Demagogue

The New York marriage equality case that Zoe posted about is going straight to the state's highest court, bypassing the intermediate appellate court. I suspect the briefing schedule will be a bit extended, since both sides will presumably be dealing with lots of amici curiae ("friends of the court") who want to file briefs in their support. And the decision will presumably take a bit longer to write than a routine affirmance of a criminal conviction. But from my admittedly limited experience with the New York Court of Appeals, I'd say we've got a good shot at having a decision before the end of 2005.

Zoe explained her lack of ecstatic delight at the trial court's ruling in favor of the couple, and I chipped in on a similar theme in the comments. But however you feel about this kind of litigation as a tactical matter, and whatever you think about the legal merits, this decision will make at least a minor splash whichever way it comes down.

So how will it come down? It's hard to say (gee, that's helpful, Arnold). The court is now mostly appointees of Republican Gov. George Pataki. But Pataki is what we used to call a moderate on social issues, and his judicial appointments have not reflected a social conservative agenda. To the extent the picks are policy-driven--and I think they have not been nearly to the same extent as federal appellate appointments--the policies are basically business-friendly. At least a couple of the judges on the court are ex-partners of big NYC corporate firms, which is an economically centrist or conservative constituency but rather tolerant on the social front. In other words, most of the judges on the court are ciphers when it comes to this issue. I wouldn't be surprised to see Kaye conclude that the law is unconstitutional, nor for the majority to agree; but, then again, I wouldn't be surprised to see the law upheld 7-0. I really have very little feel for this one.

The court also has a different tone and style from most federal appeals courts. The Chief Judge, Judith Kaye, has fostered an atmosphere of harmony and consensus. Although there are seven judges, unanimous decisions are the norm and separate opinions rare. The practice in the court is also fairly genteel; harsh rhetoric won't get you far there, and you won't find it in the court's opinions. It will be interesting to see whether this divisive subject will produce a split decision and how heated the opinions will be if it does. Remember, the Massachusetts SJC split 4-3 in Goodridge, and even the majority bloc was split over how to analyze the case. In Vermont, the five-judge court was unanimous in finding the existing law unconstitutional; the only disagreement was between the majority who decided to let the legislature have the first crack at fixing it via civil union legislation and the dissenter(s) (can't remember if it was one or two) who said the plaintiffs were entitled to a marriage license.

It will also be interesting to see how New York AG Eliot Spitzer handles the case. The appeal has been brought by the New York City Law Department, which shows that even a Sodom with a homo-friendly mayor can attempt to defend the status quo. Spitzer, though, is a Democrat who clearly has higher ambitions (do I recall that his run for governor is now official?). I don't know that his office has to take a position in the case, though it would be odd for him to stay mum in a case of such importance that turns on the validity of state law. Ordinarily, the AG defends state laws, even if he personally thinks they're wrong; but Spitzer has made clear that, like some other state AGs, there are instances in which a law is so clearly unconstitutional in his view that he will not defend it.

Stay tuned. Maybe this one will come down just in time to generate some heat before the 2006 midterm elections.