IGF CultureWatch

The 4-2 decision by the New York Court of Appeals that the state constitution cannot be read to require equal marriage rights for same-sex couples was keenly disappointing but not a shock. Three of the four lower courts that heard the cases involved ruled against same-sex marriage. The Republican governor and Democratic attorney general both opposed a supportive decision, although the attorney general says he personally favors gay marriage.

But the majority's reasoning was contemptibly poor and tracked hoary social conservative arguments so closely the decision could have been written by the Pope. The strained reasoning suggests that the court was determined to justify a conclusion it had arrived at on other grounds, such as fear of heightening passions about "judges legislating from the bench."

If so, it showed that social conservatives are getting the lapdog judiciary they want. To U.S. Chief Justice John Marshall's ringing declaration of judicial supremacy, "It is a Constitution we are construing," the New York court replied, "Not if it involves homosexuals."

In creatively imagining "rational" reasons for the legislature's failure to legalize same-sex marriage, the court said it might think that for the welfare of children it is more important to promote stability in opposite-sex than in same-sex relationships and that since heterosexual relationships are "all too often casual or temporary" an important function of marriage is to create more stability and permanence in the relationships that cause children to be born.

Notice that this only offers a reason for approving heterosexual marriage but no reason at all for prohibiting same-sex marriage. Notice too that the argument is both under-inclusive and over-inclusive. It ignores same-sex couples who adopt children or retain custody of children born in a previous heterosexual marriage, both allowable under New York law. And it ignores the fact that some opposite sex couples through birth control or infertility do not have children.

Moreover, in this analysis the undoubted benefits of marriage to the two individuals themselves who constitute the same-sex couple is held to be of no significance: Gay couples and their welfare are contemptuously beneath judicial notice.

In a second argument the court said the legislature might believe it is better for children to grow up with both a mother and a father before his or her eyes every day as models of what men and women are like.

This reasoning suggests that the legislature must think a child never sees any males or females except its mother and father, whereas with brothers and sisters, aunts and uncles, playmates, parents of friends, teachers, and people on television, the child can hardly escape observing what both men and women are like.

And it too is over- and under-inclusive. Many single heterosexual parents rear children after a divorce or a partner dies. And gay and lesbian couples can legally under New York law adopt children whose parents have died or cannot care for them. Yet, according to the court, the legislature may think it better for those children to have no parents at all or unmarried gay parents than to have two married parents of the same-sex. So those children's well-being is also beneath judicial notice.

In short, unlike the Massachusetts Supreme Judicial Court, the New York court refuses to recognize that social and legal judgments about gays and their ability to rear children have changed since the state passed its current marriage law nearly a century ago.

Finally, the court airily and dismissively observed, "Plaintiffs have not persuaded us that this long accepted restriction is ... based solely on ignorance and prejudice against homosexuals. Until a few decades ago, it was an accepted truth for almost everyone ... that there could be marriages only between participants of different sex."

But even the New York court might admit that it was bigotry and prejudice against homosexuals fostered by the psychiatric, legal and religious establishments that long supported sodomy laws and related discrimination against gays. And that that long-standing hostility and criminalization effectively prevented serious consideration of, much less advocacy for, marriage between same-sex partners. The court in effect blames gays for being oppressed and asserts that historical oppression is a sufficient rationale for its continuance.

Nor, contrary to the ignorant court, have gays only recently expressed the desire to marry. Scholarship on the history of same-sex partnerships, unions, and marriages is not well-developed, but we have occasional reports of clandestine attempts to marry. French writer Michel de Montaigne wrote that when he visited Rome in 1581 he heard a report of several Portuguese men who earlier had married there in a church "with the same ceremonies with which we perform our marriages."

They were later burned at the stake. But that wasn't mere "ignorance and prejudice," I suppose.