Well, I’m breathing but angry and yet perversely amused by the New York State Court of appeals ruling that finds denying same-sex couples the right to marry does not violate their rights to due process and equal protection, and that puts the decision about same-sex marriage in the hands of the state legislature. Here is a link to the PDF file containing the decision:
What I find so ironic is that the court agrees that marriage confers special rights (which same-sex couples are being denied):
The diligence of counsel has identified 316 such benefits in New York law, of which it is enough to summarize some of the most important: Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions.
In order to decide whether or not it is constitutional to deny those rights it asks “whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples.”
The court comes to the conclusion that yes, in fact a rational legislature could decide that these benefits should be given to members of opposite-sex couples but not same sex couples for two reasons both having to do with — you guessed it — children. But the first reason is the one that I’m perversely amused by because it seems to argue that opposite-sex couples could be privileged under the law in this way because they are less responsible when it comes to children, less committed to having them only intentionally, and more prone to accidental conception. I’m going to quote at length here:
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. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such 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. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.
They go on to argue that same-sex couples do not need these inducements because they tend to have children through adoption or other consciously-chosen means, and thus are, through their conscious action, demonstrating a commitment to raising children even without the inducements and protections of marriage, so obviously they don’t need the incentives of those 319 rights and privileges that opposite-sex couples apparently need in order to be coaxed into forming stable homes.
From that point the decision goes downhill fast. The court argues that the legislature could also rationally restrict access to marriage to opposite-sex couples because “intuition and experience” suggest that children do best when they have living models of what men and women are like. Now, it seems to me that unless the children are locked in the house on most days, they will see plenty of men and women and in fact the more time they spend out of the house the more different models they’ll see and the better off they’ll be. Since there is no guarantee that the “models” of “manhood” or “womanhood” they will have in their homes will be positive and healthy ones, I don’t see the logic in offering privileges to people who form households that provide them. Unless of course the state wants to define positive models for men and women, enshrine them into the marriage laws, only extend marriage rights to those who vow to live by them, and then enforce those laws by dissolving the marriages of those who deviate.
I’m sure there will be lots of deconstructing of this decision in the coming days. For now I have two things to say:
1. Condoms and sex ed for heterosexuals! Then maybe nobody will “need” marriage as an incentive.
2. Let the kids go out more often. They’ll see plenty of role models!