This morning’s New York Times has me on the edge of my seat when it reports that New York’s highest court will rule on the constitutionality of same-sex marriage in the state.
The case is a consolidation of lawsuits including Hernandez v. Robles in which, after five couples sued New York City’s clerk for refusing them marriage licenses, the State Supreme Court ruled that New York’s marriage laws violated the constitutional rights of these couples. That decision was overturned in the l division after Mayor Bloomberg — who says he supports same-sex marriage, forced an appeal.
While awaiting an announcement about the decision, I am, as I always am, struck by how the arguments against same-sex marriage were framed in the article. For example, Anemona Hartocollis, the reporter who wrote the article, quotes a “friend of the court” brief as claiming that same-sex couples should be denied marriage rights not because of “animus towards gay and lesbians,” but because “only opposite-sex unions can both create the next generation and connect those children to the mother and father who made them.” (This echoes the rationale of the Appellate division court, which was quoted in the Times story as arguing that “marriage between biological parents is ‘the optimal situation for child-rearing.'”)
A different argument made in a friend of the court brief by James Q. Wilson, offers a non-religious claim for why marriage should be procreative. Hartocollis reports his claim that “as the connection between marriage and procreation weakens, communities face higher rates of poverty, crime, welfare dependency, child abuse, unwed teenage motherhood, education failures and other social problems.”
Adoption, divorce, child-free heterosexual marriages, extended family households and many other widely accepted arrangements would seem to undermine the argument that same-sex couples should not have the right to marry because they cannot, together and unassisted by outside parties, produce offspring. Many people in same-sex relationships bring with them children from previous relationships. If a divorced parent can remarry a partner of the “opposite sex” (I’ll save my ‘there is no opposite sex’ argument for another time) why can’t she marry one of the same sex? If a heterosexual couple can adopt, and at least in some states same-sex couples can also adopt, why can’t they marry as well?
As for Wilson’s claim that as marriage and procreation become increasingly distinct we see a host of social problems arise, I wonder if he will also argue for the criminalization of contraception? Would he go so far as to suggest that all couples, in order to obtain marriage licenses, promise to reproduce? What other social phenomena might be stronger correlates to the problems he lists? Growing class inequality perhaps? Strained and underfunded education systems?
There are enough couples willing to reproduce and enough immigrants wanting to contribute to this country that we needn’t have the kinds of concerns over population growth that some of the most industrialized nations are facing. Instead we should direct our attention instead to preserving civil rights and making sure that all our brothers and sisters are equally protected by the law. Canada, Spain, Belgium and the Netherlands all allow same-sex couples to marry. This is in sharp contrast to the United States where only one state currently allows marriage for same-sex couples, one allows for a parallel institution (civil unions) that is separate and may or may not be entirely equal, and where more than 40 have passed “Defense of Marriage” acts and nearly 20 have amended their state constitutions to explicitly bar same-sex couples from marrying!
I have my fingers crossed that later today or tomorrow I will read that New York has joined Massachusetts in explicitly defining and protecting the right to marriage for all couples. (Then we can work at disentangling things like health care from marriage to get to some truly rational social policy!)