GAY RIGHTS, WRONGED
Civil rights advocates are in an uproar over the Court of Appeals's decision in Hernandez v. Robles, an outcome described by Chief Judge Judith Kaye as an "unfortunate misstep" in the Court's history and an undeniable failure by our judiciary to protect the constitutional rights of citizens who are being subjected to grossly disparate treatment under the law.
Forty-four same-sex couples, who wish to marry, filed lawsuits seeking a judicial declaration that state laws, which limit licenses to opposite-sex individuals, were violative of New York State's Constitution. After several rounds of appeals, the state's highest court was unwilling to identify a constitutional breach and ultimately concluded that there was a "rational basis" for the government's restriction of marriage licenses to opposite-sex couples.
Employing language and logic viewed by many as backward, intellectually dishonest, and intolerant, the majority opinion advanced the argument that the limitation of marriage licenses to opposite-sex individuals is "important to the welfare of children." Incredibly, the Court baselessly extolled the virtue of child-rearing by a "mother and father," and posited that a more balanced family environment is presented to our young in such instances. As the Court noted:
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.
One can't help but cringe while reading the Court's stereotypical and unscientific notions of human behavior, particularly the decision's conclusory reference to the "unstable" nature of opposite-sex coupling and the greater importance to society of offering such individuals the right to marry. As the Court wrote:
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.And, to add insult to injury, the Court concluded that a "rational legislature" could legally justify disparate treatment of couples on the basis of their procreative ability (or lack thereof). Here's how the Court phrased that highly questionable analysis:
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 decision's reasoning strikes us as overly convoluted and knotty. For example, is the Court implying that only straight couples are capable of "solemn, long-term commitments" and that all others are unsuitable parents or role models? Where is the support for that proposition? (You will certainly find none in the decision.)
We believe New York Law School Professor Arthur S. Leonard got it right in his critique of the Court's "illogical" decision in a cover story published only a few days ago in Gay City News. He wrote:
In short, the plurality and concurring opinions are disgracefully short on rational analysis, and long on sloganeering, trading in stereotypes about accidentally procreating heterosexuals. Neither ever ventures a positive justification for denying marriage rights to same-sex couples.And while the Court invited the Legislature to take remedial action, Chief Judge Kaye, in a dissenting opinion, speculated that a response from our lawmakers is not likely to be imminent. As Judge Kaye observed:One is left to conclude that they understand what is left unsaid in their opinions--that the continued denial of marriage rights to same-sex couples has everything to do with religious and emotional sentiments and moral judgments, exactly what the Constitution does not allow as justifications for discriminatory legislation, and precious little to do with rationality.
The fact remains that although a number of bills to authorize same-sex marriage have been introduced in the Legislature over the past several years, none has ever made it out of committee (see 2005 NY Senate-Assembly Bill S 5156, A 7463; 2005 NY Assembly Bill A 1823; 2003 NY Senate Bill S 3816; 2003 NY Assembly Bill A 7392; 2001 NY Senate Bill S 1205; see also 2005 NY Senate-Assembly Bill S 1887-A, A 3693-A [proposing establishment of domestic partnerships]; 2004 NY Senate-Assembly Bill S 3393-A, A 7304-A [same]).Regrettably, we must concur with Judge Kaye. The decision marks a sad day indeed.It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.
I am confident that future generations will look back on today's decision as an unfortunate misstep.
For a copy of the Court of Appeals's decision in Hernandez v. Robles, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_05239.htm
For a copy of Professor Leonard's piece in Gay City News, please click on the following link:
http://gaycitynews.com/gcn_527/marriagebanrational.html
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Comments
Needless to say, this case is a tragedy for gay persons such as Tom and me and for our son, Michael, who depends on the stability of our relationship as a mooring in his life.
However, what disturbs me most about the decision is its apparent intellectual dishonesty in which it says that a rational legislature could conclude that gay households are more likely to be stable when rearing children than are straight households and therefore don't need the incentive to stability accorded by the benefits of marriage. Perhaps in some Stephen Hawking imagined universe there COULD be such a rational Legislative conclusion, but I do not think it advances Constitutional Law any to say "a rational Legislature could" when the court knows darned well that OUR Legislature would NEVER. "Rational basis" analysis must be not only "rational" but plausible! How many New York State Legislators when polled would go on record with the statement, "Gay households are inherently more stable than straight ones?" Zero.
And by purest coincidence that is the number of reasons this is a rational decision of the majority of the Court of Appeals.
Posted by: Dov Treiman | July 8, 2006 5:05 PM
Actually, it would be funny if it were not so tragic: Judge Smith's two articulated "rational bases" are factually diametrically opposed. The "channelling heterosexual sex" rationale presumes gay households are more stable and less in need of the reinforcement of marriage in order to protect kids, but the "preferable family for raising children" rationale presumes that kids are better off raised in heterosexual households in order to have traditional role models. But, of course, those traditional role models are less likely to be stable, so need the encouragement of marriage. It's like a dog chasing its own tail.
Posted by: Art Leonard | July 9, 2006 1:33 AM
I noticed the same thing about Smith's irrationales. But Smith didn't even speak of role models. All he said was that the Legislature could rationally find an advantage for a child seeing a "real man" and a "real woman." So I suppose this is to contrast with the blow up dolls of women we gay guys keep in our homes. It also assumes that having such a "real" person around is a RATIONAL representative sampling of the other three billion persons of that gender on the planet (underinclusive) or that one has to LIVE with a member of that gender in order to assess the reality thereof (overinclusive). But, of course, this irrationale is nothing but a restatement of the ancient bigotries, as Chief Justice Kaye aptly points out.
Posted by: Dov Treiman | July 9, 2006 3:29 AM