There have been some diaries regarding New York's recent Court of Appeals' decision upholding New York's ban on same gender marriage (
Hernandez v. Robles), but I don't think anybody has really focused on how errantly stupid the majority opinion is.
There's been discussion of whether the court should use strict scrutiny, or whether marriage between consenting adults is a fundamental right. The questions do matter of course, because they determine how closely the court examines the exclusion, and what burden the government has to justify it.
But even if excluding gay couples from marriage was appropriately examined with the weakest possible scrutiny, using the rational basis test, the court still had to show some legitimate government interest rationally related to the exclusion. Yet the court's efforts to do so are simply silly.
To begin its constitutional analysis, the court immediately stated its focus was going to be purely on the welfare of children, setting aside every other possible basis for marriage.
The court then proposes two legitimate government interests, relating to the welfare of children, supposedly served by excluding same gender couples from marriage. These two reasons will at several later points be the basis for the court's decision that the Due Process or Equal Protection clauses are not violated, as the court repeatedly claims it has previously shown there are rational grounds for excluding gays.
The first Legitimate Government Interest is the following:
"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".
The discussion that follows takes up the rather peculiar proposition that because heterosexual relationships can be temporary and casual, children can be produced temporarily or casually. Therefore the legislature could rationally decide it was more important to encourage long term committment among straights than gays. Gays, after all, plan their procreation.
To the extent my fellow heterosexuals become aware of this reasoning, I hope they'll be a little shocked at the stereotyping of our community. But the more important logical point is that, even if true, there's no rational relationship between an interest in providing heteros with an inducement to form long term commitments, and a rule that excludes gays and lesbians from benefiting from the same inducement.
In other words, is there any reason to think a hetero couple would be less likely to take advantage of marriage (and thus make that committment) simply because marriage is also available to gay couples? Is that a rational belief by a legislature? And, if there are any such persons out there, wouldn't their reaction be purely based on prejudice?
The court's second Legitimate Government Interest is a little more familiar, but no less irrelevant to excluding same gender marriage. The court states:
"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."
This almost sounds like it makes sense, until given any thought. The court's extended point is that though there is no social science research to suggest same gender couples are worse parents, there's no research proving they aren't worse. Given that the research doesn't guarantee the parenting is equal, the legislature could use "common sense" and find a child would be better off with mixed gender parents.
Setting aside the nearly impossible scientific hurdle set for gay couples (Prove beyond all doubt they are never bad parents?), and the recent decision of the Arkansas Supreme Court findng gays perfectly competent as foster parents, the question left hanging by the court reasoning is exactly what children are they talking about?
In other words, how does excluding gay couples from marriage make it more likely that any existing child will have mixed gender parents rather than same gender ones?
One could hypothesize some existing gay parents who, disheartened by their continuing inability to get married, split up so as to marry other genders, but it's an unlikely scenario. As unlikely is the opposite notion, that a mixed gender couple would abandon each other and take off with the kids to join their new gay lovers just because they could now get married.
Not that seemingly heterosexual marriages don't split up because one member comes out of the closet. But to assume that such split ups would happen at any greater rate because the person could now enter into a new marriage with their new love interest, as opposed to just living together, is abstract speculation. It wouldn't be grounded in a realistic appraisal of actual human behavior.
The remaining possibility is that the government's legitimate interest is not with the welfare of existing children, but future children. Perhaps some gay couple might decide not to have children, because they could not get married. The legislature would presumably be deciding that it would be better off if those children were never born than that they should grow up with same gender parents. How is that not a decision based on prejudice?
Those are the only two reasons proffered by the court as supporting their decision. These are the only reasons even suggested for excluding homosexuals from getting married.
It's true that if there were any kind of serious scrutiny, these reasons would be obviously insufficient. But again, without doing violence to the term "rational", the court has also failed to show that the government interests suggested in the welfare of children have any rational relationship to keeping gay couples from getting married.