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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  July 7, 2006
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Topic category:  Other/General

Preserving Traditional Marriage Requires Strict Constructionist Judges
(and People Who Will Nominate and Confirm Them)

Good News: On July 6, 2006, the highest courts in New York and Georgia issued traditional marriage-friendly decisions.

Good News: On July 6, 2006, the highest courts in New York and Georgia issued traditional marriage-friendly decisions. The New York court refused, 4 to 2, to read a gay marriage right into New York's Constitution (New York's marriage law limits marriage to a man and a woman), and the Georgia court unanimously reversed a decision setting aside an overwhelmingly passed state constitutional amendment rejecting both gay marriage and civil unions on the ground that there should have been two separate amendments.

Bad News: Although the Georgia decision was unanimous, traditional marriage was supported by only 4 of the 7 judges on New York's highest court (as the third term of a Governor (George Pataki) who ran and won with the Republican and Conservative nominations and has been nominating judges to that court is nearing an end and a secular extremist (Eliot Spitzer) is expected to win the New York governorship as the Democrat and Liberal nominee and surely will nominate pro-gay marriage, pro-abortion judicial activists if he does

Lesson: Preserving tradition marriage requires strict constructionists judges, and, since strict constructionist judges are appointed and confirmed by Republican/Conservatives, not Democrat/Liberals, Republican/Conservative Governors and Legislators.

As usual, the Far Left, frustrated by the opposition of a substantial majority of the people to an item on its extremist agenda and utterly disdainful of both their traditional beliefs and the concept of majority rule, tried to have the judiciary impose its extreme agenda, in this case the treatment of gay marriage as a constitutional right, even though there is absolutely no historical support for that position and the creation of such a constitutional right by the judiciary would be an egregious (and unconstitutional) abuse of judicial power.

The majority affirmed the appellate court decision in four cases (Hernandez v. Robles, Samuels v. New York State Health Department, Matter of Kane v. Marsolais and Seymour v. Holcomb, presenting the same issue. Judge Robert Smith, for the majority, wrote: "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." Governor Pataki's Health Department and New York Attorney General Eliot Spitzer's office had argued that New York law prohibits issuing marriage licenses to same-sex couples. Governor Pataki believes that the law should not be changed and praised the majority decision as right, but gubernatorial aspirant Sptizer favors change and would appoint the kind of judges who would take it upon themselves to impose that change.

Chillingly, New York's activist Chief Judge (Judith Kaye) criticized the majority for failing to uphold its responsibility to correct inequalities, insisting that the Legislature should not decide what is and is not marriage: "It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today's decision as an unfortunate misstep."

Of course, there is nothing to support the proposition that New York's Constitution ever was intended to create a gay marriage right and Chief Judge Kaye's dissent was nothing more than a cry for her Court to revise that Constitution by judicial decision.

Judge Albert Rosenblatt, whose daughter has advocated for same-sex couples in California, did not take part in the decision.

The majority opinion was clear, compelling and constitutional: "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."

The inane invitation to pretend that New York statutory law permitted same-sex marriage was flatly rejected:

"Some amici...suggest that the statute can be read to permit same-sex marriage, thus mooting the constitutional issues. We find this suggestion untenable.

"Articles 2 and 3 of the Domestic Relations Law, which govern marriage, nowhere say in so many words that only people of different sexes may marry each other, but that was the universal understanding when Articles 2 and 3 were adopted in 1909, an understanding reflected in several statutes. Domestic Relations Law 12 provides that 'the parties must solemnly declare . . . that they take each other as husband and wife.' Domestic Relations Law 15 (a) requires town and city clerks to obtain specified information from 'the groom' and 'the bride.' Domestic Relations Law 5 prohibits certain marriages as incestuous, specifying opposite-sex combinations (brother and sister, uncle and niece, aunt and nephew), but not same-sex combinations. Domestic Relations Law 50 says that the property of 'a married woman . . . shall not be subject to her husband's control.'

"New York's statutory law clearly limits marriage to opposite-sex couples."

Likewise, the same-sex marriage as a state constitutional right under the state due process and equal protection clauses claim was rejected as ridiculous:

The majority insisted that the Legislature was entitled to make such determinations: "Plaintiffs, and amici supporting them, argue that the proposition asserted is simply untrue: that a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex. Perhaps they are right, but the Legislature could rationally think otherwise."

The majority concluded that the Legislature could rely upon...common sense!: "Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common sense premise that children will do best with a mother and father in the home."

And the majority refused to brand traditional marriage supporters as bigots:

Since there is "a rational basis for limiting marriage to opposite-sex couples", "that limitation is valid under the New York Due Process and Equal Protection Clauses, and that any expansion of the traditional definition of marriage should come from the Legislature."

"Today's decision refuses to recognize that gay and lesbian New Yorkers and their families are full citizens of this state. But this struggle is far from over," said Susan Sommer, Senior Counsel at Lambda Legal and lead attorney on Hernandez v. Robles.

Of that, we can be sure.

And the danger in New York is far more imminent than in Georgia, where the Georgia Supreme Court unanimously upheld the statewide vote of the people, who in November of 2004, by a margin of 77%, overwhelmingly passed an amendment to the state constitution protecting marriage as the union of one man and one woman.

Anita L. Staver, President of pro-traditional marriage Liberty Counsel, stated: "When the people of Georgia went to the polls, they spoke loudly and clearly in favor of marriage as one man and one woman. When groups pushing the homosexual agenda fail to win at the ballot box, they try to undermine democracy by using the courts to eliminate the voice of the people. Aggressive use of the courts to undermine marriage has backfired on the same-sex marriage movement. Recent efforts to challenge constitutional amendments will also backfire. The people of America are not about to idly stand by and watch marriage go up in smoke. Natural marriage between one man and one woman is best for our families, our children, and our communities."

In Georgia, traditional marriage is safe. In New York, however, despite the decision, traditional marriage is imperiled and the 2006 election is critical. Candidates who support gay marriage, especially Spitzer, the likely Democrat/Liberal gubernatorial candidate, should be rejected by all who want to protect traditional marriage.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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Copyright 2006 by Michael J. Gaynor
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