The highest state court in New York turned back an attempt to force the Empire State to recognize same-sex marriage via judicial fiat, ruling that the issue belongs to the legislature and not the courts:

New York's highest court today turned back an attempt by gay and lesbian couples to win equal treatment under New York State's marriage law, saying that the state constitution "does not compel recognition of marriages between members of the same sex." ...

The majority opinion agreed with lawyers for New York City and New York State that there was a rational basis — grounded in the stability of the family as a child-rearing institution — for limiting marriage to a union of one man and one woman.

But it left open the possibility that the state Legislature could decide to allow same-sex marriages.

"We hold that the New York Constitution does not compel recognition of marriages between members of the same sex," Judge Robert S. Smith wrote in the majority decision. "Whether such marriages should be recognized is a question to be addressed by the Legislature."

That path has always existed for advocates of gender-neutral marriage. The efforts of plaintiffs to sue their way to public policy changes undermines the fabric of representative democracy, and the decision by this court restores some badly-needed common sense to the controversy. Lawsuits such as these threaten to diminish government by the people and replace it with government by unelected and unaccountable star chambers. The pursuit of public policy changes through lawsuits usually reflects the lack of support for the plaintiff's viewpoint, and when successful almost by definition results in the imposition of de facto law that is unsupported by popular sentiment.

As I have written before, I have no particular animus against gay marriage. However, it should only be adopted as public policy through the legislature. Despite the rhetoric involved, a lack of public recognition of gay relationships through the mechanism of civil marriage does not put the government into our bedrooms. In fact, the demand for civil marriage forces government into our bedrooms. We do not ban homosexual relationships; we simply choose not to give them official recognition. That decision belongs to the legislatures or to the people via referendums, and not to judges.

The ball, therefore, goes back to the New York legislature. The plaintiffs here cannot appeal this decision further as they raised no federal issues. Gender-neutral marriage advocates have to return to the difficult but necessary task of building popular support for their position rather than hope for a judicial diktat shortcut.

UPDATE: The highest court in New York is the Court of Appeals, not the Supreme Court, which is an intermediate court. Thanks to the many readers who noted the error.

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