Thursday, July 06, 2006

New York Does the WRONG Thing


Today's decision holding that there is no constitutional right in New York for LGBT people to marry is the craziest thing I have ever read and I have read a lot of law.

It essentially says that there is a rational basis to give heterosexual couples the state privileges attendant to marriage but deny them to gay people because........straight people are flaky sluts and the Legislature could have rationally decided that if you didn't provide straight people all the state benefits, they'd just fuck at random, push out babies willy nilly and not stay together and provide stable homes for their children. Whereas the Legislature could have rationally concluded that this problem did not exist with gay couples. And, yes, even though admittedly not all straight people can or want to have children, or stay together after having children, or stay married, it's "too intrusive" and "too arbitrary" for the state to make specific inquiries and limit the rights of marriage to only those straight couples that fit the bill set down by the Court.

No, I'm not joking.

Get up from the floor and stop that laughing.

I'm serious:

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. . . .

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? 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 institution would be a very bad idea.

(Sure, the NY Court of Appeals discussed the traditional circular reasoning too -- it's not marriage because historically its not marriage -- but the above is the heart of today's majority opinion out of the NY Court of Appeals.)

As I said: I've read a lot of legal decisions at this point in my career. But today's 4-2 decision in Seymour v. Holcombe just takes the cake.

That is the bottom line of today's decision. Which, if I ever come up for air, I'll add to the list of "things I need to do a diary about."

(At this point, due to the new job and personal stuff, my poor blog is more neglected than my hair. And that's saying a lot.)

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