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Daily Record op-ed by Professor Steve Schwinn urges Maryland courts to ignore New York same-sex marriage ruling

The Daily Record (Baltimore, MD)
July 28, 2006

Md. courts should ignore N.Y. same-sex decision
By Steven D. Schwinn

The New York Court of Appeals, New Yorkís high court, recently issued its much-anticipated ruling in its same-sex marriage case. Just like the case now percolating in the Maryland courts, that case dealt with the constitutionality of a state law restricting marriage only to opposite-sex couples, thus preventing same-sex couples from marrying. The New York high court upheld the restriction under its constitution, relying in large part on its novel interpretation of recent U.S. Supreme Court cases on fundamental rights. The problem is that its interpretation was flat wrong.

The Maryland courts, in considering our own same-sex marriage case, Deane v. Conaway, now on appeal to the Maryland Court of Special Appeals, would thus do well to ignore this flawed opinion altogether. New York courts, like Maryland and federal courts, rule on the constitutionality of state statutes based on the importance of the interest at issue and on the classification that the statute creates. When the interest involved in the statute is "fundamental," or when the statute classifies by certain characteristics, e.g., race, courts hold the statute to the most exacting requirement known to constitutional law: The statute must be narrowly tailored to meet a compelling governmental interest. This standard, "strict scrutiny," has often been described and criticized as strict in theory but fatal in fact in that state statutes reviewed under strict scrutiny are nearly always ruled unconstitutional. Thus, the New York plaintiffs in challenging the restrictive marriage statute sought to persuade the court that it should apply strict scrutiny in its review of the statute. After all, strict-scrutiny review was the most likely way the court would overturn the statutory restriction. And the clearest path to strict-scrutiny review was based on the statuteís infringement on the long recognized and deeply rooted fundamental right to marry.

But the New York Court of Appeals, in a remarkable bit of logical acrobatics, ruled that the fundamental right to marry applied, by definition, only to opposite-sex couples; that our deeply rooted "fundamental right to marry" was really only a "fundamental right to marry (someone of the opposite sex)" and not a "right to marry (anyone)." The court arrived at this conclusion by way of two relatively recent U.S. Supreme Court decisions on fundamental rights: Washington v. Glucksberg and Lawrence v. Texas.

In Glucksberg, the court ruled that there was no fundamental right to assisted suicide a narrower version of a broader "right to die" claimed by the plaintiffs and thus upheld a Washington statute outlawing assisted suicide. In Lawrence, the court ruled that there was a fundamental right to liberty a broader version of a narrower "right to homosexual sodomy" disclaimed by the defendants and thus overturned a Texas statute outlawing homosexual sodomy. The New York Court of Appeals held that these cases stood for the principle that the very definition of a right could be too broad as with the asserted "right to die" in Glucksberg, or too narrow as with the "right to homosexual sodomy" in Lawrence, and thus not fundamental at all.

The court aligned the claimed "right to marry (anyone)" with the overly broad "right to die" in Glucksberg and thus ruled that the "right to marry (anyone)" was not fundamental and therefore did not trigger strict scrutiny, even though the "right to marry (someone of the opposite sex)" was. The courtís preoccupation with definitions, however, entirely misses the point of these cases. Rather than standing for the principle that rights too broad or too narrow cannot be fundamental, these cases teach that the court will not create entirely new rights such as the right to assisted suicide in Glucksberg out of whole cloth, but that the court will read old rights such as the deeply rooted "right to liberty" in Lawrence broadly so as not to exclude whole categories of people such as gays.

When understood properly, then, the long-recognized fundamental right to marry should align with the broad right to liberty in Lawrence not the entirely new right to assisted suicide in Glucksberg and just as the right to liberty included gays in Lawrence, the right to marry should include gays here.

Even aside from its misreading of these opinions, the New York courtís ruling is deeply troubling. The effect of the ruling is to elevate definitional questions of rights to constitutional magnitude. In other words, by simply redefining a right, its constitutional protections may be significantly altered. We should all be concerned about the ramifications of this holding. For example, imagine redefining the fundamental "right to marry" to mean "the right to marry (one of the same race)." By the New York courtís reasoning, such a restriction should withstand constitutional challenge as an infringement upon a fundamental right. Yet the U.S. Supreme Court overturned exactly this definition of marriage in 1967 in Loving v. Virginia and we certainly would not stand for such a definition today. It is no answer to claim, as the court does, that race is different than sexual orientation, for it is the fundamental right to marry not the classification at issue that triggers strict scrutiny in the same-sex marriage cases.

Our courts have always spoken of the categorical "right to marry" without restriction. The New York courtís ruling makes a mockery of this categorical concept of rights, and subjects long-standing fundamental rights to the whims of whoever may happen to have the political power to define them. As the same-sex marriage case goes up on appeal in the Maryland courts, our judges should not be fooled by the New York high courtís sleight of hand with Glucksberg and Lawrence and its fast-and-loose play with fundamental rights. The New York court was wrong and the Maryland courts would do best to ignore it.

(c)2006 The Daily Record. Reprinted with Permission.

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