No Gay Marriage In New York

That does not have much to do with “Alabama Law and Society” but this is my blawg, so I’ll post on whatever I want.

The opinion is here.

The court starts out fine, correctly identifying the issue as whether or not the state is justified when, solely because of sexual orientation, it denies to couple B benefits it gives to couple A. 

It is undisputed that the benefits of marriage are many. The diligence of counsel has identified 316 such benefits in New York law, of which it is enough to summarize some of the most important: Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions.

Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.

The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples.

The court does jump the gun, though, in that last sentence. The big issue in these cases is whether to review the discrimination under “strict scrutiny” or “rational basis.” The former requires that the discrimination be narrowly tailored to achieve a compelling government interest and the state has the burden of proof on these points. The latter requires the plaintiff to prove there is no rational reason for the discrimination. Obviously, the latter is much more state-friendly than the former.

For all intents and purposes, settling on rational basis ends the case. The plaintiffs will have to prove there was NO reason for the distinction. Not that the actual reason is a bad reason, but that there is no conceivable reason. The court itself says:

Rational basis scrutiny is highly indulgent towards the State’s classifications. . . Indeed, it is “a paradigm of judicial restraint”

Here, the court settles on rational basis. I do not find that part of the opinion persuasive. Legislation interfering with fundamental rights gets strict scrutiny, and there is a whole line of Scotus cases on the fundamental nature of marriage, privacy and sexual rights. In my mind, the situation here fits neatly, even if not necessarily, into those cases. Read the dissent for the full argument.

So, as the court said, the question is whether the state had a rational reason for denying marital benefits to gay couples. The court finds two possible reasons. This is where the opinion goes from “not really correct, but not patently absurd, either” to “oh my gosh, I’m going to pee in my pants from laughing so hard.”


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.

You read it correctly. The court says that the legislature could (not did) conclude that children are in more danger from unstable heterosexual relationships than from homosexual relationships and then decide fix the situation by only encouraging heterosexual marriages. 

O.K. If heterosexual couples are likely to have children in unstable relationships, that is certainly reason to encourage marriage among heterosexual couples. But, as the dissent points out, the issue is the exclusion of gay couples from marital benefits. How does excluding gay couples make heterosexual marriages more stable? It does not. It can not. Rational, indeed.

The second reason is a bit better:

The Legislature could rationally believe that it is better, other things being equal,for children to grow up with both a mother and a father. 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.

Right, besides the fact that this statement blatantly encourages discrimination on the basis of sexual orientation, I though it was the “rational basis” test, not the “intuition and experience” test?

The plaintiffs respond with scientific studies showing that the court’s intutition and experience is wrong. Undeterred, the court answers:

We’re not brainiacs on the nerd patrol. We’re not members of the factinista. We go straight from the gut . . . . That’s where the truth lies, right down here in the gut. Do you know you have more nerve endings in your gut than you have in your head? You can look it up. I know some of you are going to say “I did look it up, and that’s not true.” That’s ’cause you looked it up in a book.

Next time, look it up in your gut. I did. My gut tells me that’s how our nervous system works. Every night on my show, the Colbert Report, [in this decision] I speak straight from the gut, OK? I give people the truth, unfiltered by rational argument. I call it the “No Fact Zone.”

Oops, that was actually someone else. Agreeing with Colbert in spirit, if not in the exact words, the court responded to the facts thusly:

To support their argument, plaintiffs and amici supporting them refer to social science literature reporting studies of same-sex parents and their children. Some opponents of same-sex marriage criticize these studies, but we need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same sex and opposite-sex households.

On the one hand the legislature has “intuition and experience” while on the other it had it has empirical evidence. According to the court, so long as the empirical evidence is something less than proof beyond doubt, the legislature acts rationally when it chooses intuition and experience. To summarize: Truthiness prevails in New York.

Bad decision; this is up there with Wickard v. Filburn as far as results oriented reasoning goes. That said, here are some other thoughts.

One, regardless of whether it is constitutional to deny marital benefits to gay couples, there is no non-religious reason for doing so. The ones offered in the majority opinion are ridiculous. To see the rest exposed, read the dissent.

Two, on the whole, gay marriage supporters should be glad that the plaintiffs lost. A ruling in their favor would have been correct and cause for celebration, but also have re-ignited the opposition. We’d just hear more about the need for federal and state constitutional amendments. At this point, I’m willing to make that trade.  

Three, how ’bout those liberal, activist, judicial tyrants.

Four, get more, and probably better, commentary here, here, and here.

Explore posts in the same categories: Goobers, National Politics, Not Alabama

2 Comments on “No Gay Marriage In New York”

  1. […] I wasn’t going to comment on last week’s Arkansas Supreme Court decision striking down the state’s prohibition of gay foster parents. But now I want to compare it to yesterday’s display of truthiness in New York. […]

  2. […] are the same, even if adjusted for each state in which they are made. (See, e.g. cases from New York, Arkansas, New Jersey). Those in favor of gay marriage argue, correctly, that equal protection […]

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