Excellent news today for gay rights in the States! First, an appellate judge in New York has ruled that the state must recognise marriages performed in Canada between two people of the same sex. Excellent news for both Canadians in America and American gays who came up here to get married when Canada legalized gay marriage earlier this decade. Of course, the judgment recognises that a law might eventually be passed that would deny recognition to those marriages, but until such a law is on the books the marriages must be legally recognised in New York. This is a terrific victory, because it marks the first time any entity at the Federal level in the United States has afforded recognition in this kind of situation.
Second, and more legally interesting, a judge in Oregon has thrown out a lawsuit challenging a law passed by the legislature last year allowing the official recognition of domestic partnerships, allowing the law to come into effect immediately. The point being argued in court was whether or not one has a constitutional right, if one signs a petition, to have that signature officially tabulated. There had been a petition circulating in Oregon to put a referendum before the voters to ban any other form of union between two people of the same sex (read: gay marriage), but it barely did not receive enough signatures to appear on the ballot. The judge concluded that it is not a constitutional right to have one’s signature counted on a petition, which sounds like a counterintuitive position, but it is very soundly argued in the (surprisingly readable and understandable) ruling (PDF). Here’s the interesting bit from the ruling (pages 15–16):
I believe the State, through a variety of sources, has demonstrated to the average signer of a petition that it’s not making any promise that your signature ultimately will be counted. Some of those we’ve talked about. Some have to do with the fact that when you sign a petition, there are any number of ways in which your petition may never see again the light of day.
Now, admittedly, some of the most common of those have nothing to do with anybody acting on behalf of the State. The chief petitioner can simply give up and go home or raise some question in his or her own mind about a particular sheet and throw that sheet away just to save themselves the trouble of a challenge later. There are any number of ways when you sign a petition that you have no reasonable expectation that the State is promising it will make it all the way to home plate. …
If you’ll forgive kind of a folksy example, if one of my kids claims I promised them a Lamborghini when they graduated from high school, the fact that I cannot do so is some evidence that I never promised I would. And if the State is being said to have promised something that would be extraordinarily difficult to do, that’s some evidence, in my view, that it never promised it in the first place; it’s not within the original entitlement.
Legally, at least from the point of view of the common law, impossibility excuses a party from failing to fulfil a contract. But there was no contract here; the specific objection raised by the plaintiffs is that the state denied due process to those people who signed the petition expecting their signatures to count, and in doing so violated the Fifth Amendment to the U.S. Constitution. However, the ruling found that the state never created the entitlement to having their signatures counted in the first place.
The upshot is that gay people can now go ahead and register their domestic partnerships in Oregon and receive many (but not yet all) of the benefits conferred by marriage in other situations. Thank goodness for two happy outcomes to cap off the week.
