Strengthening Constitutional Self-Government

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The judicial road to same-sex marriage

The New York Times celebrates this decision, described here. The upshot is that, in the absence of any positive legislative action, the state of New York is required to give effect to marriages that are legally performed in other jurisdictions.

The court also acknowledges a line of precedents that prohibit state acknowledgement of marriages that are not in accord with "natural law." But in this case:

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or
marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” and that cannot be said here.

As the court understands it, natural law "evolves" with the public tastes and sensibilities, at least as they’re perceived by the judges. Legislators who favor this result don’t have to do anything, not even take political heat for supporting same-sex marriage. I’d prefer a more "inclusive" discussion of the state of the "public sense of morality."

Discussions - 2 Comments

Joe - While I generally agree with you that this matter ought to be decided by legislatures, it is hard to see (from the opinion) what else this court could have done. It evidently followed precedent. It is a precedent that has the phrase "public sense of morality" and it is here that one wonders what NYS case law means by "natural law." Perhaps a legal scholar can tell us. In any event, this case is not the sort of "judicial activism" that we saw in Massachusetts. The legislature can change existing NY law regarding recognition.

Steve,

In this case, what the public does or doesn't abhor is apparently to be inferred from the lack of legislative action, which surely wouldn't have been the case in the past. In the good (??) old days, natural law surely would have meant something a bit more permanent and robust.

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