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Marriage equality in New York: It should have been done better.

Mark D. White

Last nigt New York Governor Andrew Cuomo signed a bill allowing same-sex marriage after a lengthy process of legislative tomfoolery. Those who have read my previous posts and work on the issue will not be surprised to hear that I am very happy about the result and less than pleased with the process.

Unlike most, I think issues such as same-sex marriage, which at their core are issues of human rights and dignity, are matters best dealt with by the courts, not the legislature--a small quibble, perhaps, seeing that the just result was achieved, but an important one nonetheless. Just in pragmatic terms, legislation can be overturned much more easily than court decisions. But on principled terms, human rights should never be put to a vote--they should be affirmed by the courts, our designed guardians of principle, rather than a deliberative political body.

One quote from the news report above (from The New York Times) may help make my point:

With his position still undeclared, Senator Mark J. Grisanti, a Republican from Buffalo who had sought office promising to oppose same-sex marriage, told his colleagues he had agonized for months before concluding he had been wrong.

“I apologize for those who feel offended,” Mr. Grisanti said, adding, “I cannot deny a person, a human being, a taxpayer, a worker, the people of my district and across this state, the State of New York, and those people who make this the great state that it is the same rights that I have with my wife.”

Very inspiring, and it helps make a case that popular affirmation of same-sex marriage may be more satisfying symbolically (especially when it involves people changing their minds and supporting it). But it also points out that the people of New York state left it to its state legislature to decide whether gays and lesbians have the same rights that straights have with their spouses. And as we have seen over the weeks this has played out, the successful vote was never assured until last night--a dreadfully uncertain and contingent method for asserting equal human rights and dignity for all.


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I totally agree, Mark. However, as I noted in my post on the Fed flying the gay pride flag, it's not sure whether human rights appeals work before the cost/benefits are calculated. When we think about the Geneva Convention for the treatment of prisoners, many people today support it because of the utilitarian consequences for one's own troops. Human rights may be the window dressing on the side--quickly put aside (by Bush) when it was no longer convenient. Any thoughts?

Interesting point, Jonathan--had to think about it for a while. I think that, deep down, people have deontological intuitions, but they're wary of enduring large costs to support them--that's where the cost-benefit analysis comes in, like with threshold deontology.

But then again, you have the case of torture, which many people are willing to endure very high costs to avoid engaging in. It depends on the seriousness of the duty or rule, too, but then that risks becoming a cost or benefit too.

Just a quick comment here to say there is another perspective: a legislative victory can actually be more durable because it is viewed as democratic and thus legitimate. Courts are so often tarred with the label of "activist judges" that it can set off a backlash. There are some who believe--references escape me now--that if pro-choice statutes would have come from legislation rather than Roe v. Wade that there would not be such a prolonged and violent anti-choice movement.

Thanks, Jason--yes, that's the prevailing consensus, against which I'm arguing. The legitimacy of legislation is illusory which the issue is rights, which are a matter of principle rather than policy, and therefore best left to the judiciary in the interest of true legitimacy (deriving its claim to popular consent through the Constitution itself).

Hi Mark, many thanks for the reply. I'm now reading your post on the "absurd legislative ping-pong game" in New Hampshire, and certainly share this concern.

I agree with you as a matter of principle that basic human rights should not be subject to legislative whim. However, we are here dealing with tactics to extend rights, which may put us on different footing. There are many senses of "true legitimacy" and sometimes a legislative extension can be as--if not more effective--at delivering that.

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