The Long Road to US Equality: It’s Up to You, New York

From the New York Times:

In what one legal scholar called a contest between judicial hearts and minds, parsing of legal texts and private sympathies, New York’s highest court is expected to rule Wednesday on whether to permit gay and lesbian marriages in the state.

There are several directions the Court of Appeals could take, lawyers said. The most sweeping would be a clear affirmation of a constitutional right of same-sex couples to marry, which would make New York the second state in the nation after Massachusetts to allow such marriages. In that case, the court could order the Legislature to rewrite the state’s marriage law.

Stephen Gillers, a law professor at New York University, suggested that a majority of the six judges deciding the case — a seventh recused himself — are personally sympathetic to what the plaintiffs are asking for. But the issue, he said, will be how they read New York State’s marriage law, the state constitution, and legal precedents, which are all different from those in Massachusetts.

“The question will be where will their brains be,” Mr. Gillers said this week. “The question is whether they can intellectually do what I think intuitively and emotionally they’d like to do.”

Supporters have been waiting eagerly for the decision.

“On the one hand, if there is a victory in the case, it would be a great and historic day,” said Roberta A. Kaplan, one of the lawyers who argued for gay marriage before the high court in May. “On the other hand, I’m sure we’ll all look at this issue five years from now and say, what was the big deal? Because there is a clear line of authority now moving in our direction.” One “friend of the court” brief arguing against same-sex marriage said that opposition “is not rooted in animus towards gay and lesbians,” but in the conviction that “only opposite-sex unions can both create the next generation and connect those children to the mother and father who made them.”

The court could also take a more administrative tack, by simply ruling that words like “husband” and “wife” in the marriage code should be changed to gender-neutral words like “spouse.”

The decision expected today would combine four different lawsuits, representing 44 gay and lesbian couples around New York State. The highest-profile case is Hernandez v. Robles, in which five couples are suing New York City’s clerk, who issues marriage licenses. It is the only case in which plaintiffs have won a victory in the lower courts.

Let’s hope the Empire State’s highest court ignores individual religious conviction and does the right thing: mandates justice and equality under law. That’s its job.

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