“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(New York Times editorial, July 7), “callous and insulting” (Matt Foreman, National Gay and Lesbian Task Force), or “outdated and bigoted” (Howard Dean, Democratic Party).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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