The silver lining
to the New York State high court’s poorly argued
ruling in favor of marriage discrimination is, well,
that it’s poorly argued. If we make our case
for equality directly to our fellow Americans, we’ll
win.
“Is that
all there is?” sang Peggy Lee.
I can’t
honestly say those were the first words that wafted through
my head when I read the shocking plurality opinion of
New York’s high court last week, refusing to
strike down the exclusion of same-sex couples from
marriage. The first words were more like “twisted
legal reasoning” (New York Times
editorial, July 7), “callous and insulting”
(Matt Foreman, National Gay and Lesbian Task Force),
or “outdated and bigoted” (Howard Dean,
Democratic Party).
Just five weeks
after oral arguments in the freedom-to-marry cases
brought by 44 couples and their children, the New York court
of appeals (the state’s highest court) ruled,
4-2, that it is not necessarily
“irrational” for the law to exclude same-sex
couples and their loved ones from marriage. Applying a
toothlessly minimal scrutiny to the denial of
something as important as the freedom to marry, the
plurality held that the limitation of marriage to
different-sex couples could be arguably justified on
the basis of either of two possible rationales. First,
heterosexuals, who can conceive children by accident, need
the stability that marriage brings (whereas gay
couples, whether or not raising children, do not).
Second, the denial of marriage, in the court’s words,
could relate to the “intuition” 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,” even though, the judges
conceded, there is no actual evidence that this is so
or that children raised in other homes, including by gay
parents, are at all harmed.
Put aside for the
moment, as the dissent explained, that “marriage is
about much more than producing children, yet same-sex
couples are excluded from the entire spectrum of
protections that come with civil
marriage-—purportedly to encourage other people to
procreate.” In fact, the plurality’s
strained rationalizing of the discriminatory exclusion
fails on its own terms.
New York’s
ruling came just a week after the Arkansas supreme court
unanimously rejected precisely the same proffered rationale;
unlike the four-member majority of New York’s
highest court, the judges in Arkansas (!) instead
relied on the evidence provided by experts in child welfare.
That evidence was, of course, available to the New York
judges. Institutions such as the American
Psychological Association, the National Association of
Social Workers, the American Psychiatric Association, the
Association to Benefit Children, and the American Academy of
Matrimonial Lawyers, among other authorities,
submitted briefs to the court calling for an end to
marriage discrimination in the interest of children and
families.
And the very week
of the New York decision, the American Academy of
Pediatrics weighed in once again with an authoritative
statement titled “The Effects of Marriage,
Civil Union, and Domestic Partnership Laws on the
Health and Well-being of Children” (see the
academy’s full analysis on
www.freedomtomarry.org). The nation’s kids’
doctors know best—and here’s what they
said:
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Wolfson is executive director of Freedom to Marry and
author of Why Marriage Matters: America, Equality,
and Gay People’s Right to Marry (Simon and
Schuster, 2004).