New York State Marriage Ruling: Further Details

The New York Court of Appeals today offered two main “rational” reasons why the Legislature could refuse to recognize same-sex marriage:

• Because opposite-sex couples can become parents as a result of accident or impulse, the state could find that “promoting stability in opposite-sex relationships will help children more.”
• The state could also find “that it is better, other things being equal, for children to grow up with both a mother and a father.”

It’s interesting that the first argument is that opposite-sex relationships are more unstable and more likely to harm children without state support, while the second is that same-sex relationships are more harmful. The difference, of course, is that the first argument does not, as I read it, offer any real reason not to extend marriage benefits to same-sex couples as well, even if opposite-sex couples need the stability more. (In this sense, if nothing else, it seems a specious argument, included to give the appearance of impartiality towards both opposite- and same-sex parents.) The second argument is the insidious one, however, for it clearly says that the state could view same-sex couples as inappropriate parents, and thus undeserving of marital benefits.

I’ve observed that sometimes people reduce their political activism when they become parents. It’s a matter of time, if nothing else. Parenthood is now squarely at the heart of the New York marriage debate, however, and will likely appear in other states’ rulings as well. We cannot afford to sit back on this one. While I don’t want Mombian to become an exclusively political blog, I will keep you informed of events and actions in the coming months that will benefit from the participation of LGBT families. (On a related note, child-free opposite-sex couples should feel equally insulted by this type of ruling, and may become strong allies as well.)

Below is a lengthy excerpt from today’s ruling. Read it if you want to see the entire passage about child-raising and marriage. (The full PDF also contains the dissenting opinions.)

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature. . . .

The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples. The question is not, we emphasize, whether the Legislature must or should continue to limit marriage in this way; of course the Legislature may (subject to the effect of the Federal Defense of Marriage Act, Pub L 104-199, 110 Stat 2419) extend marriage or some or all of its benefits to same-sex couples. We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, 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. 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.

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 present 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. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

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. It is obvious that there are exceptions to this general rule — some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes — but the Legislature could find that the general rule will usually hold.

Plaintiffs, and amici supporting them, 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.

To support their argument, plaintiffs and amici supporting them refer to social science literature reporting studies of same-sex parents and their children. Some opponents of same-sex marriage criticize these studies, but we need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.

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. (See Goodridge, 798 NE2d at 979-980 [Sosman, J., dissenting].) 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.

In sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn.