Jami posted a question in comments about a ruling from New York state's highest court that said (unanimously) that the state must recognize marriages between same-sex couples performed in jurisdictions -- specifically Canada -- where it's legal. She referenced this article on the ACLU's website. She asked me what I thought of the ruling; I'll try and give a summary of my thoughts.
First, I want to be clear that marriage is not the be-all, end-all with respect to gay civil rights, in my book. Frankly, I think marriage as an institution carries too much power in our culture and I don't think it's fair or reasonable basis upon which to allocate benefits, privileges and obligations. That said, I chose to get married (also in Canada) and I completely believe that allowing some couples to marry and not others is invidious discrimination and needs to be stopped.
I think, therefore, that it probably goes without saying that I think the ruling itself is correct and overdue (Download new_york_ruling_on_canadian_marriage.pdf).
Essentially, the court said that just because a marriage wouldn't be valid if solemnized in New York didn't stop the state from recognizing it if it were valid where performed. It cited several instances where such marriages had been recognized in the state's history (including a marriage between an uncle and a niece, performed in another US state (not able to be performed in New York because of statutes regarding consanguinity) and a marriage between an opposite sex couple that were under 18 when legally married in Canada (not able to be performed in New York because of statutes proscribing the legal age to marry as 18 or over)).
The court gave two reasons under which it could have found the marriage between same-sex couples invalid - a statute explicitly prohibiting recognition of such marriages (what the court called "positive law") or if such marriages are prohibited by something called "natural law". The defendants in the case argued that the marriage should be prohibited as against the strong public policy of the State of New York. It is the court's treatment of the last two issues that interest me the most.
First, the court gave short shrift to the idea of same sex marriages being against the "natural law". It noted that in order to prohibited under this rubric, a marriage would need to be "offensive to the public sense of morality to a degree regarded generally with abhorrence" and simply stated that such a case "cannot be said here", limiting that exception instead primarily to incest or polygamy. Personally, from a cultural standpoint, I think this is huge. It is not that long ago that it would have been this ground upon which a ruling against this couple would have been issued.
Second, the court noted that New York "unlike the overwhelming majority of states" had not enacted a mini-DOMA (legislation denying full faith and credit to same-sex marriages validly solemnized in another state). This, stating the obvious, is the part of the ruling that goes to whether or not this decision in one state can be duplicated in another. It is not the mere enactment of a mini-DOMA upon which a state can rely to deny equal recognition to otherwise valid marriages, such as this one, but it is strong evidence that a state can rely upon to prove its claim that such recognition would be violative of the state's public policy. If a state's population feels so strongly that it should deny these rights to a class of people that its elected legislature passes such a law (or, worse, a constitutional amendment) a court will almost certainly view that as dispositive. UNLESS, a plaintiff can win her case by striking down such a law as a violation of the US constitution. Therein lies the hope that this ruling in New York could eventually spread to those states whose populace have enacted such hateful and discriminatory law. And, for those states that have not enacted such law, citing to this case in New York, while not providing any binding precedent, can only be helpful.
Way to go, New York!
Does that answer your question about what I think, Jami? And, y'all should check out Jami's post regarding civil unions. No, they are NOT marriage.