Analysis: 2 rulings on gay marriage: no federal issues

Two decisions by state supreme courts on Thursday set back the legal campaign to win the right to marry for same-sex couples. But neither of the rulings appears to have been based on federal law, so there appears to be nothing in them that the Supreme Court would be likely to review.

Both rulings — a sweeping rejection of gay marriage in New York State, and a narrower decision to uphold a gay marriage ban in Georgia — were based entirely on state law grounds. Unless such foundations themselves pose federal constitutional issues, they are immune to second-guessing by the Supreme Court.

The New York Court of Appeals (that state’s highest court) issued a split, 4-2 ruling (one judge did not participate) in four consolidated cases on Thursday, in a much-anticipated development with symbolic and legal importance to both sides in the courthouse wars over same-sex marriage. (The lead case was Hernandez v. Robles, docket 86; the text of the plurality, concurring and dissenting opinions can be found here.)

In their appeals, lawyers for the same-sex couples seeking the right to marry raised three issues, and all three were confined to the New York state Constitution.

Both the plurality and concurring opinions, if read somewhat casually, appear to be declarations on questions under the U.S. Constitution’s due process and equal protection clauses (in the Fourteenth Amendment). But the language borrowed from a string of Supreme Court rulings, and extrapolations from that language, are used entirely to express the views of the state court in interpreting due process and equal protection guarantees under the New York state Constitution. For example, Judge Robert S. Smith’s plurality opinion, supported by two other judges, begins with this declaration: “We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.” Everything after that seeks to explain that holding.

There is one small hint of a federal question in Judge Smith’s opinion. Judge Smith writes, without elaboration: “…we reject defendants’ argument that the Supreme Court’s ruling without opinion in Baker v. Nelson (409 US 810 [1972]) bars us from considering plaintiffs’ equal protection claims.” The Baker ruling is a summary decision of the Supreme Court, dismissing “for want of a substantial federal question” a Minnesota Supreme Court decision upholding against a federal constitutional challenge a state law limiting marriage to opposite-sex couples. Foes of gay marriage regularly cite that brief order in their argument that the Supreme Court already has settled any federal constitutional issues in this field.

The concurring opinion of Judge Victoria A. Graffeo, supported by one of the judges who joined the Smith plurality, concludes by saying that “the New York Constitution does not compel…a revision of the Domestic Relations Law,” which the state court interprets as limiting marriage to a man and a woman. Everything that precedes that conclusion, while heavy with federal citations, is keyed to the state law ground of her views.

Chief Judge Judith S. Kaye’s dissenting opinion, joined by another judge, seems designed to raise serious federal constitutional issues about the validity of the Domestic Relations Law as the majority interprets it, but even if it does succeed at that, it very likely does not provide a basis for seeking Supreme Court review of Judge Kaye’s colleagues’ judgment.

Moreover, the strategy of many of those involved in the campaign to achieve legal recognition for same-sex marriage is predicated, so far, on pressing the issue in state courts under state law. That explains the decision to limit the New York cases, for example, to state law issues. There may be little interest in trying to get the Supreme Court involved at this stage in cases that may actually be no more than interpretations of state law.

The Georgia decision that emerged shortly after the New York ruling on Thursday was in the case of Perdue v. O’Kelley, et al. (S06A1574); it can be found here. The state court, without dissent, ruled that a state constitutional amendment approved by the voters in 2004 was valid. (The text of that amendment is included on the first page of the opinion.) Its decision was confined to the sole question, under state law, of whether the language of the amendment incorporated more than one issue. The Georgia constiutiton forbids multiple-subject amendments. A trial judge in the state had found that the amendment’s text violated that rule. Reversing, the state Supreme Court said: “The correctness of that [trial court] ruling is the only issue to be decided by this Court in this case.”

Thus, there is not even a hint of a federal question in that particular decision.