A win for status quo

July 07, 2006

In a conflicted and somewhat contradictory decision, New York's highest court ruled yesterday that constitutional guarantees to equal protection and due process don't necessarily apply to same-sex couples seeking to marry.

The court allowed as how society may well find good reasons to confer the advantages of marriage on gay couples, but said the issue is one for the state legislature to decide.

Thus, the movement toward popular acceptance of gay marriage hit another of its frequent bumps along the road. Even in this disappointing, if not entirely unexpected, defeat, though, there were signs of what nonetheless remains an irrepressible drive forward.

Ultimately, Americans will look back and regard the current discrimination against gay couples in the same way the nation now regards prohibitions against interracial marriage, which were overturned in 1967 by the U.S. Supreme Court on the same constitutional grounds rejected by the majority in the New York case.

Yet if interracial marriage had been left exclusively to the states, some might still be holding out. Legislatures that bob and weave with popular sentiment often aren't the best guardians of minority rights.

Indeed, what's sending gay couples to the courts is the recognition that popular sentiment at the state level appears to be running counter to their interests. In a separate decision yesterday, in fact, Georgia's Supreme Court upheld a constitutional ban on gay marriage that had been overturned by a lower court on a technicality related to the ballot question approved on referendum.

A dozen states have approved such constitutional bans since the top court in Massachusetts upheld the right to same-sex marriage two years ago. A total of 19 states prohibit gay unions, but legal challenges are under way in many, including Maryland.

It is the court's duty to safeguard individual liberties where legislatures fail, observed Judith Kaye, chief judge of the New York Court of Appeals, who dissented from the majority in yesterday's ruling. "I am confident that future generations will look back on today's decision as an unfortunate misstep," she wrote.

Or just another bump along the way.

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