Too Good for Marriage
By KENJI YOSHINO,
OP-ED CONTRIBUTOR, NYTimes on the Web, July 14, 2006
| |
 |
| |
Thomas Porostocky |
New Haven -- LAST week, New
York’s highest court voted 4-to-2 that a legislative ban on same-sex marriage
did not violate the state Constitution. In doing so, it added to the
patchwork of state rulings on the issue, including those of Indiana and Arizona
(which similarly upheld legislative bans) and Massachusetts (which struck down a
legislative ban).
What’s noteworthy about the New York decision, however, is that it became the
second ruling by a state high court to assert a startling rationale for
prohibiting same-sex marriage — that straight couples may be less stable parents
than their gay counterparts and consequently require the benefits of marriage to
assist them.
The critical question, expressed in a plurality opinion by three members of the
New York court, is whether a “rational legislature” could decide that the
benefits of marriage should be granted to opposite-sex couples but not to
same-sex couples. The opinion then answered in the affirmative with two
different arguments. While both related to the interests of children, they
differed significantly in vintage and tone.
The more traditional argument stated that the Legislature could reasonably
suppose that children would fare better under the care of a mother and father.
Like most arguments against gay marriage, this “role model” argument assumes
straight couples are better guides to life than gay couples.
And like other blatantly anti-gay arguments, it falls apart under examination.
In a decision last month in a case concerning gay foster parents, the Arkansas
Supreme Court found no evidence that children raised by gay couples were
disadvantaged compared with children raised by straight couples.
But the New York court also put forth another argument, sometimes called the
“reckless procreation” rationale. “Heterosexual intercourse,” the
plurality opinion stated, “has a natural tendency to lead to the birth of
children; homosexual intercourse does not.” Gays become parents, the
opinion said, in a variety of ways, including adoption and artificial
insemination, “but they do not become parents as a result of accident or
impulse.”
Consequently, “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.”
To shore up those rickety heterosexual arrangements, “the Legislature could
rationally offer the benefits of marriage to opposite-sex couples only.”
Lest we miss the inversion of stereotypes about gay relationships here, the
opinion lamented that straight relationships are “all too often casual or
temporary.”
When an Indiana court introduced this seemingly heterophobic logic last year in
upholding a state ban on same-sex marriage, I thought it was a cockeyed
aberration. But after both New York City and New York State presented
similar logic in oral arguments, and the court followed suit, I began to
understand the argument’s appeal: it sounds nicer to gays.
It also sounds more desperate. New York’s ban on same-sex marriage is
based on provisions enacted in 1909. It is preposterous to suggest the
Legislature promulgated and retained the law because it believed gays to be
better parents. Moreover, as New York’s chief judge, Judith Kaye, pointed
out in her dissent, even if marriage were a response to the dangers of “reckless
procreation,” excluding gay couples from marriage in no way advances the goal of
responsible heterosexual child-rearing. “There are enough marriage
licenses to go around for everyone,” Judge Kaye noted.
This is not the first time courts have restricted rights with a flourish of fond
regards. In 1873, the United States Supreme Court upheld an Illinois
statute prohibiting women from practicing law. Concurring in that
judgment, Justice Joseph Bradley observed that the “natural and proper timidity
and delicacy” of women better suited them to “the noble and benign offices of
wife and mother.”
Hostile rulings delivered in friendly tones can take longer to overturn, as
evidenced by the century that passed before members of the Supreme Court
reversed their thinking about women and, in a 1973 opinion in a sex
discrimination case, recognized that confining women in the name of cherishing
them put them “not on a pedestal, but in a cage.”
We should not need a century to unmask the “reckless procreation” argument as a
new guise for an old prejudice. The “reckless procreation” argument sounds
nicer — and may even be nicer — than the plainly derogatory “role model”
argument. But equality would be nicer still.
Kenji Yoshino,a professor at Yale Law School,is the author of
“Covering: The Hidden Assault on Our Civil Rights.’’
|
