What about the

What about the

With all the
rationality and calm of Chicken Little during a 6.0, The
New York Times
has weighed in on (take a deep
breath, now) Jason Seymour v. Julie Holcomb as City
Clerk of the City of Ithaca In the Matter of
Elissa Kane v. John Marsolais, Albany City Clerk Sylvia
Samuels v. The New York State Department of Health
Daniel Hernandez v. Victor L. Robles.

To wit:

“The New
York decision thrusts several challenges before gay
activists: Do they continue waging legal battles when
more courts seem skeptical about forcing gay marriage
on the public? Should the cause turn toward more
modest goals like supporting civil unions and
domestic-partner benefits, like the law that
Connecticut passed last year?”

Curious they
forgot the “down the throat” when speaking of

Yes, yes, the
ruling is a setback, but hegemonic power doesn’t
yield its authority to logic and reason. Breeders own
marriage in this country and, Massachusetts be damned,
have no intention of ceding it to the same-sex couples
without a fight. And just as with the civil rights movement,
that fight will not be won by putting it to popular
vote. Leave us not forget that interracial marriage
was overwhelmingly opposed by that great phantom mob,
the American people, even as Jim Crow was evaporating into
thin air. Same-sex marriage will be won by same-sex
couples—and even more important, their
children—standing up for themselves and demanding
what’s rightfully theirs. But as I always say,
in the immortal words of William Gaddis:

You get justice in the next world; in this world you have
the law.... It’s the money, Christina;
it’s always the money. The rest of it’s
nothing but opera.”

An increasing
number of business entities know “it’s the
money” and have recognized that great numbers
of their employees are common law–married to
members of their own sex, even though the law (common or
otherwise) does not widely allow such alliances. This
is subject to change. The irresistible force of
reality will doubtless overwhelm the immovable object
of irrationality this decision represents--a lot sooner than
the NYT expects.

Meanwhile as to
opera, the NYT has helpfully provided excerpts
from Judge Robert S. Smith’s majority decision:

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.”

Many have
remarked on this seemingly curious emphasis on the welfare
of heterosexual offspring, even though they’re
not part of the court case at hand. But as I have
pointed out in the past, marriage is about property.
And children are prime real estate in this culture. Thus, it
follows for the status quo (more defensive than ever
now) to be obliged to declare, no matter how silly it
sounds, that:

“Heterosexual intercourse has a natural tendency to
lead to the birth of children; homosexual intercourse
does not.”

Well, no. Sexual
intercourse, if enjoyed, leads to more intercourse, only
one variety of which might produce offspring—emphasis
on “might.” The decision continued:

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. “

Score one for
Britney Spears.

Legislature could also find that such relationships are all
too often casual or temporary.”

Apparently the
Legislature watches Jerry Springer. 

“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 could also
find the moon to be made of green cheese.

“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

In other words,
the Legislature could make itself society’s most
important pimp.

Legislature could find that this rationale for marriage does
not apply with comparable force to same-sex
couples.... 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. “

Clearly, the
Legislature hasn’t watched Jerry Springer all
that closely. A fortiori: its notions of “what
both a man and a woman are like” speak to
assumptions that it feels no obligation to voice, even in
a culture where “received wisdom” on gender
norms is challenged every day.

“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.... In sum, there
are rational grounds on which the Legislature could
choose to restrict marriage to couples of opposite

Such grounds are
in no way rational because they rest on assumptions the
Legislature has no means of proving.

“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.”

Love the
“solely,” don’t you? You see, they know
precisely what they’re doing. They just
don’t want to say it out loud.

“Until a
few decades ago, it was an accepted truth for almost
everyone who ever lived, in any society in which
marriage existed, that there could be marriages only
between participants of different sex. A court should
not lightly conclude that everyone who held this belief was
irrational, ignorant or bigoted.”

there’s nothing “light” about it. In
the minority opinion filed in the case, Chief Judge
Judith S. Kaye note:

course, there are many ways in which the government could
rationally promote procreation--for example, by giving
tax breaks to couples who have children, subsidizing
child care for those couples, or mandating generous
family leave for parents. Any of these benefits--and many
more--might convince people who would not otherwise have
children to do so. But no one rationally decides to
have children because gays and lesbians are excluded
from marriage....

“The state
plainly has a legitimate interest in the welfare of
children, but excluding same-sex couples from marriage
in no way furthers this interest. In fact, it
undermines it. Civil marriage provides tangible legal
protections and economic benefits to married couples and
their children, and tens of thousands of children are
currently being raised by same-sex couples in New
York. Depriving these children of the benefits and
protections available to the children of opposite-sex
couples is antithetical to their welfare.”

And thus the
Legislature has deemed necessary an insistence not only on a
society of separate and legally unequal couples, but
separate and legally unequal children as well:
quasi-orphans thoroughly stigmatized from birth in
spite of whatever manner of family ties might be confected.

All this will of
course come to an end, not through the force of law but
rather the force of opera. And not one by Mozart.

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