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Hernandez v. Robles now decided

The New York Court of Appeals (equivalent of the Supreme Court for New York) has now decided Hernandez v. Robles in favor of the defendants. Hence,the New York constitution doesn't require same-sex marriage. The decision was a narrow 4-2, with Judge Smith writing the opinion of the court, Judge Graffeo penning a concurrence and Chief Judge Kaye filing a dissent that at times seems almost Scaliesque in its vehemence.

There's little in the way of new arguments. Anyone who's been following the debate at all over the last few years will find the back-and-forth familiar, almost comforting. And yet the final comments of the key opinions stand out. In dissent, Chief Judge Kaye closes with:

I am confident that future generations will look back on today's decision as an unfortunate misstep.

To which Judge Smith replies:
We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives.

It is a quaint idea, that. Chesterton remarked approvingly that tradition was the "democracy of the dead." But what should one call the democracy of Chief Judge Kaye? Perhaps precognition is the democracy of the unborn.

UPDATE: In case anyone was confused by my writing that this was a 3-2 opinion, I apologize for the error. I somehow combined Judges G. B. Smith and R. S. Smith into one SuperJudge™.

Also, the Supreme Court of Georgia today reinstated the ban on gay marriage in the Georgia constitution. (Hat tip How Appealing.)


If the constitution did require gay marriage would you have had to find a nice young man to shack up with? Or would you have fled the state rather than be forced into government imposed matrimony?
Since I left the state immediately after graduation and am no longer a resident there, you might say that I fled pre-emptively. ;) OK, OK, I meant "require the state to recognize. . . ."

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