Understanding the New York Marriage Decision

I finally read the whole decision of the New York Court of Appeals in that state's case challenging the constitutionality of denying same-sex couples the right to marray. (NOTE: New York, unlike most states, calls their highest court the "Court of Appeals" and not the "Supreme Court" -- the New York Supreme Court is a lower court -- go figure....) In the decision (which was 4-2, with a strong dissent by the Chief Justice), the Court found that denying same-sex couples the right to marry does not violate the New York Constitution. This ruling, while disappointing to those of us who support marriage equality, is not in and of itself shocking -- so far, only two courts have found a right for same-sex couples to marry in their state constitutions: Hawaii and Massachusetts. What is shocking is the reasoning relied on by the majority. Because I cannot do the decision justice by paraphrasing, I quote: "[T]here are at least two grounds that rationally support the limitation on marriage [to only different-sex couples] ... both of which are derived from the undisputed assumption that marriage is important to the welfare of children. "First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not.... "The Legislature could also find that such [opposite-sex] relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born.... "The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex create a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more." Excuse me -- this is now Deborah Wald talking -- but did the highest court of New York just say that because heterosexual couples become parents by "accident or impulse" and lesbian and gay couples do not, this provides a rationale basis to only allow heterosexual couples to marry? Do children born to couples who actually planned for them -- be they gay couples or straight couples -- deserve less protection than children born by happenstance? Am I missing something here??? Anyway, to continue: "There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like...." [And we all know that children only are exposed to their parents on a daily basis -- there are no other significant adults in their lives. No teachers. No coaches. No aunts or uncles or close family friends. Oops, sorry, back to the decision....] "Plaintiffs ... 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.... "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 a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households." Okay, here we go again: is the court actually saying that even if there is no evidence to support the premise that children do better in homes with parents of different sexes than in homes with parents of the same sex, the Legislature still could make this [apparently false] assumption the basis for discriminating against same-sex couples based on the legislators's own, personal, "intuition and experience" -- their personal "common-sense" judgments?? Is this really the highest court of New York expounding on their Constitution and its meaning to the citizenry?? And these are the ONLY bases provided by the court to support marriage discrimination: the Legislature could find that the fact that heterosexual couples are more likely to have children by mistake makes marriage more critical as a method of stabilizing heterosexual relationships than homosexual relationships; and the Legislature could find that children do better with a mom and a dad, even if there is no scientific basis for this view. Excuse me, but I am offended, not just on behalf of my own family but on behalf of responsible heterosexual couples who plan and provide for their children. For the highest court of New York to make heterosexual irresponsibility the basis for marriage discrimination is, quite frankly, offensive. 'Nuf said. The dissent makes an excellent parallel, which reminds me of a discussion I had with my students at the University of San Francisco School of Law about the difference between Bowers v. Hardwick (finding anti-sodomy statutes constitutional) and Lawrence v. Texas (overruling Bowers 7 years later). In Bowers, decided in 1986, the U.S. Supreme Court posed the constitutional question as whether the United States Constitution conferred a "fundamental right upon homosexuals to engage in sodomy." Put this way, there was little doubt that the answer would be a resounding NO. But seven years later, when the Supreme Court reconsidered the same issue in Lawrence, they framed the question completely differently. The question considered by the Lawrence court was whether the fundamental right to engage in private, consensual sexual conduct applied equally to both homosexuals and heterosexuals. Put in those terms, it was easy for the Court to find it unconstitutional to criminalize the private, sexual behavior of gay people. Similarly, the New York Court of Appeals has framed the marriage issue as whether the State of New York has a rational basis for supporting opposite-sex marriages -- which it obviously does -- rather than whether there is a rational basis for excluding same-sex couples from the institution of marriage. As stated by the Chief Justice of the Court of Appeals in her dissent: "[W]hile encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone." The Chief Justice goes on: "The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare...." So there you have it. An appallingly simplistic decision by the highest court of New York, with an impressively coherent dissent by the Chief Justice which is well worth reading for those of you who are still hungry for details after this long blog posting. It took seven years for the United States Supreme Court to overrule Bowers v. Hardwick, declaring that "Bowers was not correct when it was decided, and it is not correct today." How long will it take for the State of New York to admit that it is unconstitutional in this day and age to discriminate against families -- and children -- based on the gender of the partners? I guess we'll have to wait and see....