So, is the appointment of Jeff Sessions by Donald Trump wrong, but of Robert Mulvey by New York Governor Cuomo right? On the fundamental right of a homosexual to marry a heterosexual

The press continues to raise questions about Donald Trump's picks for office.

For example, the press claimed that Jeff Sessions, Donald Trump's pick for U.S. Attorney General, tried to stop a meeting of homosexual community in 1996 on college campus.

Specifically, in 1996 Sessions reportedly "attempted to stop the Southeastern Lesbian, Gay, Bisexual College Conference from meeting at the University of Alabama under a state law passed in 1992 that made it illegal for public universities to fund in any way a group that promotes "actions prohibited by the sodomy and sexual misconduct laws."

Once again, it was in 1996.

Homosexual sex was de-criminalized by the U.S. Supreme Court through Lawrence v Texas only in 2003, 7 years after that date.

If, formally, homosexual sex was a crime at that time in Alabama, as it was in Texas and other parts of the country, formally, a state public official had not only a right, but also a duty to try and prevent a potential criminal activity from happening.

What I do not see the press doing though, is expressing concerns about appointment of an anti-gay judge, Robert C. Mulvey,

to "serve", first, as a Chief Administrative Judge of a huge 6th Judicial District in upstate New York, and then to be promoted to the Appellate Division 3rd Judicial Department.

Yet, Judge Mulvey did the same - or worse - than Jeff Sessions in regards to LGBT community, and I do not see New York State media screaming at Governor Cuomo's appointment of a radically anti-gay judge to the Appellate Division in March of this year.


In 2002, the New York State Assembly passed a legislation, Sexual Orientation Non-Discrimination Act (SONDA), prohibiting "discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights".  The legislation went into effect in January of 2003.

In June of 2003, the U.S. Supreme Court de-criminalized homosexual sex through Lawrence v Texas.

The right to marry is a well acknowledged, fundamental, civil right.

In 2005 in New York, there was a federal, U.S. Supreme Court, precedent decriminalizing homosexual sex, and a state legislation prohibiting civil rights discrimination against same sex couples.

Yet, in that same 2005, Mulvey has reportedly ruled against 25 same sex couples seeking to marry on the following grounds:

1. lack of standing - Mulvey claimed that city clerks lack standing to demand permission to register same sex marriages, as they have no personal stakes in the matter.  Yet, the example of Kim Davis out of Kentucky who was sued, and went to federal prison, for failing to issue same sex marriages, show personal stakes of public officials who refuse to do their duty;
2. New York Domestic Relations Law - Mulvey rejected the claim that the language New York Domestic Relations Law is gender-neutral, because "other sections" of New York law "clearly contemplate" a union between a man and a woman;
3. Equal protection under the New York State Constitution - Mulvey claimed that he is "bound by appellate precedent" from 1992 (without mentioning the later legislation, SONDA, introduced in 2003, which overruled that "precedent");  Mulvey ruled that "plaintiffs failed to meet their burden of showing “that the Legislature was irrational in recognizing what is considered a unique and distinct social benefit derived from heterosexual marriage, to wit: natural procreation and child-rearing.” At that same time, that same Legislature already passed SONDA, which Mulvey simply chose to ignore.
4. Due process under the New York State Constitution - Mulvey found that a state's denial of a right to marry to homosexual couples does not constitute a violation of their fundamental constitutional right to marry under either the state or the federal Constitution.

By the way, Judge Mulvey made the following claim in that case:

"Although it is clear that the plaintiffs have a fundamental right to enter into opposite-sex marriages they do not have an equivalent right to enter into same-sex marriages.  The Court finds that civil marriage of same-sex couples is not a fundamental right under either the New York Constitution (Article 1, Section 6) or the United States Constitution (14th amendment). " 

So, in Judge Muvley's view, same-sex orientation is just a whim, so, individuals with homosexual orientation could just as well drop their nonsense, change their orientation, marry individuals of opposing sex, and we can all happily go home.

Of course, in 2006, the New York State Court of Appeals overruled an opposite decision, claiming that denying marriage licenses to same sex couples is unconstitutional under the State Constitution, and affirmed Judge Mulvey's anti-gay ruling by a New York City judge.

Mulvey concluded his reasoning in denying same-sex couples a right to marry this way:

"The decision to extend any or all of the benefits associated with marriage is a task for the Legislature, not the courts.   Social perceptions of same-sex civil contracts may change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.  Lawrence v. Texas, 539 U.S. 558, 603, 123 S.Ct. 2472, 156 L.Ed.2d 508, (Scalia, dissenting) (2003) If that day comes, it is within the province of the Legislature to so act."

Yet, by the time Mulvey ruled this way, "that day" already came - New York State Legislature has already passed an anti-discrimination statute, SONDA, 3 years prior.

Yet, Mulvey ducked the issue, never mentioned SONDA in the entire decision, and pretended that homosexuals could just as well change their orientation in order to marry people of the opposite sex ("Although it is clear that the plaintiffs have a fundamental right to enter into opposite-sex marriages they do not have an equivalent right to enter into same-sex marriages.").

Thus, the only fundamental right to marry for a homosexual person that Mulvey found, in 2005, despite the existing anti-discrimination legislation on the books of the State of New York, was a fundamental right to marry an individual of the opposite sex.

And, that judge was repeatedly promoted, including, as of this year, by the New York State Governor Andrew Cuomo, who is trying to badmouth appointments by the new president-elect and wage "anti-hate" campaigns.

And, I did not and do not see any media frenzy against the appointment by Governor Cuomo to the intermediate appellate court, the court where most of appeals in the State of New York are decided, of a judge who preferred to defy the State anti-discrimination legislation protecting gay couples, in order to promote his own agenda, and to sermonize, through his court decision, that same sex couples do have a fundamental right to marry - somebody else, of opposing sex.

And that, ladies and gentlemen, is disgusting - both as to Mulvey's sermonizing, and to Cuomo's and the media's hypocrisy.