Broadsheet, The Blog

Two Lady Artists with Bees in Their Bonnets

06 July 2006

The New York Supreme Court Really Gets My Goat

As you may know, the New York Supreme Court issued a ruling today that the New York State Constitution does not require the state to recognize same-sex marriage. The three opinions (majority, concurring and dissenting) can be read here (click on the decision that includes #s 86, 87, 88 and 89, and the dissenting opinion rocks, btw.) The ruling as reported in the mainstream news was bad enough, but when I actually read the majority opinion it made me furious.

First let me say, as I posted on Ed Winkleman's blog earlier today, that in my opinion our society should separate the two notions of civil unions and religious marriage. The State should get out of the marriage business entirely and issue only civil unions which would confer all the rights and responsibilities we now associate with "marriage" to all willing couples. "Marriage" could then be celebrated solely within religious institutions, which may discriminate as much as they want, sad and hypocritical as I believe that is.

But given the way marriage exists in our culture today the State is being inexcusably discriminatory to disallow certain of its citizens the right to marry whom they choose. To state the obvious, I am no lawyer, but this court opinion is really worth looking at because it's written in plain language but completely sidesteps logical thinking to arrive at the decision it wants, and even kind of admits that right up front:

In deciding the validity of legislation under the Due Process Clause, courts must first inquire whether the legislation restricts the exercise of a fundamental right, one that is "deeply rooted in this Nation's history and tradition." [references to precedent court cases deleted] In this case, whether the right in question is "fundamental" depends on how it is defined. The right to marry is unquestionably a fundamental right. [references to precedent court cases deleted] The right to marry someone of the same sex, however, is not "deeply rooted," it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.
Huh? How does that follow?
You just re-defined marriage yourself!

The majority opinion goes on to rationalize limiting marriage to heteros based on the welfare of children (all emphasis mine):

There are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted… 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 [heterosexual] 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

[And later:]
A person's preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State's interest in fostering relationships that will serve children best.

This asinine reasoning led a lawyer interviewed by All Things Considered this afternoon to respond (near verbatim) “The ruling, that states that straight people can have children resulting from casual, even momentary, couplings and need to be encouraged to marry, makes it sound like gay people don’t need marriage because their children are so well planned." I might add that it sounds a bit like logic that could be used to outlaw birth control!!

The second reason stated in the majority opinion is that “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.”

Let's momentarily grant that that's true, though I really don't know. Even so there are about a million other ways to be raised that are indisputably worse than being raised by two loving committed gay parents all of which are 100% legal. And even the majority opinion admits that there is no research that supports that children don't thrive with gay parents: “What [these studies] show, at most, is that rather limited observation has detected no marked differences" between children raised in same-sex and opposite-sex households. However, I bet there's quite a bit of research to support that children don't benefit from being raised by assholes, criminals or racists, yet Rick Santorum, Tom DeLay and Trent Lott can still get married and have all the kids they want.

And the logical extension of the "undisputed" statement that marriage is primarily for the purpose of raising children and that's why the State has an interest in promoting it is this: that we should deny marriage rights to heterosexual couples who either choose not to or are unable to bear children, and should encourage gay couples who wish to have children to marry. The majority opinion momentarily acknowledges the ridiculousness of this and then offers the astounding argument that "While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing." So let me get this straight (so to speak!): The judge is saying that the only reason we can't discriminate against straight couples who can't or don't want to have kids is that it would be too hard to figure out which ones those are???

And, duh, it seems quite obvious that in our culture marriage is no longer primarily about bearing or raising children, just as it is no longer about managing property. It is primarily about love and commitment.

Oh yeah and just a few words about "stability," which the State seems desperate to encourage: Given that gays have been dismissed as sexually promiscuous for most of the past few decades, if not since the beginning of history, it is beyond ironic that when gay couples want to settle down, contribute to their communities and make families, often with children that the rest of society has discarded, they should be denied that right. It makes me sick!

One last thing: I know this has nothing to do with the actual ruling but if you're trying to protect children, you might start by physically protecting actual real live poor children from malnutrition, homelessness, miserable or nonexistent healthcare, or substandard childcare and education. Oh, but this takes actual money, which no one wants to devote to other people's children. Denying marriage to gays is a cheap way for hypocrites to feel like they have accomplished something pro-family, when really all they’ve done is promote intolerance, which as we all know is awesome for children.

There is so much more to say, but this post is long enough.

9 Comments:

Blogger That Broad said...

I commend Ms. This for sifting through the opinions and crafting an emotional yet intelligent and coherent response to yesterday's news - part of the daily shock & awe to which we are subjected. I think my mother was right (...it'll freeze that way!) my face is now permanently frozen in a look of disgusted disbelief! When we Broads discussed this post yesterday, my only concern was that it would be preaching to the converted. Nonetheless, this has helped me to clarify my own arguments in favor of legal union, particularly This Broad's delineation between marriage as a religious rite and civil union as, in fact, a civil right. Nice work.

8:19 AM  
Blogger That Broad said...

... and I'm pleased to once again be able to say: "don't blame me, I'm from Massachusetts!"

8:26 AM  
Blogger Edward_ said...

lovely, thoughful post This Broad.

It helps to read that the decision yesterday doesn't reflect the opinions of all New Yorkers. I know (ironically, because I believe in America) that one day this decision will be taught, with shame, in our schools, but it's still difficult not to feel the need to constantly look over one's shoulder when the very system that's supposed to ensure Justice for All fails us so miserably. It makes me very insecure. And, well, that just pisses me off.

You've outlined brilliantly why there's no denying that discrimination is behind such decisions (it's too obtrusive to ask heterosexual couples if they intend to have children, but it's perfectly OK to chisel into our laws the second-class citizenship of gays).

I'm still reeling from this decision actually. Bambino and I really have to consider what makes most sense for our future. I appreciate the calls from everyone for patience, but I ain't getting any younger, and well, F*CK THEM!...we deserve this. Britney Spears can marry on a whim in Los Vegas and the rest of the country has to honor it LEGALLY (until she calls it off), but my relationship is sh*t in the law's eyes? What part of their brain must they turn off to conclude that that's just?

9:49 AM  
Anonymous sucker said...

“The ruling, that states that straight people can have children resulting from casual, even momentary, couplings and need to be encouraged to marry, makes it sound like gay people don’t need marriage because their children are so well planned"

Although asinine reasoning may have led to a comment like this, the same logic can be turned around in favor of gay interests (and should). Doesn't it follow that if serious planning is involved with same sex parenting then the results are more likely to create a stable and nurturing environment with two responsible parents? I mean, think about it, compare the odds of a child having a loving, caring and supportive upbringing with these two scenarios. Scenario 1: A child is born as the result of a casual sexual encounter between heterosexuals that either never see each other again or start a relationship that neither anticipated. Scenario 2: A same sex couple decides to have a baby after months of planning and careful thought. They take deliberate steps to realize their dream.

Of course the individuals involved will ultimately determine the quality of care and upbringing. But if one follows this logic to it's conclusion, the children of same sex partners would have an initial advantage due to careful planning of and deliberation over the serious decision to have a child.

It's insane to state that "gay people don’t need marriage because their children are so well planned".
That's just stupid! What about both parents having the right to make medical decisions for their child? Discrimination of gay parents hurts their children in many ways, but the denial of full legal parental rights for gay parents doesn't make any sense at all if we are supposedly putting children first. There are so many contradictions built into anti-gay marriage logic that it makes my head spin.

The PBS program Now had a really good (and unfortunately depressing) segment on gay adoption in Florida, the only state in the union that has a complete ban on gay adoption.
The full coverage is here and it's really worthwhile reading it.

"Legislature could also find that such [heterosexual] 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."

Whatever the faulty logic behind this idea that the benefits of marriage will induce opposite sex couples to commit to each other, it doesn't follow that allowing same sex marriage will somehow jeopardize the stability of straight marriage. How does allowing gay marriage hurt straight marriage? I just don't get it. I think what is behind all of this (if we put aside for now the homophobic religious nuts) is that the people who make these laws (and the people who support them) are afraid that gay parenting yields gay children, although there is no proof of this. And this is what ultimately is believed to threaten straight society.

I could keep going but I wont. Apparently I have a bee in my bonnet too.

2:05 PM  
Blogger This Broad said...

I think what is behind all of this (if we put aside for now the homophobic religious nuts) is that the people who make these laws (and the people who support them) are afraid that gay parenting yields gay children, although there is no proof of this. And this is what ultimately is believed to threaten straight society.

Sucker, I am inclined to agree with you here. I am also at a loss as to otherwise explain the "threat" gay marriage apparently poses. The ray of hope in this would be that as more kids of gay parents grow up more or less the same as kids of hetero parents, as more people realize they already like people in their life who happen to be gay, and as Massachusetts society does not collapse, people might in time chill a bit. It seems like it definitely will happen it's just a question of how soon, and at what cost to how many in the meantime.

3:37 PM  
Blogger woman said...

This can't stand in the land for long- two people deciding to spend their lives together and have children be thee gay or the other way-the good Lord gave us science so the worry of not conceiving with your same-mate(soul-mate) can be lay aside. And we can get the to point of just creating a lovin' world where all is well. Ideal. Hopefilled.

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