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America's Culture War

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New York and Marriage

by  Dave Miller, Ph.D.

America’s commitment to the biblical definition of marriage was recently reinforced when a New York appellate division court reversed a lower court’s ruling on same-sex marriage. The lower court judge had ordered the New York Marriage License Bureau to refrain permanently from denying marriage licenses to couples of the same sex. Judge Doris Ling-Cohan argued that to deny marriage licenses to same-sex couples is unconstitutional and discriminates on the basis of sexual orientation (Hernandez v. Robles, 2005a). In a 4 to 1 opinion, the higher court reversed the earlier ruling, pinpointing several salient issues in the process.

First, not only did the higher court find that the lower court “erred” in its ruling, it also declared:

However, we find it even more troubling that the court, upon determining the statute to be unconstitutional, proceeded to rewrite it and purportedly create a new constitutional right, an act that exceeded the court’s constitutional mandate and usurped that of the Legislature.... The power to regulate marriage lies with the Legislature, not the judiciary” (Hernandez v. Robles, 2005b, emp. added).

In other words, liberal, activist judges have no right to cram their leftist, immoral ideologies down the throats of the people of the United States who, for the time being, still retain some semblance of attachment to the Christian moral framework on which the nation was founded. The people, not the judges, are to make the laws.

Second, the court insisted: “The definition of marriage in the DRL [Domestic Relations Law—DM] expresses an important, long-recognized public policy supporting, among other things, procreation, child welfare and social stability—all legitimate state interests” (2005b, emp. added). In other words, the very fabric of the social order and the well-being of society are intimately linked to heterosexual marriage—making heterosexuality a legitimate, necessary, and critical concern of the government.

Third, the court said:

Marriage, defined as the union between one man and one woman, is based upon important public policy considerations and has been recognized as a fundamental constitutional right.... These considerations are based on innate, complementary, procreative roles, a function of biology, not mere legal rights” (2005b, emp. added).

In other words, marriage between a man and a woman is natural, i.e., compatible with the biological realm of nature, while homosexuality is unnatural and out of harmony with the created order. Therefore, heterosexuality—not homosexuality—is a fundamental constitutional right!

Fourth, the court then turned critical attention to the place of children in America:

The legislative policy rationale is that society and government have a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing. It systematically regulates heterosexual behavior, brings order to the resulting procreation and ensures a stable family structure for the rearing, education and socialization of children (2005b, emp. added).

In other words, the court recognized and accentuated the biblical concept that the rearing of children is vital and integral to the propagation of civil society.

Fifth, as if these tremendous insights were not enough, and though considered by some to be New York’s most liberal court, the majority opinion, nevertheless, waxed eloquent in its astounding grasp and acknowledgement of the very premises articulated in the Bible regarding the foundational building block of the human race:

The law assumes that a marriage will produce children and affords benefits based on that assumption. It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depend on a healthy marriage culture for this latter, critical, but presently undervalued, benefit. Marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society, and such preference constitutes a rational policy decision. Thus, society and government have reasonable, important interests in encouraging heterosexual couples to accept the recognition and regulation of marriage (2005b, emp. added).

Wow! Heterosexual marriage brings cohesion and stability to the whole society. Aberrant sexual behavior (i.e., homosexuality) at the very least is selfish in its inherent disregard for children—the very means by which culture is sustained. The government, therefore, has a vested interest in propagating heterosexuality and discouraging homosexuality.

Amid an otherwise mostly bleak moral landscape, occasional rays of hope shine forth from unexpected places. Kudos to the justices who demonstrated such keen insight into the social order. The very survival of the nation is at stake.


Hernandez v. Robles (2005a), Supreme Court, New York County, 2005 NY Slip Op 25057, February 4, [On-line], URL:

Hernandez v. Robles (2005b), Supreme Court, Appellate Division, First Judicial Department, 2005 NY Slip Op 09436, December 8, [On-line], URL:

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