July 14, 2006

New York top court uses accidental babies to justify
denying vows to same-sex couples

by Eric Resnick

Albany, N.Y.--In a ruling reminiscent of the now-overturned Bowers v. Hardwick decision upholding gay sex prohibitions, New York�s highest court said gay and lesbian couples do not have a constitutional right to marry because heterosexual couples sometimes have accidental babies.

The 4-2 decision on July 6 has been condemned in all but the most anti-gay quarters for being both homophobic and lacking any legal credibility.

The National Lawyers Guild said they are �particularly troubled by the court�s willingness to put a judicial imprimatur on bigotry.�

A New York Times editorial said, �the ruling involved some twisted logical reasoning.�

Gay law professor Arthur S. Leonard called the majority opinions �disgracefully short on rational analysis, long on sloganeering, trading in stereotypes about accidentally procreating heterosexuals.�

�One is left to conclude,� continued Leonard in his Gay City News article, �that they understand what is left unsaid in their opinions--that the continued denial of marriage rights to same-sex couples has everything to do with religious and emotional sentiments and moral judgments, exactly what the Constitution does not allow as justifications for discriminatory legislation and precious little to do with rationality.�

The decision is �a huge step backward and a harsh slap in the face,� said National Black Justice Coalition director H. Alexander Robinson.

Freedom to Marry director Evan Wolfson, one of the leading legal authorities on marriage, found a silver lining. The �appalling, feeble and retrograde decision,� he said, did prove that there is no longer any real basis in law to deny marriage to same-sex couples. Out of prejudice, the court was left to make ones up.

�That�s exactly it,� said Wolfson, adding that since the U.S. Supreme Court�s Lawrence v. Texas decision three years ago overturned Bowers v. Hardwick and struck down laws against gay sex, there�s no real justification left.

The 1986 Bowers ruling was decried for relying on what it called �millennia of moral teaching� to uphold those laws.

Court was quick to rule

The New York ruling was handed down only weeks after the court heard oral arguments on May 31. In contrast, New Jersey�s top court has been mulling same-sex marriage since February, and Washington state has waited over a year for a marriage ruling from its highest court. Both decisions are expected at any time.

New York�s decision consists of three separate opinions totaling 70 pages. It is the final word on four cases consolidated together, involving 44 same-sex couples who were unable to obtain marriage licenses.

The plurality opinion was written by Associate Judge Robert S. Smith and was joined by Associate Judges Susan P. Read and George B. Smith.

New York high court judges are appointed by the governor for 14-year terms.

Robert Smith and Read were appointed by Republican Governor George Pataki. Smith�s term expires in September, and he is looking to be reappointed. George Smith was appointed by Democratic former Governor Mario Cuomo.

Pataki, who is expected to get into the 2008 presidential race as a Republican, praised the decision.

�I am satisfied that today�s decision by the state�s highest court to uphold our position that marriage is between a man and a woman is the right one,� said Pataki.

Concurring with the Robert Smith opinion in a separate one written by Associate Judge Victoria A. Graffeo, also a Pataki appointee, also joined by George Smith.

Parents by �accident or impulse�

The two opinions which comprise the majority do not say that same-sex marriage is against the state constitution.

Rather, they say that the state legislature has the right under the constitution to limit marriage to different-sex couples, and that only the legislature has the ability to change that.

However, the justifications they give are, as lesbian Detroit News court analyst Deb Price put it, �bizarre.�

The two opinions differ only in their rationale of why denying marriage licenses to same-sex couples is not �intentional discrimination,� and thus not a violation of equal protection.

Both argue heavily that the state has an interest in denying same-sex couples marriage: protecting children.

Smith wrote, �We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.�

�Heterosexual intercourse has a natural tendency to lead to the birth of children,� wrote Smith, �homosexual intercourse does not.�

So, the majority reasons, in order to persuade heterosexuals to protect those children, it is in the state�s interest to create marriages with benefits.

Smith opines that that the child-producing heterosexual relationships are �all too often casual or temporary.�

�[The legislature] could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born.�

By contrast, Smith wrote about 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.�

Therefore, according to Smith, �The legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples.�

No mention was made of protecting the children of same-sex couples.

�Intuition and experience�

Then Smith offers 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. 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.�

That comment drew a swift retort from National Gay and Lesbian Task Force director Matt Foreman, who said, �When a judge has to resort to �intuition and experience� rather than legal precedent and fact, you know you�re in deep trouble.�

Smith separates the discrimination created by denying marriage to mixed-race opposite-sex couples and discrimination against gay and lesbian couples by saying that the former is �a revolting moral evil.�

Smith called anti-miscegenation laws �anti-black legislation,� then says �Those who prefer relationships with people of the opposite sex and those who prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage,� hence, there is no discrimination.

Lowest legal standard was used

Both the Smith and Graffeo opinions agree that marriage is a �fundamental right.�

In order to deny someone a �fundamental right,� the state must show some reason, measured by a legal standard, that makes it possible. In this case, both judges chose the �rational basis� standard, the lowest possible one, usually used for things like requiring a license to drive a car.

Graffeo wrote, �There is no basis to conclude that, when the legislature adopted the domestic relations law more than a century ago, it contemplated the possibility of same-sex marriage, much less intended to authorize it.�

Graffeo supports that reasoning by noticing that married parties are known on official papers as �bride� and �groom.�

�New York�s marriage laws are part of a longstanding tradition with roots dating back long before the adoption of our state constitution,� wrote Graffeo.

Neither gender can marry same sex

Graffeo supports her �rational basis� argument by saying, �the marriage laws are neutral [under this standard] insofar as gender is concerned because they treat all males and females equally--neither gender can marry a person of the same sex and both can marry a person of the opposite sex.�

�Individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual,� said Graffeo. �Regardless of sexual orientation, any person can marry a person of the opposite sex.�

Graffeo does concede that this has a �disparate impact on gays and lesbians,� but says that�s acceptable because the marriage law barring same-sex marriage was �enacted without an invidious discriminatory intent . . .�

Associate Judge Albert M. Rosenblatt, also a Pataki appointee, recused himself from the case because his lesbian daughter is an attorney in California who has worked on marriage equality there.

A strong dissent

Chief Judith Judith S. Kaye and Associate Judge Carmen Beauchamp Ciparick, both Cuomo appointees, strongly dissented.

Authoring the dissent, Kaye lambasted the majority for their use of �rational basis� instead of the high standard of �strict scrutiny� for denying the fundamental right of marriage.

�The court misapprehends the nature of the liberty interest at stake,� wrote Kaye. �An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.�

�Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them,� wrote Kaye.

�The record is replete with examples of the hundreds of ways in which committed same-sex couples and their children are deprived of equal benefits under New York law,� Kaye continued. �Same-sex families are, among other things, denied equal treatment with respect to intestacy, inheritance, tenancy by the entirety, taxes, insurance, health benefits, medical decision-making, workers� compensation, the right to sue for wrongful death, and spousal privilege. Each of these statutory inequities, as well as the discriminatory exclusion of same-sex couples from the benefits and protections of civil marriage as a whole, violates their constitutional right to equal protection under the law.�

Ruling harms welfare of children

Kaye also attacked the majority�s use of procreation as the basis for marriage, concluding �no one rationally decides to have children because gays and lesbians are excluded from marriage.�

�The state plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it,� wrote Kaye.

Kaye also took issue with the majority�s punting the matter to the legislature.

�It is uniquely the function of the judicial branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation,� wrote Kaye. �The court�s duty to constitutional rights is an imperative of the separation of powers, not its enemy.�

�I am confident that future generations will look back on today�s decision as an unfortunate misstep,� Kaye concluded.

Now to the legislature

The majority left any changes to be made to the legislature, and marriage equality activists have begun the process of changing the law.

Republican New York City mayor Michael Bloomberg may emerge as its leader.

�I will personally campaign to change the law,� he told the Times.

�Keep dancing,� said Wolfson. �If we make our case for equality directly to our fellow Americans, we�ll win.�

Foreman added, �As for the New York marriage opinion, the only good news is that the decision is so pathetic we won�t need to worry about thoughtful judges in other states relying on it--they�d be too embarrassed. And that�s exactly the way the majority of the New York Court of Appeals should feel the rest of their lives.�

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