NY Court reject same-sex wedding licenses

[Ghoulish Delight]

Okay, so there's a valid legislative reason for them to have made this ruling, I can understand that, and honestly if it means that legislation comes up to make a change, then it's for the better. But their logic is so freaking twisted in the ruling...

"For the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships,"... "The legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples," So, because straight people are idiots and have children when they don't have the means or brains to care for them, we're not going to let gay people get married?!?! I'm dizzy that's so ridiculous.

And then there's this gem:
And it ruled that a state legislature could also rationally conclude that "it is better, other things being equal, for children to grow up with both a mother and a father."Based on what, exactly? Last I saw there wasn't a shred of research that indicates that.

Excuse me while I vomit.

http://www.msnbc.msn.com/id/13736236/

[Not Afraid]

That is some of the most RIDICULOUS logic I've ever heard of. If there is such a concern about children growing up with both a mother and a father, why don't they outlaw divorce?

[Alex]

Before commenting I'm reading the full opinion (since short news articles are notirious for screwing up the precise logic in these things). If anybody else wants to it is here:

http://www.nycourts.gov/ctapps/decisions/jul06/86-89opn06.pdf

[Gemini Cricket]

I am hopeful.

I think the emphasis now will be to change the law. I think there is still hope.

This just means the fight goes on.

I'm not sad.
:)

The rationale behind this ruling is bizarre.

[katiesue]

I don't understand the logic that gay parents aren't good parents. It seems to me that since they will have to go to some trouble to actually have children, either naturally or through adoption, doesn't that mean that they really want the kids. Unlike some hetro parents who have lots of "accidents" and unwanted children.

[Ghoulish Delight]

Okay, so reading the full decission, this is what I get:

The reasons stated above are not necessarily good reasons, or reasons that the law shouldn't be overturned. But they are reasons other than flat discrimination that the legislature might have defined marriage in 1909 as between a man and a woman. So, the law stands as constitutional because its intent wasn't overtly discriminatory.

Well, then, my question becomes...does intent matter? If it discriminates, it disciminates, whether that was the intention or not, no? In the decission, the justices concede 316 benefits from marriage that are denied to a whole class of citizens, and their only defense of that is, "Well, the legislature didn't MEAN to deny them that 100 years ago."

Still pretty twisted.

[Prudence]

So, because straight people are idiots and have children when they don't have the means or brains to care for them, we're not going to let gay people get married?!?! I'm dizzy that's so ridiculous.


As I read it, it's more like: (the legislature could rationally find that) straight people are so unstable that the state is justified in bribing just that group with marriage benefits to get them to create stable households, and that gay couples, because they are less likely to "accidentally" become parents, aren't as unstable and don't require the inducement to create stable homes.

Not that you weren't saying that, I just wanted to highlight the somewhat back-handed compliment in there.

I didn't read the due process analysis. I need to compare the analysis of the majority and dissent opinions to comment on that. But, I'm not surprised that the court punted back to the legislature. I should probably look up whether appellate judges are elected in NY. My impression from various scuttlebutt is that the "activist judge" rhetoric (whether valid or not) has left some judges eager to punt whenever possible, less they lose their elected spots on the bench.

[Prudence]

I don't understand the logic that gay parents aren't good parents. It seems to me that since they will have to go to some trouble to actually have children, either naturally or through adoption, doesn't that mean that they really want the kids. Unlike some hetro parents who have lots of "accidents" and unwanted children.

that's actually the logic used in the majority opinion as a possible justification for not permitting gay marriage. Makes my head hurt, too.

[Prudence]

Well, then, my question becomes...does intent matter? If it discriminates, it disciminates, whether that was the intention or not, no? In the decission, the justices concede 316 benefits from marriage that are denied to a whole class of citizens, and their only defense of that is, "Well, the legislature didn't MEAN to deny them that 100 years ago."


Yeah, intent matters in some circumstances. Without going in depth, the short version is that if there's a rational intent (doesn't have to be a good one), and if the intent is something other than discrimination, and if any resulting discrimination doesn't affect a protected class, it's not unconstitutional. That's a simplistic breakdown; anyone who would like to give a more detailed dissertation is welcome to do so.

Consitutional analysis is frequently not what one might think of as "fair."

I need to stop replying in this thread. Moving along now...

[Alex]

Ok, here are the conclusions I see reached.

1
First, it dismisses amici claims that the existing law does not exclude same-sex marriages. The court admits that the statute never explicitly excludes such unions but that this is simply because when the law was passed in 1909 it was the implicit societal assumption and whenever specific unions are mentioned in the law they are male/female in nature.

Therefore the Constitutional question (whether such exclusion is constitutional) is not mooted.

2
Essentially, the same constitutional question has been asked in several other states with mixed results. This isn't binding on New York state of course, but informs the debate. The constitutional question has been affirmed in Massachusetts and Vermont but rejected in Arizona, Indiana, and New Jersey and remains a question under scrutiny in Hawaii.

3
Marriage is a benefited institution. There are at least 316 statutory benefits to marriage in the state of New York (tax stuff, probate, etc.). So marital exclusion is more than symbolic.

4
As a result of 3, exclusion must have a rational basis. In this part they do not argue 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,"... "The legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples,"

But rather that if this is the basis on which such exclution were maintained it would be a rational legistlative basis. Essentially, since there is not really such a thing as an unplanned/unexpected pregnancy in a homosexual relationship, the legislature could find these inherently more stable than the average heterosexual relationship and that therefore the latter needs incentives to move into a more stable framework.

The court does not argue that this is true, just that it is a rational basis unlike simply saying "we hates the queers."

Another rational basis is that the legislature could conclude that opposite-sex parenting is better for children. The court does not argue that this is the case and acknowledges that it is not necessarily so. But that the point isn't whether the rational basis is true but whether it exists.

Here's the relevant quote

To support their argument, plaintiffs and amici supporting them refer to social science literature reporting studies of same-sex parents and their children. Some opponents of same-sex marriage criticize these studies, but we need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same-sex and oppostie-sex households. What they show, at best, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child rearing.

Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing that there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home. And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households.

Essentially arguing that while there is no evidence to a claim of harm the idea is not yet so thoroughly countered by evidence to bar it.

It then goes on into technical detail rejections of the Due Process and Equal Protection claims on which the suits were filed but essentially the ruling is that because there remain rational bases on which the law could rest it is not the courts place to overturn it though "if we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice -- if we agreed with the plaintiffs that it is comparable to the restriction in Loving v Virginia -- we would hold it invalid, no matter how long its history."

It is striking to me that at root the NY Supreme Court is saying that the rational basis for the state to be involved in marriage at all is to promote the welfare of children. This raises common howls that it means Lani and I should not be allowed to marry (since we have no intention to procreate). The court responds:

The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the instutition would be a very bad idea.

For me this raises the question of what role the state should have in establishing the gender of the parties before offering a license. And where the line should be drawn when physical gender and chromosomal gender differ.

In reading the decision I get the sense that some of the concurrers would have loved to overturn it but couldn't find a judicial basis on which to do so.

Essentially this decision seems to have come down to whether the justice believed that the data on impacts of same-sex child rearing are substantial enough to rule a preference for opposite-sex child rearing completely irrational. The majority felt that this point hasn't been reached yet while the dissenting minority felt that it has. Essentially, the outrage I am seeing in some circles is over misunderstanding of "rational." When the court says the basis is rational they aren't saying they agree with it or that it is necessarily correct just that there is a non-prejudicial basis to the legislative action.

That "encouraging a maximally beneficial environment for children" is a valid state interest and that in the absence of overwhelming evidence to the contrary it is not the courts place to dictate the legislatures priorities in achieving that goal. But it does open the door to a basis on which the court could change its mind at a future point when more substantial data is available.

Personally, I think marriage should be open to everybody who wants it (actually, I think the state should get out of the game altogether but while they're in it, it should be available to anybody who wants it). But I'd far prefer to see it settled legistlatively than judicially.

This decision seems to be more nuanced and grudgingly accepting of the courts role in the debate than in most of the other state supreme court decisions (on either side of the decision) I've read.

[mistyisjafo]

That is some of the most RIDICULOUS logic I've ever heard of. If there is such a concern about children growing up with both a mother and a father, why don't they outlaw divorce?

That we focus on the continued "need" to ban gay marriage but have no way of resolving the high rate of divorce and single parent families just blows me away. How about making a law that if you get married you're required to stay married? Or how about making a ruling that once a divorce is final there is some sort of leveling off as to how much the loser has to pay the winner?? OR how about worrying about what divorce does to children?

This arguement over gay marriage continues to make me nuts!!!:mad:

[Ghoulish Delight]

Yeah, I followed their reasoning...I'm just disappointed by it. I mean, I'd be right there with them if the aim of the suit were to remove the institution of marriage all together due to claimed discrimination. But expanding who is allowed to get married does not diminish the stated "rational basis" for marriage. It still remains an incentive for heterosexual couples to get married and, considering that, married or not, same-sex couples can adopt, the "better for children" argument doesn't seem to hold much water. So, imho, since the only thing that would be different between upholding the current language of the Domestic Relations law and not upholding it is that a class of citizens is denied equal protection. Allowing that equal access does not invalidate either of the two stated rationalizations.

I understand that the court wasn't claiming that those reasons were good reasons, just that they were logical reasons stemming not from discriminatory aims (though I might argue on that point regarding the second reason). And I will certainly be glad should this result in a legislative change. But I think it sets (or perpetuates?) an unfortunate precident of "well, it's always been like this, and they didn't mean anything by it, so it's not discrimination."

[Alex]

Your reasoning is much the same as in the dissent and it is compelling as regards the two possible rational bases the majority opinion puts forward (I'm assuming that they are offering them as possible bases and not the only possible bases) but no so much the second one wherein there is a common sense basis (not necessarily correct common sense, just in the sense of a folk rationale in the absence of actual evidence) that says heterosexual parenting is better for children than homosexual parenting (and therefore the state would have a rational basis on which to encourage one but not the other). This is the basis on which the opinion seems to more prominently rest. That for a very long time society has been of the opinion that one-woman, one-man is best for child rearing and that there is not yet any sufficient evidence for over turning this folk wisdom.

What I would have liked to see is a requirement that the New York legislature make explicit its reasoning for legislating the exclusion. The court is correct that it is a basic assumption of American legislation and jurisprudence that marriage is one-man, one-woman. If there are valid reasons for this to be continued and invalid reasons, and if a valid reason could become invalid over time through research then the Legislature should be required to make explicit that which was implicit so that it can be properly evaluated.

[Ghoulish Delight]

This is the basis on which the opinion seems to more prominently rest. That for a very long time society has been of the opinion that one-woman, one-man is best for child rearing and that there is not yet any sufficient evidence for over turning this folk wisdom.I was hesitant in posting my response, because I did read this the same way...but then it ocurred to me that homosexual couples can adopt anyway, married or not, civil union or not. I suppose the process of adoption becomes marginally easier with a marriage certificate, but as I understand the process, even married it ain't easy. So again I'd ask (the court, not you in particular, Alex) what the difference would be should same sex marriage be allowed?

[Alex]

Oh, and one aspect of the decision with which I do strongly disagree is the assumption that child welfare is inherently a governmental role. To me this gives the government carte blanche to do anything that can be hooked to the "who will think of the children" wagon.

Since the assumption is that government has the right to interfere in promoting child welfare then the logic that the burden lies in disproving their theory of welfare is sound.

I'm of the view, however, that only in the most extreme situations is government warranted in dictating what is best for children and therefore the burden should be in proving that not only is something harmful but that the resolution is equally clear.

Arguing this, however, is like arguing that the application of the commerce clause is unconscionably broad in its application. For the most part the courts stopped debating the issue a long time ago and the New York view is not unusual.

[Alex]

So again I'd ask (the court, not you in particular, Alex) what the difference would be should same sex marriage be allowed?

Presumably the argument would be that even if non-optimal conditions are allowed to exist (such as divorce by parents and same-sex adoption) the state could still make a rational argument for encouraging the optimal over sub-optimal.

[Morrigoon]

However, since single parents can both have children and be gay, if the state took its assumed "defense of the children" role seriously, they would see that the gay parent isn't going to stop being gay in order to enter into a hetero marriage for the benefit of their child, and that anyone who did would by definition be creating a dysfunctional household, which we all know to NOT be in the child's best interests, and therefor encouraging the parent to enter into *A* stable relationship, even with a member of the same sex, would prove far more logical and feasible.

But the state is responsible for the welfare of ALL its citizens, and the state's gay citizens would be better off in stable, contractually-backed relationships than in a perpetual state of singleness. Therefore, if the state took its commission to promote the welfare of its citizens seriously, again, they should sanction gay marriages.

[Alex]

By that logic the state should give everybody a welfare check and not just poor people since everybody could always use more money.

The postulation is that gay people are already disposed towards having children only when they are in a stable relationship (there should be no such thing as an accidental unwanted pregnancy for homosexuals and why would they choose to have a baby in unstable conditions is the thinking, I suppose).

No matter how irresponsible the homosexual sex you get no unwanted and unplanned babies. This isn't true of heterosexual sex. If the goal is simply to encourage people to wait until they are in stable secure relationships to have children then marriage doesn't provide much incentive for gay people as they are likely already waiting for stable secure relationships before going to the hassle of arranging to have a child.

Since heterosexual sex carries risks that are not present in homosexual sex could not the state rationally decide that encouraging homosexuals to limit sex to a single partner would not serve a goal accomplished in encouraging heterosexuals to limit sex to a single partner.

If the state interest is in affecting precreational behavior then it makes some sense to exclude homosexuals.

I don't really endorse that but all the court is saying is that "since the state can make an argument for this exlusion that relies on more than just 'ew, gay is yucky' it isn't our place to dictate legislative priorities."

That's why I would like to see reasoning made explicit. The court is postulating rational justifications. I think they should force the state to play its hands so everybody knows which justifications provide the purpose for the statute. In 1909 "that's just the way it is" was sufficient for this issue. In this ruling the court says that is no longer an acceptable justification. I would have preferred the court said something like "unless the state legislature provides rational justification for the existing law we'll have to assume there is no rational underpinning and overrule."

Then the state would say for reasons A, B, and C we do not allow homosexual marriage and then the pro-marriage could begin work on showing why A, B, and C are no longer valid considerations.