ny state supreme court ruling

From the decision:

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 mains 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 oppositesex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

so if i understand this, they’re saying:

(a) babies need stability
(b) straight-people-sex is the dominant means of procreation
(c) straight people sexual relationships are too casual
(d) to ensure stability for baby-making partnerships, the legislature established the institution of marriage
(e) this doesn’t apply to gays because
(1) queer relationships don’t make babies by accident
(2) if a gay couple has babies, its planned, and the relationship is already stable

going that way, i think, is a kind of scorched-earth victory. it certainly deprives marriage of meaning, if thats all it is. imagine if “Four Weddings and a Funeral” adopted this attitude to marriage. and by leaving aside the richness of marriage, the court opinion really fails to meaningfully enagage the debate. which is sad, because thats one of the primary functions of the courts.

you have to wonder about the level of scrutiny employed here. as determinations of fact by the legislature, they don’t survive critical thinking. there are to many “but what about…” moments. but its not even that the NY leg said this, the court is inventing justifications. “the legislature could have found…”. this is several layers below the weakest scrutiny in conlaw. its bad jurisprudence.

instead, one could imagine the court demanding the legislature give a justification for the law, one that passes at least intermediate scrutiny, forcing the legislature on the record, on the issue. my bet is this would inevitably open the way for court-remedy civil unions (i honestly don’t understand objections to civil unions). and if we could get some thoughtful people to discuss this, honestly, i’d like to think a solution would present itself.


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