New York judge recognizes Canadian same-sex marriage

As reported at Canada.com,

In a landmark case, an American court has ruled that gay couples who tie the knot in Canada can be treated as legally married in the state of New York.

Justice Joan Lefkowitz of the New York Supreme Court ruled last week that same-sex marriages performed outside the country are valid, even though gay New Yorkers cannot be legally married in their home state.

This is the first time Canadian same-sex marriage laws have triumphed in U.S. court, according to Alphonso David, a lawyer for the gay rights group Lambda Legal, which intervened in the case. [cont.]

First, the New York Supreme Court, notwithstanding its name, is the lowest level of the State court system, so calling this a “landmark” decision is a bit exaggerated. The decision will be appealed to the New York State Court of Appeals, the state’s highest court, by the Alliance Defense Fund, the Arizona-based conservative group that initiated the case when it challenged Westchester County Executive Andrew Spano’s order that county officials recognize same-sex marriages from other jurisdictions.

Second, the case is further proof that the ONLY sure way to stop the institutionalization of homosexual marriage is through a federal constitutional amendment. However, to deal with the question raised by this case, of same-sex marriages performed in other jurisdictions, the amendment may need further language.

Here is the Institution of Marriage Amendment, which has been proposed by the Concerned Women for America and other conservative groups (see my discussion of it here):

Marriage in the United States shall consist only of the union of a man and a woman. Neither the United States nor any State shall recognize or grant to any unmarried person the legal rights or status of a spouse.

Now it’s possible this language could be read as barring the recognition of same-sex marriages performed outside the U.S. But just to make sure, I propose adding another provision to the amendment:

Neither the United States nor any State shall recognize a marriage performed outside the jurisdiction of the United States unless it conforms to the definition of marriage in the United States as provided for in this amendment.

Before we leave the subject, it would be worth while considering the effrontery of the ruling. According to the article, Judge Lefkowitz

applied the legal test of comity, the principle that countries should recognize each other’s laws on marriage and other such issues as long as they don’t offend community values or run strongly against public policy. (Polygamy, for example, is accepted in some countries but not in the U.S.).

But same-sex marriage is not permitted in New York, so how could Judge Joan possibly find that same-sex marriage does not “run strongly against public policy”? By playing games:

She found there has been a sea change in attitudes toward gay marriage, noting the “expanding recognition of rights accorded homosexuals, lesbians and transsexuals.”

Both the state’s attorney general and comptroller have publicly supported the extension of spousal rights to same-sex partners, and other court rulings and laws have recently granted gay couples inheritance and adoption rights, she noted, concluding that same-sex marriages do not offend community values.

Well, this is all very nice, but a sea change in attitudes, plus expanding recognition of rights for homosexuals, plus the fact that some state officials’ personally support homosexual civil unions, plus the fact that some courts have granted homosexual couples inheritance and adoption rights, do not add up to saying that New York State public policy recognizes homosexual marriage. Clearly it does not. Lefkowitz took general trends that go in the direction she likes, constructed them into a factual determination that is manifestly untrue, and on that basis introduced into New York State an institution that is not allowed under state law.

Which only shows again that only the clearest, most unambiguous language in the U.S. Constitution will put a stop to the institutionalization of homosexual marriage.

Posted by Lawrence Auster at August 21, 2007 08:31 AM | Send