The New York Court of Appeals has rejected arguments that the New York State constitution should provide a right to gay marriage saying that the constitution, "does not compel recognition of marriages between members of the same sex." Instead they said it was a matter for the legislature to address. In rejecting the arguments, the judges also rejected creation of rights by judicial fiat. The New York Times, of course, uses loaded language to discuss the decision:
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 court's ruling combined four different lawsuits by 44 gay and lesbian couples throughout the state, who argued that they had a constitutionally protected right to be married like heterosexual couples, and that to deny them that right violated the due-process and equal-protection clauses of the state constitution.
In a rare fracture, the six judges were split into a plurality of three, who signed the majority opinion; a concurring opinion by one judge, and a strong dissent by the other two.
The majority opinion agreed with lawyers for New York City and New York State that there was a rational basis — grounded in the stability of the family as a child-rearing institution — for limiting marriage to a union of one man and one woman.
But it left open the possibility that the state Legislature could decide to allow same-sex marriages.
"We hold that the New York Constitution does not compel recognition of marriages between members of the same sex," Judge Robert S. Smith wrote in the majority decision. "Whether such marriages should be recognized is a question to be addressed by the Legislature."
Regardless of where one stands on the issue of gay marriage, they should be quite happy to have the court step away from judicial activism. Courts should not be in the social engineering game at all.
(By the way, for those who are not aware of the quirk in the New York court system, the Court of Appeals is the highest court in the state. What is called by the name 'Supreme Court' in New York is actually a lower, trial court.)
UPDATE: And in a related development the outbreak of judicial restraint reaches Georgia where judges issued a ruling reinstating Georgia's voter-mandated ban on gay marriage.
In Georgia, where three-quarters of voters approved a ban on gay marriage when it was on the ballot in 2004, the top court reinstated the ban Thursday, ruling unanimously that it did not violate the state's single-subject rule for ballot measures. Lawyers for the plaintiffs had argued that the ballot language was misleading, asking voters to decide on same-sex marriage and civil unions, separate issues about which many people had different opinions.
Again, regardless of where you stand on the issue itself, the correct way to deal with it is at the ballot box, not by judicial fiat.