In the heady times following the Massuchusettes ruling allowing same-sex marriage, same-sex marriage activists thought the corner had been turned for their cause. They were very much mistaken though. The latest blow to their cause came this week when the New York courts ruled that there is not a fundamental right to same-sex marriage. This is especially troubling for same-sex marriage advocates, because New York is a deep-blue state and the courts there are seen as “progressive.”
The New York case results from suit brought by 44 couples denied marriage licenses in various municipalities in New York. The plaintiffs brought suit claiming that the failure to issue a marriage license to them to marry another of the same gender violated the due process clause and equal protection clause of the New York Constitution. The clauses have been given more expansive readings than similar provisions in the U.S. Consitution, which is part of the reason suit was brought. The New York High Court, joining Arizona, New Jersey and Indiana, rejected the claim.
At the time of this writing, twenty states have constitutional amendments explicitly barring the recognition of same-sex marriage, confining civil marriage to a legal union between a man and a woman. Forty-three states have statutes defining marriage to two persons of the opposite-sex. Most of the constitutional amendments have been in reaction to the Massachusettes decision. This comports with public opinion polls reflecting roughly 60-40 against recognition of same-sex marriages.
It appears that the courts will let this play out in the state legislatures from coast to coast. I agree with the courts. If one looks at traditional due process rights, the right to marry is fundamental. The right to same-sex marriage is not, as even those legal scholars in favor of gay marriage will admit . If the activists want to obtain same-sex marriage rights for same-sex couples then they must win over the public, rather than try to force feed them.
There is only one other state in the country that might allow same-sex marriage. The battle in the courts is largely over. The activists jumped the gun. As a result of running to the courts instead of winning over the public, same-sex advocates face nearly insurmountable hurdles to achieve their desired goals. This result is a direct outccome of a belief that it is an “us against them fight” mentality. So much for we will break the door down tactics.