Recognizing Same-Sex Marriage in New York

The national battle over same-sex marriage touches on many issues that divide Americans. Naturally, the generalized media outlets tend to focus on the social issues: is same-sex marriage morally acceptable? Is it morally required? Is it a threat to the family? What happens to children raised by same-sex parents? ...etc. But there is also the question of whether the decision of whether or not to permit same-sex marriage is a question for the courts or for the legislatures. This is a fundamental question that goes to the very structure of representative government.

Of course, much has already been written about this issue, but as a new legal battle over same-sex marriage is once again taking place in New York's highest court, I thought it appropriate to address the question here.

First the context:

In the 2006 case of Hernandez v. Robles, the New York Court of Appeals ruled that New York's Constitution did not permit same-sex couples the right to marry. Instead, the Court held that the question was one to be decided by the Legislature. (Incidentally, whatever one's general view of whether the question is for the courts or for the legislatures may be, the wisdom of leaving a question as fundamentally important as this one to Albany in particular was questionable in 2006, and almost unthinkable after this summer's legislative meltdown).

In her dissenting opinion, then Chief Judge Judith Kaye noted that "[t]his State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition."

The issue in two cases argued before the Court yesterday, Godfrey v. Spano and Lewis v. New York State Department of Civil Service, are more narrow, but nevertheless important. In Godfrey, the question is whether it was legal for the Westchester County Executive to order all county agencies to recognize same-sex marriages validly performed outside the state in the same manner that they recognize opposite-sex marriages. In Lewis, the question is whether it was legal for the Civil Service Commission to grant health and other benefits to same-sex spouses of government employees who were validly married outside of New York.

In 2008, Governor Patterson issued a general order directing all state agencies to recognize same-sex couples validly married outside of New York. According to the New York Times, the questions by the judges during the Godfrey and Lewis arguments suggested that they may be considering skipping over the narrower issues in the cases and making a broad ruling on whether New York is required to recognize valid same-sex marriages performed elsewhere even though such marriages cannot be legally performed in the state. Of course, as pointed out by the lawyer challenging both orders, a broad decision by the Court might cut either way.

So, my question is this. What is the proper balance between allowing the democratic process to function through the elected representatives of the people and ensuring that the fundamental interests of minority groups are protected from the caprice of the majority? In other words, as a nation (or as a State, fellow New Yorkers) is it possible to be fully commited to democracy and the rule of law or are there inevitable tensions that must be resolved against one ideal or the other? So, regardless of your opinion on the question of whether same-sex marriage should be permitted, who should decide and why?