First published in Between the Lines on Thursday July 13, 2006.
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 willcontinue to be true. The Legislature could also find that such relationships are all too often casual or hitemporary. 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.