This week at advocate.com, Evan Wolfson, the executive director of freedomtomarry.org, has published a thoughtful critique of last week’s decision by the New York Court of Appeals against same-sex marriage. Here is an excerpt from Wolfson’s article:
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.
Under proper equal protection analysis, neither the”accidental procreation”rationale for heterosexual”stability through marriage”nor the”best interests of the children”rationale for favoring one kind of family holds up as a justification for the denial of gay people’s freedom to marry.
As the dissent pointed out,”Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.â€¦ [After all,] no one rationally decides to have children because gays and lesbians are excluded from marriage.”
The plurality’s failure to even consider the lived realities of the 44 plaintiff couples, their kids, and the hundreds of thousands of gay New Yorkers and their families injured by the denial of marriage undoubtedly contributed to the retrograde and astonishing suggestion that the different-sex restriction on marriage somehow helps kids. In fact, as Judge Kaye noted,”the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.”That would be so even if the”intuition”that there is one”best kind of family”were true-:irrelevant as that is to kids who, after all, have the families they have, and don’t deserve the laws making their family’s life any harder.
The silver lining of the decision is, ironically, its thinness, illogic, and refusal to consider the lives of real people, including gay families, and the real meaning of the denial of the human experience that is marriage. While the dissent makes a convincing legal and moral case, the plurality and concurring opinions will present no impediment to a court or decision-maker wanting to do what is right and willing to apply real scrutiny to a constitutional and moral wrong. As the Human Rights Campaign’s Joe Solmonese put it,”If nothing else, this ruling will cause people-:gay and straight alike-:to reflect on this judge’s unusual view of gay marriage and then come to their own conclusions.”
And, because, in the words of The New York Times,“New York’s highest court has harmed both the constitutional guarantee of equal protection and its reputation as a guardian of individual liberties by denying same-sex couples the right to marry,”not just gay people, but also nongay, as people who care about fairness and equal protection under the law, are rightly feeling dissed and pissed. The Times editorial concluded,”Those who favor gay marriage need to quickly move past this week’s disappointment and get energized. That also applies to those in the other states where courts have failed to uphold the rights of all Americans.”
The full article is here. Hat tip to Feminist Law Prof Darren Rosenblum.
-Posted by Bridget Crawford