NY Court reject same-sex wedding licenses

[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.