Governor David Paterson issued a memo in mid-May—regarding a three-month-old court decision—that was ignored for a few weeks and then, suddenly, publicized. An appellate court upstate had said that a Canadian marriage between two women must be recognized in New York. This wasn’t much in the way of news! Mr. Paterson had already lobbied for (and seen passed last year, in the Assembly, at least) a bill saying much the same.
But that case, Martinez v. County of Monroe, caused some panic elsewhere. On May 30, the attorneys general of 10 states, led by the attorney general of Utah, sent a letter to the chief justice of the Supreme Court of California. They were concerned, in light of Martinez, about that court’s own decision on May 15; California set aside its ban on marriage between people of the same gender. The offices of the attorneys general would be, they said, overburdened by the “inevitable result” of “marriage tourism.” (That’s like sexual tourism, but everyone gets blenders, and no one gets hurt, except family values.)
You see, the gays will travel to California, get married, come home and sue to have recognized any number of the rights accorded to everyone else’s arrangement of merged sexual duties and labor-sharing—demanding their own witchy little rituals that culminate in the receipt of useless bits of cutlery and sexual boredom.
So the court could, they suggested, wait a while. Homosexual-paired marriages are to commence on June 17 in California. Couldn’t California hold off until November—when a voter initiative will or will not amend the state constitution to re-ban gay marriages?
“To us it didn’t make sense to engage in any litigation or tie up any resources for six months or so,” said Sandi Copes, spokesperson for the Florida AG. “We’re asking them to wait until this ballot initiative. And then, if necessary, we can engage in litigation. So it’s really just saying: Don’t put the cart before the horse.”
But by the next day, there were only nine states begging for this help. New Hampshire had to bag out.
Its Senate and House had passed a bill last year, it turned out, that explicitly stated “a marriage between a man and another man or a woman and another woman” from out of state would be recognized as a civil union there. Sort of embarrassing! Particularly given that the law just went into effect this January. (The New Hampshire attorney general’s office did not return a phone call and does not have a communications office.)
Then, on June 2, the California secretary of state confirmed that the ballot measure to actually alter the state constitution to limit marriage to a man and a woman would indeed go before the voters this November.
ON THE FIRST floor of the New York City Bar Association, there is the Davis room, full of memorabilia. It is named after John W. Davis, elected president of the American Bar Association in 1922. One of the last cases Davis argued was Briggs v. Elliott, one of the five cases consolidated into the landmark case Brown v. Board of Education. Unfortunately for history, Davis was representing desegregation-adverse South Carolina, and arguing against the N.A.A.C.P.
Upstairs in that building on Monday night, a few lawyers, before an audience that seemed to be composed mostly of summer associates, presented their thoughts on the state of the sphere of privacy five years after Lawrence v. Texas, the Supreme Court decision that made legal the previously criminalized “deviant sexual intercourse” between people of the same sex.
Arthur Leonard, of New York Law School, gave a little history—which was interrupted at one point by New York Supreme Court Justice Doris Ling-Cohan. “History will be on our side,” she yelled. (She is a rare real-life example of what conservatives are actually talking about when they make those arguments about activist judges.)
In 2005, Ms. Ling-Cohan had declared that New York State laws that defined marriage as an arrangement between a man and a woman violated the state constitution. Mayor Bloomberg was then campaigning for reelection; he made the choice to say that he supported the ruling and gay marriage, and also that the city would appeal, and the decision was overturned later that year.
“I think he tried to punt,” current City Council Speaker Christine Quinn, who is now in Mr. Bloomberg’s very good graces, told The New York Times.
SOMEWHAT SIMILARLY, the attorney general of Utah, Mark Shurtleff, was opposed to his state’s Amendment 3—which in 2004 amended Utah’s constitution to ban same-sex marriage—and yet must now defend it as a matter of law.
But, contrary to the way the Log Cabin Republicans and others have trimmed and rebroadcast his statement into seeming like support for gay marriage, Mr. Shurtleff opposed that amendment only because it also outlawed domestic unions between men and women.
Also because the language could quite possibly be interpreted to invalidate the rights of those in common-law marriages—a situation that is a very hilarious case of idiots amending their constitutions in a panic, only to shoot themselves in the foot.
Mr. Shurtleff took a lot of flak for his opposition. This year, though, he is up for reelection! And so his office, composed of more than 400 staffers and approximately 225 lawyers, somehow believes it must oppose the California court.
“We’re just making our position known,” said Paul Murphy, the office’s spokesperson. “The California Supreme Court will do what it plans to do. I think we wanted the court to know there are consequences for other states beyond California.” Unlike, you know, so many other decisions.
In the letter sent by the attorneys general, the 10, now 9, states get caught up in their own drama. “Out of our commitment to the principles of ‘our federalism,’ we would simply shoulder that burden without comment,” they write—were it not for the icky forthcoming voter strife.
That phrase, “our federalism,” comes from U.S Supreme Court Justice Anthony Kennedy’s concurrence to U.S. v. Lopez, 1995. The decision in that case, essentially, rebuked Congress for intruding on the states. Justice Kennedy went on: “The States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.”
So the attorneys general are actually taking the extraordinary step of asking an out-of-state court to unmake a decision, and to transform an order into a voter guide. When really their duty is to accept, state by state, the burden of litigation—to defend their own hapless voters from the alleged onslaught of marriage tourists. It makes Mr. Paterson look like a bomb-throwing revolutionary.
