NY’s Court of Appeals just handed down its no-same-sex-marriage decision, holding that denying marriage licenses on the basis of gender to same-sex partners does not violate New York’s Constitution. In my opinion, this is a big setback for equal protection and individual autonomy. We had a certain momentum going forward in terms of courts accepting the logic, and this decision slows that down. The decision is also remarkably retrograde in some of its reasoning.
I’ll be able to go through the case later on, but for now I’m including some initial responses to the excerpts posted in the NYT article. Cheesy, I know, but I was angry on reading the article, and wanted to get some response out there. The opinion is 70 pages long so it will take a bit longer. My comments should be read more as rant than legal analysis, and they will be evolving Thursday 7/6-Sunday 7/9.
“Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals,” Judge Smith wrote in his 22-page opinion. For example, he wrote, it could be argued that children benefit from being raised by two natural parents, a mother and a father, rather than by gay or lesbian couples.
Frankly I don’t think it is rational at all for some people in the name of “the State” to try to make decisions about the private sexual and affectional relationships of other people.
In the majority opinion, Judge Smith said that because same-sex marriage was not deeply rooted in history and tradition, barring it was not a violation of fundamental rights and liberties.
Ah, the “this is not protected because it is not deeply rooted” argument. A bad argument in Bowers and a bad argument now.
The majority decision argued that any comparison with anti-miscegenation laws was flawed because discrimination against homosexuals has been recognized only recently, while “racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil.”
As is typical with these decisions that try to root something in history they mis-state history. Even a hundred years ago some people (“at first … a few”) recognized that the it was evil to interfere with individual’s sex lives. Emma Goldman. Oscar Wilde.
On the issue of child-rearing, the majority wrote: “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. 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.”
Of course, fucking is only tenuously related to marriage at all: consider the numbers of kids born outside of marriage and those born within marriage but of extramarital liaisons, and all the fucking that doesn’t produce kids at all. And even those kids born “legitimately” within marriage between both their bio-parents are historically not exactly “raised by” that marital relationship. Rather, they’re mostly raised by a community of women: the bio-mom, her mom, her friends, nannies, wet-nurses, and so on. I’m all for men (as a gender) growing up and being daddies and not just sperm donors, but let’s get real: this is not historical reality. The fiction of the heterosexual nuclear love-match couple is about a hundred years old, and the fiction of the heterosexual nuclear love-match couple who jointly raise their kids is not even fifty years old. Don’t try to marginalize *my* family relationships (which, if my partner & I ever get pregnant, will look a lot more like a traditional child-rearing situation than today’s so-called traditional nuclear family) based on your fake history.
“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. 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.”
Ai-yi-yi, because TV and the street and 3 billion fucking living individuals of both sexes, available at any moment and every interaction, doesn’t really create “living models”. wtf.
Married straight people, my partner & I are going to continue to pay extra taxes and extra legal fees to get legal protections for our family. What are you going to do with that extra money from your privileged legal status?
additional commentary: Diane Silver on the NY dissent, and on the opinion, and on Georgia’s anti-SSM decision. (I didn’t bother to comment because, you know, it’s not like I harbored any hopes for Georgia.)
from the dissent:
Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.
Maybe the Court was interested in encouraging bisexuals to abandon their same-sex partners and go straight? Or maybe they adhere to a Kinsey-like notion that most people are bisexual to a greater or lesser extent and therefore everyone needs the iron fist of the State withholding a package of legal and financial benefits to ensure they marry someone with different genitals? I have some other less savory suggestions that I’ll refrain from uttering in this fairly public and identifiably me-space.
This whole “the State must foster the welfare of our children” business — wtf is that? The State now fosters the welfare by reinvigorating the depreciated status of bastardy, apparently.
This isn’t just about our tax statuses. My cousin by marriage just yesterday, here in the glorious state of pro-gay Massachusetts, had her parental rights completely and utterly denied. Had she been the husband of her partner, with whom she jointly participated in alternative insemination, she would have been a legal parent despite the lack of biological connection. Had she been the biological father she would have been a legal parent even if she had only fucked the biological mother once. Even if the biological mom was asleep or drunk or unwilling, she would have been recognized as her son’s legal parent. Instead, my cousin, whose partner of 8 years left her for another woman when their child was 18 months old — a pretty typical story in any relationship — was bereft of the default legal status that would have come to her had the couple been permitted to marry. She has been stripped of her parental rights, and her not-quite-5-yo son has been stripped of access to the woman he has called “Mama” all his life.