their government has always had a right and a duty to recognize our couplings. However, it also should offend anyone, regardless of sexual orientation, who sees an interest in informing rather than enraging the public. For Mr. Bauer's hyperbolic and vitriolic calls for impeachment are not only anti-gay -- they're also foolishly anti-civics!

Bauer Calls for Impeachment of N.Y. Gov. David Patterson for Recognizing Out-of-State ‘Gay Marriages’ [AFT]

**EARLIER: See Paterson explain himself in profoundly reasonable ways: Video: Standing up for gays, apologizing to no one [G-A-Y]

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Your thoughts

Good analysis, Jeremy. If Bauer et al would actually read the Martinez decision, it's pretty clear that the Court followed the law and establised precedent in New York State on this issue. All the the governor did was comply with the Court's ruling, which is his duty as chief executive. They are free to take issue with the Court's reasoning all they wish but their real fight is with the Legislature, not the Court or the Governor. It is the Legislature whom they need to press to pass a law favorable to their cause and good luck with that. The divided legislature can't seem to get a law passed in favor or opposed to same-sex marriage at the moment so I suppose this will have to wait until one side or the other wins control of enough seats. Hopefully by then we will have prevailed.

Here's the key portion of the Martinez decision that Bauer is conveniently skipping:

For well over a century, New York has recognized marriages
solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the “positive law” of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of “natural law” (Matter of May, 305 NY 486, 491; see Moore v Hegeman, 92 NY 521, 524;
Thorp v Thorp, 90 NY 602, 605; see generally Van Voorhis v Brintnall, 86 NY 18, 24-26). Thus, if a marriage is valid in the place where it was entered, “it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute” (Moore, 92 NY at 524; see also
Thorp, 90 NY at 606; Van Voorhis, 86 NY at 25-26). Under that “marriage-recognition” rule, New York has recognized a marriage between an uncle and his niece “by the half blood” (May, 305 NY at 488), common-law marriages valid under the laws of other states (see Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289, 292-293), a marriage
valid under the law of the Province of Ontario, Canada of a man and a woman both under the age of 18 (see Donohue v Donohue, 63 Misc 111,112-113), and a “proxy marriage” valid in the District of Columbia (Fernandes v Fernandes, 275 App Div 777), all of which would have been invalid if solemnized in New York.

We conclude that plaintiff’s marriage does not fall within either -3- 1562 CA 06-02591 of the two exceptions to the marriage-recognition rule. “[A]bsent any New York statute expressing clearly the Legislature’s intent to regulate within this State marriages of its domiciliaries solemnized
abroad, there is no positive law in this jurisdiction” to prohibit recognition of a marriage that would have been invalid if solemnized in New York (May, 305 NY at 493 [internal quotation marks omitted]; see also Van Voorhis, 86 NY at 37). The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly
entered into outside of New York, and we thus conclude that the positive law exception to the general rule of foreign marriage recognition is not applicable in this case. The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” (May, 305 NY at 493), and that
cannot be said here.

Posted by: John | May 30, 2008 8:36:18 AM

Thanks John!

Posted by: G-A-Y | May 30, 2008 8:55:43 AM

Gay issues aside, this kind of mentality is also highly offensive to those of us whose brains are used for more than keeping our skulls from collapsing.

Posted by: Evan | May 30, 2008 10:36:19 AM

Thanks John and thanks Jeremy once again. I am tired of these religious maggots, every single day some more hatred spewed in the name of the family.

Posted by: johnozed | May 30, 2008 3:18:38 PM

It angers me to see the conservative-right continuous claim that the advent of gay-rights as ruled by the church or the executive is undemocratic. This was also recently highlighted in California where the Supreme Court overturned the ban on same-sex marriages.

The Judiciary exists (in part) to ensure that the legislature does not unlawfully overstep its constitutional authority. One of the beautiful things about constitutional democracy is that it does not allow mob-popularism to run rough-shod over the rights of a minority.

Also one is inclined to invoke John Stuart Mill's "Harm Principal" namely that the sole purpose of law should be to stop people from harming others. As permitting Gay-Marriage does not harm straight couples, there is no basis for a ban.

Again using the harm-principal. Just because conservatives have moral objections to homosexuality does not give them the right to impose their morality on others. No-one is forcing them to get a gay-marriage. So they ought to just quietly abstain.

That's the opinion of this Brit anyway.


Posted by: David | May 30, 2008 7:59:30 PM


Excellent point. My belief has always been, to paraphrase an earlier quote "Against marrying someone of the same sex? Then don't do it." People like Gary Bauer need to return to civics class (I know I am dating myself here) before opening their mouths and making themselves look like fools.

Posted by: Clancy | Jun 1, 2008 12:26:13 AM

Clancy, one of my favorite buttons reads, "Against gay marriage? Don't marry one."

Personally, I wish the wingnuts would stop referring to the "Homosexual Agenda" (sorry Jeremy, but I can't make your little trademark symbol). Whenever I hear that, I always feel like I misplaced something important. No use asking my husband for his copy, he losses everything.

Posted by: Mike in the Tundra | Jun 1, 2008 7:08:39 PM

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