The Wrong Answer

by emptypockets

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.

Comments

[emptywheel]

Great post, ~pockets.

As a childless by (mostly, anyway) choice woman, I've been thinking it'd be nice to put together an organized voice of opposite sex couples who think this kind of shitty reasoning is almost as insulting to those of us who don't have kids as to same sex couples who do (or don't). To characterize my marriage as one totally defined by non-existent kids (particularly since, in our case, we did get married precisely to get a legal benefit--immigration rights--that same sex couples are denied) turns me into nothing but a breeder.

[emptypockets]

that's an interesting idea. In its decision the court recognizes 316 benefits of marriage in New York (sounds like a Cosmo cover doesn't it? "Quiz: How Many of Marriage's 316 Benefits Are YOU Enjoying") and ties them all to the idea that "promoting stability in opposite-sex relationships will help children more."

For immigration status I think one can make a legitimate case -- if you DID happen to have children, and your husband were deported, that would be to the kids' detriment. I don't know about the other 315 though, and the court doesn't bother to go through them or to deal with the marriage rights that actually harm the children (if one parent is in uncontrolled debt, for example, wouldn't it be better for the kids if the other parent were not obligated to those debtors?).

And obviously the institution of marriage is fundamentally about love not children (no one sings, "children and marriage go together like a horse and carriage"). A point they ignore completely.

[emptywheel]

The whole thing is just a full of shit way to avoid talking about property rights, IMO. Marriage is, legally anyway, a way for society to stabilize property rights. Yeah, children are part of it too. But the property rights set the foundation for much wider kinds of stability (in couples, in neighborhoods, between families).

[emptypockets]

We are basically recreating Chief Judge Kaye's dissent. She says it well:

Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage--purportedly to encourage other people to procreate. Indeed, the protections that the State gives to couples who do marry--such as the right to own property as a unit or to make medical decisions for each other--are focused largely on the adult relationship, rather than on the couple's possible role as parents. Nor does the plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State's interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage--even apart from the totality of marriage itself--does not independently violate plaintiffs' rights to equal protection of the laws. The breadth of protections that the marriage laws make unavailable to gays and lesbians is "so far removed" from the State's asserted goal of promoting procreation that the justification is, again, "impossible to credit."

She sees it, as we do, as the state denying rights to unmarried couples instead of awarding certain rights to married couples (as the majority saw it). That difference, I think, is something of a dead end. But the fact that the state is going a little nuts with the rights it chooses to associate with marriage, as she points out in the parts I bolded, is unavoidable. It is hard for me to imagine that this argument will not prevail eventually. (But, then, it's hard for me to imagine how it didn't prevail this time, too.) I think at least a subset of marriage rights will soon have to be extended to all, and I don't see how this all-or-none decision can stand.

[sandstone]

good observation emptypockets.. would be good if some of those making these decisions and questions were more aware of the flaws in their thinking..

[Rat]

1) "Intuition and experience" ... "common-sense premise"

Doesn't the court's retreat to such ideas imply a circularity to its reasoning?

Gays have been prohibited from marrying. Thus, it has become "natural" that gays can't marry. Because it is "natural" that gays can't marry, it could be rational for the legislature to prohibit gays from marrying.

The conclusion comes much, much easier when you make it a premise.

2) On the other hand, "rational," as a legal term of art, usually means "what the legislature wants, the legislature gets," i.e. merely conceivably rational. Even with that low bar, though, base animus -- the motivating factor behind these laws -- should get these laws tossed.

[DeanOR]

I think there is a consensus that marriage is good for the people involved and for society. So why not extend the benefits and responsibilities to more people? This is an argument for gay marriage, actually a conservative position since marriage contributes to social stability, but it has nothing to do with consitutionality does it?
Actually, since the world is over-populated maybe we should prohibit heterosexual marriage.

[Katie Jensen]

Anti gay sentiment cannot be discussed without the use of judgments, theory and generalization. There are no facts to support the notion that gay marriage hurts society. Zilch. In fact one could argue that in an over populated society where unbridled procreation would actually harm society, homosexuality offers an effective way to decrease population growth. Contrary to right wing beliefs the truth is that homosexuals do not harm society. Gay marriage encourages human bonding and is good for all of us. It sanctions what we need. The universe always provides what is needed. It's up to us as to whether or not we recognize and harvest the solutions. I am not gay but I absolutely recognize the benefits to society of gay relationships. JWe must move from defense to offense. It's time now.

What a great blog...I have several clients who could benefit from this discussion.

[emptypockets]

Rat, I didn't get into the court's use of the "rational basis" test (mainly because my own legal scholarship is limited to having nearly failed a Con Law course in college) but you are right to point out that it is a very low bar and that the case was in a sense already decided the moment they decided they only needed to find rational basis. My uneducated guess is that even though the logic of this decision is problematic in many ways, its weakest point over time may be that they chose to use the rational basis test rather than heightened or strict scrutiny.

I didn't really follow their justification for it except that they say this is not an instance of sex-based discrimination because the law applies equally to male and female homosexuals, and that discrimination by sexual orientation is apparently not demanding of heightened or strict scrutiny based on some prior opinion. (That precedent sounds extremely dubious to me and if anyone can explain this part of the decision further I'd be grateful.)

On that note, the Times article pointed out that the majority opinion used the language "sexual preference" rather than "sexual orientation," suggesting an extremely antiquated view of gay rights.

[Rat]

E'pockets, I'm not a NY law rat, but the federal Equal Protection standard may be useful enough for discussion purposes -- and it's an odd standard. The party line, recited by SCOTUS, is that sexual orientation/preference gets no heightened scrutiny as race (strict scrutiny) and gender (intermediate) do. But in practice, the Court has applied what has been called "covertly heightened scrutiny" or "rationality with bite." Under this standard, the Court recites the boilerplate rationality language then, nevertheless, invalidates the rule at issue. In such a case, the Court is suspicious that something else is at work, such as animus towards a particular group. And hating a group -- whether they're hippies, mentally challenged, or gay (yes, these are actual cases) -- doesn't give rise to a legitimate purpose. Similarly, the rational link won't be found if the government is acting "arbitrarily" or "irrationally." However, the covert aspect of this standard means that it's really just a tool the court can use when it likes -- at the precise moment the court is denying that it's doing anything of the kind.

So, some arguments in this area are: 1) you can't ban gay marriage just because you hate gay people; 2) it's arbitrary to ban marriage based on gender (unlike, say, age, where a minor is incapable of consenting to the union); and 3) it's simply irrational to say two consenting adults who love each other can't be married.

Note that your final point -- the distinction between "sexual preference" and "sexual orientation" -- likely has legal significance. Race and gender are "immutable" characteristics. If the court accepts that sexual orientation is immutable too, then that helps make the case for heightened scrutiny. This is because it's considered especially unfair to draw lines when people can't do anything about the cause of the classification. That is, blacks can't choose to become white, and women can't choose to become men. But if being gay is a mere choice, a preference, then it's less suspect to classify on that basis because the gay person can simply choose to become straight and avoid the gay marriage ban. So, the linguistic choice can be seen as an example of Lakoffian framing (however out of fashion that idea is), because framing the issue in terms of preference is part of what permits the odious result.

In the end, I think gay marriage bans are about hatred for gay people -- and the law recognizes that this is completely illegitimate. I'm just waiting for the courts to catch up.

[emptypockets]

Rat, thanks for that, very helpful. It does look like they are claiming to use the SCOTUS decision to justify rational basis, although they do it in an interesting way. In a single paragraph, they hugely restrict the level of Constitutional protection that exists for gay rights generally and also put in a loophole to only make it apply to gay marriage.

However, the legislation does confer advantages on the basis of sexual preference. Those who prefer relationships with people of the opposite sex and those who prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage. This case thus presents the question of what level of scrutiny is to be applied to legislation that classifies people on this basis. We held in Under 21 that "classifications based on sexual orientation" would not be subject to strict scrutiny, but left open the question of "whether some level of 'heightened scrutiny' would be applied" in such cases (id. at 364).

We resolve this question in this case on the basis of the Supreme Court's observation that no more than rational basis scrutiny is generally appropriate "where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement" (City of Cleburne v Cleburne Living Ctr., Inc., 473 US 432, 441 [1985]). Perhaps that principle would lead us to apply heightened scrutiny to sexual preference discrimination in some cases, but not where we review legislation governing marriage and family relationships.

So just as I'm reading through and saying "oh shit, did they just say anti-gay discrimination is ok as long as you can come up with some sham rationale other than that you hate gays?" they go on and limit it only to marriage.

I'm noting also that when they quote the Under 21 decision that explicitly left open the possibility of heightened scrutiny they were referring to "sexual orientation" but throughout the rest of this decision (and especially this paragraph) they refer to a "preference": those who prefer relationships with the opposite sex. It seems like a lot of the bad decision here follows from their initial misguided view of sexual orientation as something at the level of liking smooth vs. chunky peanut butter, rather than being something at the level of skin color.

[telly]

I'm waiting for one of these courts to say, "It's important that children have parents of both sexes in the home. Therefore, no one with children can get divorced."

Every single argument about how marriage is so sacred and shouldn't be sullied falls apart when divorce is legal and easy to get. Not that I actually want it banned-- just for courts to acknowlege that in the era of divorce, it's absurd to talk about the state having a vested interest in determining how families are composed. No-fault divorce means that the state thinks it's okay for children to grow up in homes with parents of only one gender-- after all, any child of a single mom does that, and most of them turn out just fine. So of course do children of gay couples.

The courts never seem to address reality-- that many people marry and don't have children, that there's no fertility test required or any law that mandates that couples have children, or that parents divorce all the time, with the blessings of the state.

[emptypockets]

telly, I see your points and share your frustration. To be fair to this ruling, though, the court was not using that kind of language about marriage being sacred, or even anything that hints at it. Just the opposite in fact -- they were reducing marriage to a very small point, something like a tax break (which of course it partly is), and asking whether the state had a rational basis for giving that benefit to one group and not another. If you view marriage as just a tax break, it is easier to say that it's an incentive for people to get married so that their kids grow up in a stable home (the argument that this incentive isn't needed for same-sex couples is, er, problematic, but there it is).

But the really weak point, as someone pointed out to me, is that viewing marriage as an incentive for couples to stay together for the children is a completely post-hoc justification for marriage. Given that this decision was rooted partly in the idea that marriage is a very old tradition and same-sex marriage is a relatively recent idea, it is just crazy that they also argue that marriage is a tool for the Legislature to encourage heterosexual couples to stay together for the children. The idea of having kids out of wedlock (or getting divorced), until recently, carried with it a humongous social stigma. Trying to further discourage it was, I think, not in the Legislature's mind in 1909 when the current Domestic Relations Law was written -- it was not necessary to discourage it since it was already viewed with contempt. For them to argue that marriage is an incentive for couples to stay together when they're having children is to look selectively at the social changes of recent years while explicitly ignoring the gay rights movement on the grounds that it's only a recent development.

[Mimikatz]

Solemnizing a relationship through marriage (civil or religious) provides both a social sanction and a social structure for the couple. The one thing studies do show is that people in committed relationships generally fare better on all sorts of measures of social, mental and physical well-being.

Marriage provides stability to society as well, far beyond the raising of children. This is why, as DeanOR said, the truly conservative argument (and IMHO the best one) is that encouraging gays to have sanctioned unions is good both for gays and for society even if there are no children involved.

But hostility towards gay marriage is a much deeper thing. In part it is due to hostility toward gays (largely some combination of personal insecurity or self-doubt about sexuality and the "ick" factor about the unknown). But as someone observed after the 2004 election, for many people who are economically and socially insecure, their marriage is one thing that they can point to as a sort of validation. And to extend that to gays is, in their minds, to devalue one of the few things they do have. This is why they say that extending marriage to gays undermines traditional marriage. They really mean it devalues it, at least in their eyes, because it makes them less special.

I think this reasoning really does underlie the tortured rationales that courts come up with to explain why the panoply of privileges given to married couples can'e be extended to gays. Precisely because marriage is good for both couples and society it should be open to same-sex couples, and it is a matter of fairness that it be available. There is no getting around that. The only reason it isn't is hostility towards gays. Even if the Justices don't personally buy into that, they know a great many people (but fewer and fewer) do. The rest is just window-dressing.

At this point I'd settle for civil unions that would equalize tax and inheritance and other property issues, and let the greater acceptance come in time. Maybe the real long-term strategy should just be to make people more economically secure so that they aren't always looking for scapegoats. One more reason the Dem platform, such as it is, makes good sense.

[Publicus]

"Common" sense. Conventional "wisdom". Both oxymorons.