By now you’ve certainly heard plenty of the New York Court of Appeals decision regarding same-sex marriage in New York. Essentially, the court decided that the law defining marraige between a man and a woman was rationally related to a legitimate government interest (ie promoting stable, two-gender hosueholds for children).

I can’t argue with that at all.

But I still think the court made a mistake.

The court’s insistence that something like this must be accomplished legislatively isn’t entirely true. It is, in fact, the job of the judiciary to protect minorities from being oppressed by the majority, even if it is the majority’s desire to have the law one way. Many people have picked onanti-miscegenation as a bad example. And it isn’t perfect, but it illustrates the point: at one time in our history, the majority of people in many states decided that they wanted to prohibit marriage between people of different races. That was the will of the majority. Nevertheless, the court invalidated the law, because it is the job of the judiciary to protect those that can’t protect themselves via the majority. So relying on the legislature to cure a problem of discrimination that is the will of the majority isn’t the right way to go for the judiciary. There’s mistake number one.

Even so, the court made an ostensibly constitutional argument, hence the “rational basis test” illustrated above. And that’s where I think the court made a bigger mistake.

I understand that many in my readership are not lawyers or law students, so I’ll take a quick aside to explain some necessary background knowledge for my next argument. Essentially, when it comes to constitutional jurisprudence, and particularly Equal Protection (“No state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.” (US Const. Am. 14)) the Supreme Court has articulated three levels of review: the lowest is rational basis, the middle is intermediate scrutiny and the highest is strict scrutiny. The type of review of the statute at hand relates to the interest that is infringed. A law that discriminates based on race, for instance, will be subject to strict scrutiny. What that means is that in order for the law to be found constitutional, the government must prove that it is necessary to achieve a compelling government interest. (This standard is almost never met). If the statute discriminates based on gender, for instance, the statute is subject to intermediate scrutiny, which means it must be substantially related to an important government interest. And finally, most other forms of discrimination will fall to rational basis, where the applicant has to show that the statute is not rationally related to a legitimate government interest. Most statutes survive this basis of review. The real threshold question that is determinative as well is what basis of review to apply. In order to trigger strict scrutiny, the law must discriminate against a “discrete and insular minority.”

Although it has never been clearly articulated, decisions like Romer v. Evans and the recent NY one make it clear that courts will apply a rational basis test to statues that discriminate based on sexual orientation. But this is far from settled law. Essentially, the NY Court of Appeals had an opportunity to say, “in NY, it is time that the courts articulate loud and clear the position that discrimination against people based on sexual orientation is suspect, and will trigger strict scrutiny.” The marriage statute would never have passed strict scrutiny, and the court could have then determined that restricting marriage to a man and a woman only discriminates based on sexual orientation and is therefore unconstitutional.

Would a pronouncement like this have been radical? Sure. Would it have been wrong. No. If gender can be a “quasi-suspect class” (a kinda-minority) when there are equal numbers of women in American as men, then at the very least sexual orientation can also be. Would the law have passed intermediate scrutiny? Likely not (based also on burden shifting issues).

So, sure, maybe the New York Court of Appeals decision might have been specific and limited and coldly legal, but it also missed a valuable opportunity to do something truly beneficial, which is too long in coming in this country.