Monday, July 17, 2006

Interesting analysis of the New York Appeals Court ruling on gay marriage...

My previous comments are here, in case you'd forgotten...

Yale law professor Kenji Yoshino shares thoughts on the decision here.

Quoting from the article...

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.


First, Dr. Yoshino points out that the New York Court of Appeals majority brought out the tired old canard that children do best in a home with a mother and a father, and that this is sufficient justification to keep marriage an exclusively heterosexual arrangement. "It's best for the kids." As Dr. Yoshino points out, this argument is preposterous. In Arkansas, of all places, the high court there concluded there's no such evidence that children do worse with parents in a homosexual relationship as opposed to a heterosexual relationship.

As I discussed here.

Then, Dr. Yoshino brings up another argument that the New York court majority raised, which I confess I missed. Apparently, it's been raised in Indiana, too.

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.”

So the New York Court of Appeals is essentially saying, "Gay people don't have kids by accident. Couples, gay and straight, who plan to have kids are more likely to raise their kids well than are couples who don't plan to start families, since they're more mature emotionally to do so. Since heterosexual couples DO sometimes have kids by accident, heterosexual couples need the protections of marriage to make sure kids of straight couples are raised as well as are kids of gay couples. You get that, gay couples? You guys are actually BETTER parents than straight couples are, so we need to keep you from being married to level the playing field. So really, we're paying you guys a compliment."

The argument is brilliant in its absurdity, since it contradicts the Court of Appeals' other (ridiculous) argument that kids in heterosexual households do BETTER than kids in homosexual households.

As I said before in my previous post, the New York Court of Appeals argued that homosexual marriage was subject to the "Rational Basis" argument and not "Strict Scrutiny." Here, as Dr. Yoshino so brilliantly points out, the New York Court Of Appeals doesn't even bother with a rational argument to justify its "rational" basis.

Another interesting point is that the New York Court Of Appeals is still falling back on the old caveman argument that marriage shouldn't be about consenting adults' committment to each other or love or anything like that; that marriage should only be about raising kids.

I could reduce the New York Court Of Appeals' arguments to their most absurd conclusions, but they're already pretty absurd.

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