Well, Hell.

Interesting decision from New York's highest court.

N.Y. Court Upholds Gay Marriage Ban

By ANEMONA HARTOCOLLIS

New York's highest court today turned back an attempt by gay and lesbian couples to win equal treatment under New York State's marriage law, saying that the state constitution "does not compel recognition of marriages between members of the same sex."

The entire opinion is here.

My opinion? The most compelling work of fiction available until Harry Potter 7 comes out.

A few key points:

1. The majority went to great pains to emphasize that this wasn't a "strict scrutiny" issue, but a "rational basis" issue.

In English, when someone claims the state is discriminating against him or her, he or she has to claim the law treats him or her unfairly. He or she is denied "equal protection" under the law, which is un-Constitutional. If the discriminatory conduct affects a "fundamental right" (e.g. race-related issues, religion, etc.) the court applies a "Strict Scrutiny" standard, the highest available. The state has to prove the discriminatory statute in question addresses a compelling objective, and there's no other means available to meet that objective. In lesser forms of discriminatory conduct, the party harmed by the conduct has to disprove that the state only has a "rational basis" for the conduct. (Not even a good reason for the discrimination, just one that sounds good).

Did you get all that? If it's a fundamental right, the state's on the spot to justify its actions. If it's not a fundamental right, the harmed party has to prove there's no good reason whatsoever to justify the state's conduct.

Marriage has always been considered a fundamental right. In 1996, the Hawaii Supreme Court ruled the state couldn't discriminate against gay marriage because it was considered a fundamental right, subject to strict scrutiny, and the reasons the state gave for denying the rights of homosexuals to marry failed the test. (The Hawaii legislature quickly overrode the court's ruling.)

So, at first glance, the New York high court had to apply the strict scrutiny standard, right?

Wrong.

It seems that while the rights of heterosexuals to marry is subject to strict scrutiny, the rights of HOMOSEXUALS to marry is only subject to the "rational basis" argument. At least, according to the state of New York.

The court's "rational basis" argument fell along typical Holy Terror talking point lines. Children are best raised in a one-man one-woman household, that the main purpose of marriage is to have and raise kids, blah blah blah. Same eighteenth-century stuff they always spew out. The court didn't even bother addressing whether the arguments were even rational or not. Apparently, there's even an "irrational basis" standard.

Even then, the New York high court punted. Ultimately, said the court,

"we believe the present generation should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same sex marriage will address their arguments to the legislature; that the legislature will listen and decide the issue as wisely as it can; and that those unhappy with the result--as many undoubtably will be--will respected as people in a democratic state should respect choices democratically made."

See how creative a load of bullshit that was? J.K. Rowling's stuff about Lord Voldemort and the Half-blood prince should be so imaginative.

However, not everybody on New York's Court of Appeals is an idiot. Chief Judge Judith Kaye says in her dissent,

"Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections taht come with civil marriage--purportedly to encourage other people to procreate. Indeed, the protections that the State gives to couples who do marry--such as the right to own property as a unit or to make medical decisions for each other--are focused largely on the adult relationship, rather than on the couple's possible role as parents. Nor does the plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State's interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage--even apart from the totality of marriage itself--does not independently violate plaintiffs' rights to equal protection of the laws.

The plurality's decision is positively prehistoric in scope, and it displays the worst mentalities of the Holy Terrors' War on Whoopie.

I've been asked more than once what it will take for the Powers That Be to finally admit that same-sex marriage ought to be legalized.

They will have to admit:

1. That gay couples are no better or worse than heterosexual couples or even than single parents, when it comes to raising kids;

2. That being married can be, but doesn't have to be about raising kids;

3. That maybe, just maybe, being married ought to be about consenting adults sharing lives, regardless of race, relgion, or sexual preference;

4. That deciding which consenting adults pair up with whom is really none of the state's damn business, anyway.

Rant over. Return to your regular broadcasting schedule.