Too Good for Marriage - New York Times
The New York Times

July 14, 2006
Op-Ed Contributor

Too Good for Marriage
By KENJI YOSHINO

New Haven

LAST week, New York's highest court voted 4-to-2 that a legislative ban on
same-sex marriage did not violate the state Constitution. In doing so, it
added
to the patchwork of state rulings on the issue, including those of Indiana
and Arizona (which similarly upheld legislative bans) and Massachusetts
(which
struck down a legislative ban).

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.

The critical question, expressed in a plurality opinion by three members of
the New York court, is whether a "rational legislature" could decide that
the
benefits of marriage should be granted to opposite-sex couples but not to
same-sex couples. The opinion then answered in the affirmative with two
different
arguments. While both related to the interests of children, they differed
significantly in vintage and tone.

The more traditional argument stated that the Legislature could reasonably
suppose that children would fare better under the care of a mother and
father.
Like most arguments against gay marriage, this "role model" argument assumes
straight couples are better guides to life than gay couples.

And like other blatantly anti-gay arguments, it falls apart under
examination. In a decision last month in a case concerning gay foster
parents, the Arkansas
Supreme Court found no evidence that children raised by gay couples were
disadvantaged compared with children raised by straight couples.

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."

When an Indiana court introduced this seemingly heterophobic logic last year
in upholding a state ban on same-sex marriage, I thought it was a cockeyed
aberration. But after both New York City and New York State presented
similar logic in oral arguments, and the court followed suit, I began to
understand
the argument's appeal: it sounds nicer to gays.

It also sounds more desperate. New York's ban on same-sex marriage is based
on provisions enacted in 1909. It is preposterous to suggest the Legislature
promulgated and retained the law because it believed gays to be better
parents. Moreover, as New York's chief judge, Judith Kaye, pointed out in
her dissent,
even if marriage were a response to the dangers of "reckless procreation,"
excluding gay couples from marriage in no way advances the goal of
responsible
heterosexual child-rearing. "There are enough marriage licenses to go around
for everyone," Judge Kaye noted.

This is not the first time courts have restricted rights with a flourish of
fond regards. In 1873, the United States Supreme Court upheld an Illinois
statute
prohibiting women from practicing law. Concurring in that judgment, Justice
Joseph Bradley observed that the "natural and proper timidity and delicacy"

of women better suited them to "the noble and benign offices of wife and
mother."

Hostile rulings delivered in friendly tones can take longer to overturn, as
evidenced by the century that passed before members of the Supreme Court
reversed
their thinking about women and, in a 1973 opinion in a sex discrimination
case, recognized that confining women in the name of cherishing them put
them
"not on a pedestal, but in a cage."

We should not need a century to unmask the "reckless procreation" argument
as a new guise for an old prejudice. The "reckless procreation" argument
sounds
nicer - and may even be nicer - than the plainly derogatory "role model"
argument. But equality would be nicer still.

Kenji Yoshino,a professor at Yale Law School,is the author of "Covering: The
Hidden Assault on Our Civil Rights.''

Posted by Miriam V.