What about the
children?

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 "forcing."

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:

"Justice? 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:

"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."

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:

"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. "

Score one for Britney Spears.

"The 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 other."

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

"The 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 sex."

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."

But there's nothing "light" about it. In the minority opinion filed in the case, Chief Judge Judith S. Kaye note:

"Of 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.