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.

By now you've probably heard about the New York Court of Appeals' deciding that their state constitution does not require equal marriage rights for same-sex couples. Problem is, much of what you've heard is misleading.

Yes, the Court declared that "The New York Constitution does not compel recognition of marriages between members of the same sex." But no, they did not declare such marriages unconstitutional, nor did they "vote to prohibit" such marriages. Rather, they decided that "Whether such marriages should be recognized is a question to be addressed by the Legislature." Indeed, they explicitly encouraged the legislature to take up the issue.

Courts are not supposed to decide whether policies are good; they're supposed to decide whether policies pass constitutional muster. What the Court did here was to ask whether the current policy of limiting marriage to heterosexuals violates the Due Process or Equal Protection clauses of the New York State Constitution.

To answer this question, the Court considered whether New York could have a "rational basis" for restricting marriage to heterosexuals. The Court concluded that it could, and it thus ruled that the restriction is constitutional--which again, is not the same as ruling that it's smart or sensible.

The rational-basis test is easily misunderstood. It does not ask whether a law is rational in the sense of being wise or compelling. It simply asks whether some non-arbitrary reason can be offered to justify it, which is a pretty easy hurdle to clear. And the Court suggests an interesting one on the Legislature's behalf:

[T]he 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.

Generally speaking, heterosexuals but not homosexuals say "Whoops, we're pregnant." Essentially, the Court is saying that that fact is a potential justification for restricting marriage to heterosexual couples.

As I said, a justification doesn't have to be a good one to pass the rational-basis test. Nonetheless, as arguments against same-sex marriage go, this one is better than most. Indeed, if I were back on my high school debate team and forced to argue the "con" side in a same-sex marriage debate, I'm not sure I could do much better.

Which is sad, because the argument is pretty poor. It falsely presupposes that the primary function of marriage is to protect children accidentally produced by heterosexual sex. What an impoverished view of that great institution.

Moreover, the argument ignores the difference between having a reason to endorse heterosexual marriage and having a reason to prohibit gay marriage. One can support marriage for heterosexuals (I do) without thinking that it should be restricted to them. One might just as well argue that because there's a reason for giving a bus discount to the elderly, there must be a reason for denying one to minors, or vice-versa.

But it's important to keep in mind that the Court is not endorsing the argument quoted above. Notice its frequent use of the subjunctive ("the legislature could decide," "the legislature could find"). Not "did decide." Not "should decide." Essentially, the Court is throwing this hot potato back in the legislature's court.

And therein lies the silver lining. In an election year, when right-wingers eagerly point to "activist judges" trying to "redefine marriage" and then use that threat to rally voters to pass reactionary amendments, the New York Court has declined to become their next poster child. Whether this was the correct decision legally is a subject for another day. But politically, it makes a point: when judges in "liberal New York" refuse to mandate same-sex marriage, right-wingers in places like Virginia and South Dakota are deprived of a key scare tactic.

Meanwhile, New Yorkers who advocate marriage equality can urge their legislature to do the job the court has ceded to it. Note that when the California legislature tried to enact marriage equality, the governor vetoed it, stating that it was a matter for the courts. Here the governor can't do that (at least not with a straight face). While George Pataki, New York's outgoing Republican governor, has promised to veto any such legislation, Democratic candidate Eliot Spitzer supports marriage equality.

All of which is to say: in the spirit of summer, when the Court hands you lemons, make some lemonade.

The defeat of the federal marriage amendment in the Senate in early June was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate. But there is a cloud behind this silver lining.

The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events:

1. A Supreme Court "victory," ordering all the states to recognize same-sex marriages, a decision that, if it came in the near future, would trigger quick passage of a federal amendment reversing same;
   
2. Unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or
   
3. A proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.

We'll continue to be haunted by this amendment, of course. It will rise from its grave during national election years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it rise again and stumble blindly forward. It's the living dead.

All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 96-4, or thereabouts.

And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. For example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and relations with the Principality of Liechtenstein.

I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-the-gays-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed implicitly to be exploiting.

Even my beloved federalism argument can sound, in the wrong mouth, like "the states should be allowed to do this godawful thing if they want to." Forgive me for not finding much inspiration in that.

Then came the news, the very same day the amendment lost in the Senate, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the foreseeable future anyway, whether by legislative or judicial action, so not much is immediately lost.

But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered "no," we're going to be stuck with many of these state amendments, adopted in a time when we didn't know any better. That will be true at least in those states where a repeal, like the original amendment, will require a super-majority in one form or another. More precisely, "we" won't be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.

With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The likely result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or, in many of these states, civil unions or watered-down domestic partnerships) a try long after experience in other states and countries has shown it's a good idea.

Of the remaining 15 or so states, a few will move legislatively and judicially toward same-sex marriage, but their public-policy advances in this area will be effectively quarantined, at least initially. That's about the rosiest realistic scenario right now for the next couple of decades.

It's not exactly the same as having a federal amendment, which would kill gay marriage in the whole United States for perhaps half a century, but it's the next worst thing.

So the federal marriage amendment is dead. Long live the amendment.