A little over a month ago, I wrote that the New York State Court of Appeals was asking The Wrong Question about same-sex marriage. During arguments, they focused on whether children of opposite-sex parents turn out better than children of same-sex parents. That question, I said, was wrong because it judges individuals based on the class to which they belong. It is not different than asking if children of Christian parents turn out better than children of Jewish ones, or children of Democrats turn out better than children of Republicans. Not surprisingly, having asked the wrong question, this week the Court of Appeals arrived at the wrong answer.
They concluded that "there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex" (PDF), citing in particular the notion that children of opposite-sex parents turn out better. Confusingly, the justices go on to describe these "rational grounds" in terms of mystic sensations, anecdotes, and unsubstantiated dogma:
"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...
Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home."
Intuition, experience, and common sense are dark-age surrogates for reason. Yet the court rejects social scientific studies because they have been "limited" and "do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households." Why the state is not asked to show "beyond doubt" that opposite-sex parents are better, I don't know. In the absence of compelling evidence, I always take what evidence is available. The court rejects inconvenient facts and yields to intuition and dogma.
The court further explains that opposite-sex couples have unplanned children, and the state has a rational interest in keeping those flighty heterosexuals together. By comparison, they say, if same-sex couples have children it is always through planning, and the state does not need to give them an incentive to stay together -- same-sex parents are, by definition, responsible and committed. (Yet unfit parents.)
It's an interesting argument, and one I had not thought about before. An obvious rejoinder is that marriage then should not be available to the elderly or the sterile (or, as the court notes, prisoners). The court replies that is too complicated to figure out which opposite-sex couples can conceive -- easier just to allow them all to marry. But that tack misses the point. By the court's reasoning, it seems that any set of privileges bestowed on opposite-sex married couples would be justified -- driver's licenses, say, or the use of public parks. They make no attempt to weigh the state's supposedly-rational interest against the burden it puts on couples not allowed to marry. To discuss that, they seem to think, would be for the court to engage in social engineering.
And legislational social engineering is something that they take pains to show they are not doing, throughout the decision. "We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong," they write. "We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made." It is difficult for me to understand, though, how validating evidence-free bias against the fitness of same-sex parents, or allowing a weak state interest to trump the rights of a minority group, is anything but activist social engineering.