Hit and Run

Don't really have time for a full analysis this morning (I need to be concentrating on Peter S. Beagle), but here's a couple of notes on the NY court decision on SSM.

I haven't been able to find the full text of the decision yet, but every excerpt I've seen from the majority opinion in the New York SSM case is deeply flawed. Here's one article from NYT, and an excerpt from the opinions. (Found the opinion, here at No. 88.

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. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. 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. The Legislature could also find that such relationships are all too often casual or temporary. 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 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.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex
couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. 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, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

Well, aside from the fact that this argument doesn't say much good about heterosexual relationships, it seems to promote the idea that children being raised by opposite-sex couples somehow deserve the preferred status implicit in having married parents, while children being raised by same-sex couples do not, merely because in the first case, actual child-birth is involved (conveniently leaving out those lesbian couples who opt for artificial insemination). By this reasoning, all children are born to opposite-sex couples (with which I don't argue), but the fact of birth is only one part of child-rearing, although an essential part. However, people seem to have no problem breeding, married or no. Consequently, the conclusions simply do not follow from the facts. There's a major lack of contact with reality here, and the second paragraph is completely off in space.

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. 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. …

There is no evidence to support this whatsoever, and in fact, there is growing evidence that it makes little or no difference whether a child is raised by opposite-sex or same-sex parents. I'm afraid there's more intuition than experience in this, and the intuition is perhaps equally cast as wishful thinking.

Update:

The whole argument concerning stability and the needs of children in the majority opinion is even sketchier in the light of this study, reported at Gay.com:

Children of same-sex couples benefit when their parents are able to marry or form civil unions, according to a report commissioned by the American Academy of Pediatrics.

"The Effects of Marriage, Civil Union and Domestic Partnership Laws on the Health and Well-Being of Children," published Wednesday in the July issue of Pediatrics, concluded that civil marriage can strengthen families and help foster financial and legal security, psychosocial stability, and a greater sense of societal acceptance and support for kids.

This just reinforces the speciousness of the argument by the majority in New York. Sloppy, and that's being kind.

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

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. …

No one is really asking for that kind of context -- and the context is really somewhat strained. The question is, as the dissent points out,

The court concludes, however, that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty. But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. …

Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them. …el4 The claim that marriage has always had a single and unalterable meaning is a plain distortion of history. In truth, the common understanding of "marriage" has changed dramatically over the centuries. …

The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it. …

This last statement has become a standard of American Constitutional jurisprudence.

There is already a bit of a buzz that the New York decision will affect the thinking in other state courts on this issue, and I suppose that the Christianists are going to make as much of it as they can, so it may do some damage in the short run. However, I suggest that the dissent, which seems to be more closely argued, will have equal if not greater weight ultimately. The majority decision is just simply a bad opinion from any rational standpoint -- faulty logic, false assumptions, the works. It's almost as bad as Bowers.

Update:

The following is cross-posted from a discussion at Epinions Addicts:

realtraveller said:

Both of these cases were more about the separation of powers than anything else. The Georgia case was about whether the referendum was a valid vote of the people. They ruled it was. The NY case said that the definition of marriage was up to the legislature, not the courts.

In every such case I know of, the courts have told the legislature to fix it. Even in Massachusetts, a/k/a Satan Incarnate, the court gave the legislature time to come up with a remedy, which it did not do. This is perfectly in keeping with the role of the courts and separation of powers. The BS about the courts usurping the role of the legislatures is just that -- BS.

Please also note that it seems to be symptomatic of the Christianists that instead of a remedy making statutes conform to constitutional requirements, their first reaction is to demand an amendment making constitutions conform to their theology.

It seems to me that in most of these cases the wrong questions are being asked and answered. It's somewhat similar to Bowers and Lawrence: in Bowers, the Court answered the question (Scalia's favorite) of whether the Constitution guarantees the right to homosexual behavior. (Even then, one could argue that it does, under the Ninth Amendment.) The Lawrence Court got it right: the real question is, what are the limits on state power to regulate the behavior of consenting adults?

It seems to me that SSM is another case in which we should be asking, not what rights the Constitution guarantees to individuals, but what the limits are on the state's power to interfere in their behavior. Who said the government should be defining marriage to begin with? (Come to think of it, "one man/one woman" is pretty lame as a "definition" anyway -- doesnt' tell you what a marriage is at all.)

I haven't seen the Georgia decision, which seems to be quite limited in scope and fairly technical anyway, but the New York decision is already being touted as influential, which may be the case, but it really is a piece of junk. The dissent seems to be much more coherent, and could be equally influential -- it wouldn't be the first time that a dissenting opinion eventually became law.

Fasten your seatbelts -- it's going to be a bumpy night.