Same-Gender Marriages Dispute
Matt sent me a link to an interesting commentary on gay marriage: http://www.thenation.com/doc/20060814/pollitt. About half way down, Katha Pollitt begins her commentary on Judge Robert Smith of the New York State Court of Appeals' defense of the state's right to ban gay marriage on July 6, 2006 (the full 70 page opinion can be found at http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf. On page 6 Smith states:
"[Gay] 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 opposite-sex relationships will help children more."
Pollitt speaks to the stability part of this statement, but I think it is particularly funny that Smith could be interpreted to be saying that people should not be able to get married unless they can have children by "accident or impulse." So should this also mean that those who cannot have children because of infertility, be it natural, age induced, or chosen, not allowed to be married? On page 15, Smith states:
"A person's preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State's interest in fostering relationships that will serve children best."
Does this mean that in order to be married a couple will need to prove that they do not use contraception? Will the state begin observing the sexual practices of dating couples to make sure they are going to procreate? Are those who practice abstinence until marriage going to have to travel out of state to get married? Will married couples who already have children be required to remain sexually active in a procreative manner until the child reaches maturity (and I suppose the parents are supposed to make it clear to the children that they are doing so)? Will any of this really "serve children best"?
On page 6, Smith makes the unproven assertion that "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." Besides Pollitt's observation that it is unlikely for a child to not see both men and women every day, there are two other points worth noting:
- One has yet to define what model men and women are.
- He completely ignores the fact that gay family units already exist.
On the first point, if one were really to insist that children must see model men and women every day, there should probably be laws or even a constitutional amendment defining what that means. For instance, should we return to the days when model women were stereotypically barefoot and pregnant in the kitchen? Should men be required to either start a farm and throw hay bales or become lawmakers if they do not like manual labor (the legal system might have to do away with robes, though - they might be considered too feminine)? If the law was to require that children see both model genders every day, should we relocate children from single-parent homes or provide temporary housing when one of the parents is deployed overseas for months at a time?
On the second point, I really have to ask: Is it the stability of the children's lives that is really of concern here? By forbidding gay marriage and the legal protections that come with marriage, a child's stability is more likely to be in jeopardy should something happen to one of the parents. To the contrary: If a gay couple wants or has children, their lives would likely be more stable if they were bound by the same rights and responsibilities as heterogeneous couples.
Smith does try to soften the blow by admitting on page 9:
"It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind."
He then gives several examples of the legal precedent for the status quo. Legal precedent is important, of course, and the idea that laws should not change unless there is a good reason is important for legal stability. However, precedent does not mean that laws don't change. The history of voting rights in the US is a good example:
- 1787 - The Constitutional Convention could not agree on national voting rights, so they left it up to the states. Most states only allowed free, white males who owned property to vote (<5% of the population was eligible to vote in 1800).
- 1807 - The four states that had allowed women to vote in the past rescinded those rights by this year.
- 1856 - Property restriction finally removed from all states.
- 1867 - 14th Amendment extends citizenship (not voting rights) to black males, but explicitly excludes women of all races (Native Americans, Asians, and Mexican Americans are still not granted citizenship).
- 1870 - 15th Amendment allows black men to vote.
- 1920 - 19th Amendment allows women to vote.
- 1924 - Native Americans allowed to vote (not all state-level laws overturned until 1948).
- 1966 - Voting Rights Act passed, removing several voting restrictions, including race.
- 1970 - Voting age reduced to 18. (source: http://www.crmvet.org/info/votehist.htm).
The points is that after 1807, each progressive step involved overturning the status quo. Just because something has commonly been done a certain way does not mean that it is right (it is a fallacy of logic to argue so). Even beyond that, in the same sentence, Smith admitted that homosexuals have been treated unjustly through the history he has in mind. Is it that unjust history that should continue to dictate the status quo?
There is, in fact, legal precedent to consider. Today there are four countries that recognize same-gender marriages and 12 more that have legal recognition of same-gender partners (http://www.aneki.com/gay_marriage.html). In the United States, Massachusetts recognizes same-gender marriages and six more states include them under domestic partnership laws (http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States). Smith is undoubtedly aware of these cases.
There are likely more flaws to point out in this opinion, but the bottom line is that there are no legal or philosophical arguments of substance presented that would justify a continued ban on same-gender marriages. The opinion Smith presents seems carelessly presented, and if were acted on to the letter would probably cause incredible family upheaval. If the courts are concerned about protecting the stability of children's lives, then protecting their parents, regardless of their genders, is at least part of that equation.