Is heterophobia reasonable?

by Cliopatria

The decision issued by the New York State Court of Appeals yesterday in HERNANDEZ v. ROBLES, holding that the state may constitutionally refuse to permit same-sex marriage, is a curious exercise in unreality. The majority is premised generally on the idea that it is up to the legislature to permit or deny same-sex marriage, since marriage cannot in their view be reckoned a fundamental right. (That is to say, the Justices decline to take the heat for overturning the law). Therefore the law should be considered constitutional as long as the legislature has a rational basis for its action. However, therein lies the rub. In attempting to find a semblance of rationality in the denial of the equal rights to same-sex couples inherent in marriage—and straining mightily to avoid openly homophobic language—the plurality opinion relies on extraordinary leaps in logic.

Most glaringly, the court revives the old canard about marriage being essentially and historically about parenting (even as the majority concede that parenthood are overbroad and imprecise as a corollary of gender-opposite marriage, since on the one hand there are many same-sex couples with children, while there are opposite-sex couples that cannot and/or do not choose to have children.) It then hazards the justification that since opposite-sex couples, unlike same-sex couples, can have children spontaneously and unreflectively, the state may have an interest in providing them marriage rights, in the best interests of the children they produce. (As the dissent points out, how they can be encouraged to marry by denying other couples similar rights, and denying their children the social and economic benefits of marriage, is not clear). Aside from the incongruous (and offensive spectacle of the Court offering a compliment to Gay and Lesbian couples by saying that the state could reasonably suppose them sufficiently stable and responsible parents not to need the support of marriage, even as straights are immoral and feckless, the decision recalls the old story about the Southern white legislator who shame-facedly explained to a Black constituent that he believed that white schools should receive greater state funding than their Jim Crow counterparts in order to further civilization, whereupon the African American cynically expressed his whole-hearted agreement—whites, he said, were clearly in far greater need of civilizing than were Blacks.

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Greg James Robinson - 7/9/2006

Thanks for the link. Again, I will have to see more about what Carpenter says about the asserted rational basis. He so far is content to say that marriage is historically about procreation. Ignoring for the moment the fact that the rationales trotted out by the court to find a state interest have generally to do with child-raising and not child-producing, I would seriously contest this point. Marriage and marriage laws, while they do indeed deal with opposite-sex couples, who are also able to procreate, it seems to me their principal function has been the securing and transfer of property, the alliance of families, and the legitimation of sexual intercourse. As has beenn pointed out, there has never been any law against the union of (presumptively)nonprocreative couples. Incidentally, regarding Judge Smith, KC, I hold to the second alternative you propose--that he is dumb and not scheming to bring in a legislative act by reverse psychology. His reliance on "intuition and experience" over scientific evidence regarding the desirability of opposite-sex parents to provide models for children of human behavior is reminicent of the Supreme Court's notorious 1923 BHAGAT SINGH THIND decision, in which the High Court appealed to what it called "the understanding of the common man," rather than scientific theories of race, to decide which country's nationals were to be considered white (and thus eligible for citizenship) and which not. But then, I am still waiting to hear how any opposite couple's ability or interest in marriage is impaired by opening the benefits associated with marriage to same-sex couples.

Robert KC Johnson - 7/9/2006

Dale Carpenter has some good legal analysis of the ruling at Volokh:
http://volokh.com/posts/chain_1152200900.shtml

He's only halfway through (two more posts to come), but I've generally found his arguments on the legal aspects surrounding gay marriage to be most persuasive.

Greg James Robinson - 7/8/2006

My understanding is that under the rules of interpretation (which are what, in reality, courts use), the
"rational basis" standard is pretty low: that is, a law will be assumed to be constitutional if there is even some potentially reasonable cause to support it, and the judges need not look too deeply to discover a cause that can be adduced to support the law. It is no doubt a testament to the extreme lack of a case against same-sex marriage that the Court of Appeals had to use such, well, inventive, reasoning to uphold it. However, whether it is a flaw in legal reasoning that is in question, or a twisted factual analysis to justify an expedient conclusion, is largely irrelevant. As Justice Jackson famously said of the United States Supreme Court, "We are not final because we are infallible, but we are infallible because we are final." So too is the Court of Appeals for New York law. We can only suppose that, if the matter does not become moot in a number of years, either by the New York legislature enacting a same-sex marriage statute or by the state being forced to recognize marriages contracted elsewhere, that the Court of Appeals might reverse itself, as the Supreme Court reversed BOWERS v. HARDWICK in the LAWRENCE case.
Paul Noonan may be right in his argument that the judges ducked the issue to protect the possibility of a law, since the plurality opinion (and oeven more strongly the concurrance) all but invited the legislature to act. However, I am inclined to doubt it, and not principally because such thinking is not the way judges are supposed to do their job. Rather, polls (admittedly by the Empire State Pride Agenda, an interested party) indicate thet 53% of New Yorkers favor same-sex marriage, and the Democratic majority in the Assembly presumably does as well, so a constiutional amendment would be unlikely. Indeed, the very fact that same-sex marriages would be taking place would thereby have created facts on the ground that would have anchored the Court's ruling. The issue of same-sex marriage does remain contested in Massachusetts, but at the time last year that the state legislature voted to reject a constitutional amendment, many legislators and voters pointed out that Gays and lesbians marrying did not cause the sky to fall, and now that it was a fait accompli they saw no strong reason to reverse it.

Jason T. Kuznicki - 7/8/2006

I've commented on this too, as I think there's a fairly serious flaw in the legal reasoning of the plurality opinion. I'm still waiting, though, for a lawyer to check my work:

http://positiveliberty.com/2006/07/did-the-new-york-court-of-appeals-botch-the-rational-basis-test.html

Paul Noonan - 7/8/2006

I think it is quite possible that the majority on the court that ruled against gay marriage (or at least some of the majority) do favor gay marriage, but also realized that a ruling allowing it would be likely to provoke an amendment to the state constitution that would not only overturn a their decision but would also make it impossible for the Legislature to authorize it at a later date.

Robert KC Johnson - 7/8/2006

I agree completely. It's almost as if the majority opinion was secretly authored by someone tasked with coming up with the dumbest possible set of arguments against gay marriage.

In that respect, I wonder if this wasn't the real intent of Judge Smith: i.e., he really favors gay marriage but he didn't want to take the heat, so he present a transparently ludicrous opinion that he hoped would spark the legislature to act. Either that or he just isn't very smart.