New York Court Decision to Reject Ban on Same-sex Marriage
Grant Huscroft
ghuscrof at uwo.ca
Sat Feb 5 11:05:36 PST 2005
Incidentally, same-sex marriage in Canada has become established
largely by the Federal government's decision not to appeal the decision
of one provincial court of appeal (Ontario), which in essence rendered
the law of marriage unconstitutional in that province with immediate
effect. Courts in several provinces have since reached the same
conclusion, but in many of these cases this conclusion was reached
without argument to the contrary — the federal government conceding
unconstitutionality.
The debate that will be occurring in the Canadian Parliament this
Spring about changing the statutory definition of the law of marriage
to include same-sex couples is occurring against this backdrop. Should
the bill fail, the same result would obtain in any event in all of the
relevant provinces in which the common law was already held
unconstitutional.
Grant
On Feb 5, 2005, at 1:36 PM, dpinello at jjay.cuny.edu wrote:
> Paul Finkelman's analogy to the federal system is apt for New York.
> The state is divided into four judicial departments, which are
> comparable to the federal circuits. Each judicial department has a
> governing intermediate appellate court (called the Appellate
> Division), and conflicts of law can arise among them. The state's
> highest court (called the Court of Appeals) has broad discretionary
> appellate jurisdiction and can choose to resolve such conflicts or
> not, just like the U.S. Supreme Court.
>
> So it's conceivable that, should New York City decide not to appeal
> the recent decision, same-sex marriages could be validly performed in
> Manhattan (in the First Judicial Department), but not in Albany (the
> Third) or Buffalo (the Fourth).
>
> Yet I think it's likely there will be an appeal. As the Times points
> out, nominal Republican Mayor Michael Bloomberg is in a delicate
> political position on the issue. He's up for reelection in November.
> His Democratic opponents endorse the SSM decision, while prospective
> Republican primary challengers condemn it. And throughout, a large
> block of very attentive lesbian and gay voters is watching. Indeed,
> the Empire State Pride Agenda, the state's leading gay rights
> organization, has called a community meeting for Monday night in
> Manhattan to discuss the case and its political implications. I
> suspect there will be an overflow crowd.
>
> As well, conservative interest groups (such as Liberty Counsel, which
> has been very active around the country in SSM litigation) may
> petition to intervene in the New York County case to secure an appeal.
>
> Moreover, I expect that the plaintiffs' counsel, Lambda Legal Defense
> and Education Fund, hopes for an appeal as well, anticipating a
> favorable result in the Court of Appeals in light of several important
> gay rights victories there in the 1990s and in light of the favorable
> neighboring-state precedent of Massachusetts' Goodridge decision.
>
> Dan Pinello
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>
>
> --Boundary_(ID_4njnHXAcNN7oKqKRwG2MKw)
> Content-type: text/plain
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>
> How would this differ from the federal court system. Suppose the US
> Dist. Judge for Eastern PA. declares that a state law is
> unconstitutional and the state does not appeal; can the state district
> attorney in Pittsburgh prosecute someone under that law, on the grounds
> that the decision declaring it unconstitutional does not apply outside
> of the eastern district? This certainly works for the USCA. Does it
> apply for districts? And if so, would the same analogy apply to state
> law?
>
> RJLipkin at aol.com wrote:
>
>> I appreciate Paul, Dan, and Eric's helpful answers. But
>> suppose the city didn't appeal the decision. Can a status quo exist
>> where a state law is considered unconstitutional (according to the
>> state Constitution) in one district, and constitutional everywhere
>> else in the state. This question might reveal by ignorance of
>> procedure in these matters. But I'd appreciated being educated anyway.
>>
>> Bobby
>>
>> Robert Justin Lipkin
>> Professor of Law
>> Widener University School of Law
>> Delaware
>>
>> ----------------------------------------------------------------------
>> --
>>
>> _______________________________________________
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>
> --
> Paul Finkelman
> Chapman Distinguished Professor of Law
> University of Tulsa College of Law
> 3120 East 4th Place
> Tulsa, OK 74104-3189
>
> 918-631-3706 (office)
> 918-631-2194 (fax)
>
> paul-finkelman at utulsa.edu
>
>
>
>
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>
>
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> Content-type: text/html
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> X-NAIMIME-Modified: 1
>
> <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN">
> <html>
> <head>
> <title></title>
> </head>
> <body>
> How would this differ from the federal court system. Suppose the US
> Dist.
> Judge for Eastern PA. declares that a state law is unconstitutional
> and the
> state does not appeal; can the state district attorney in Pittsburgh
> prosecute
> someone under that law, on the grounds that the decision declaring it
> unconstitutional
> does not apply outside of the eastern district? This certainly
> works for
> the USCA. Does it apply for districts? And if so, would
> the same analogy
> apply to state law?<br>
> <br>
> <a class="moz-txt-link-abbreviated"
> href="mailto:RJLipkin at aol.com">RJLipkin at aol.com</a> wrote:<br>
> <blockquote type="cite" cite="mid1ea.35c8ba3d.2f365773 at aol.com">
> <meta http-equiv="Content-Type" content="text/html; ">
>
> <meta content="MSHTML 6.00.2900.2523" name="GENERATOR">
> <font id="role_document" face="Arial" color="#000000" size="2">
> <div> I appreciate
> Paul, Dan, and Eric's helpful answers. But
> suppose the city didn't appeal the decision. Can a status quo exist
> where
> a state law is considered unconstitutional (according to the state
> Constitution)
> in one district, and constitutional everywhere else in the
> state. This
> question might reveal by ignorance of procedure in these matters. But
> I'd
> appreciated being educated anyway.</div>
>
> <div> </div>
>
> <div>Bobby</div>
>
> <div> </div>
>
> <div><font lang="0" face="Arial" size="2" family="SANSSERIF"
> ptsize="10">Robert Justin Lipkin<br>
> Professor of Law<br>
> Widener University School of Law<br>
> Delaware</font></div>
> </font>
> <pre wrap="">
> <hr width="90%" size="4">
> _______________________________________________
> To post, send message to <a class="moz-txt-link-abbreviated"
> href="mailto:Conlawprof at lists.ucla.edu">Conlawprof at lists.ucla.edu</a>
> To subscribe, unsubscribe, change options, or get password, see <a
> class="moz-txt-link-freetext"
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> </blockquote>
> <br>
> <pre class="moz-signature" cols="$mailwrapcol">--
> Paul Finkelman
> Chapman Distinguished Professor of Law
> University of Tulsa College of Law
> 3120 East 4th Place
> Tulsa, OK 74104-3189
>
> 918-631-3706 (office)
> 918-631-2194 (fax)
>
> <a class="moz-txt-link-abbreviated"
> href="mailto:paul-finkelman at utulsa.edu">paul-finkelman at utulsa.edu</
> a></pre>
> <br>
>
> <DIV><P><HR>
> -----------------------------------------------------<BR>This email
> has been automatically scanned for viruses.<BR>However, it might still
> contain undetectable virus(es).<BR>Addressee should take precautions
> in opening any unsolicited emails.<BR>-- DoIT, John Jay College of
> Criminal Justice -3-
> </P></DIV>
>
> <DIV><P><HR>
> -----------------------------------------------------<BR>This email
> has been automatically scanned for viruses.<BR>However, it might still
> contain undetectable virus(es).<BR>Addressee should take precautions
> in opening any unsolicited emails.<BR>-- DoIT, John Jay College of
> Criminal Justice -3-
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> </body>
> </html>
>
> --Boundary_(ID_4njnHXAcNN7oKqKRwG2MKw)--
> _______________________________________________
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> -----------------------------------------------------
> This email has been automatically scanned for viruses.
> However, it might still contain undetectable virus(es).
> Addressee should take precautions in opening any unsolicited emails.
> -- DoIT, John Jay College of Criminal Justice -3-
>
>
> -----------------------------------------------------
> This email has been automatically scanned for viruses.
> However, it might still contain undetectable virus(es).
> Addressee should take precautions in opening any unsolicited emails.
> -- DoIT, John Jay College of Criminal Justice -3-
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
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Grant Huscroft
Faculty of Law
University of Western Ontario
London, Ontario
N6A 3K7
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