| Yawning
Bread. July 2006
Gay marriage defeated in New York court
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Gay marriage suffered a defeat at the hands of the New York Court of
Appeals (the state's highest court) earlier this month. In Hernandez v
Robles, the Court ruled 4-2 that "the New York Constitution does not
compel recognition of marriages between members of the same sex. Whether
such marriages should be recognized is a question to be addressed by the
Legislature."
In its editorial of 7 July 2006, the New York Times opined that,
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What was the case about? Currently, New York State regulates marriage through the Domestic Relations Law. Lawyers for the plaintiffs' (i.e. the 44 same-sex couples suing for the right to marry) argued that this law, which limits marriage to opposite-sex couples, violated 2 provisions of the Constitution: the Due Process Clause and the Equal Protection Clause. In laymen's words, the Due Process clause basically says that no citizen may be deprived of his rights except by laws that are based on sound reason and which have been enacted fairly in accordance with the state and government's own rules. A law that is arbitrary, irrationally-grounded, motivated by prejudice or morally unjust would not satisfy the Due Process provision. Laws are only defensible if they serve a legitimate or compelling state interest [see footnote 1 for more explanation]. The Equal Protection Clause requires all laws and all rights to apply equally to all citizens. Lawyers for the State of New York conceded that the marriage laws were discriminatory. Their case was built on the argument that discrimination was rational and served a legitimate state purpose. How rational and legitimate is rational/legitimate enough, is a vexing question in cases of this nature. US courts have long established bars of three heights: strict scrutiny, heightened scrutiny and rational-basis (or minimal) scrutiny. Some explanation for what these mean can be found in the box on the right. The State conceded too that their arguments would not be able to overcome the more stringent demands of justification required by heightened scrutiny, let alone strict scrutiny. The State (i.e. the defendants) argued that the court should apply a low bar to this case, the only bar that their arguments could conceivably surmount. 4 out of the 6 judges ruled that a low bar would indeed apply; that being the case, the State was able to satisfy them that the marriage law as it stood was sound. The dissenting opinion by Chief Judge Judith Kaye said the middle bar (heightened scrutiny) should have been applied, in which case, the State did not have the arguments to overcome it. Moreover, it said that even when measured against the lower bar, the State's case was too weak to convince. The New York Times saw it that way too. As mentioned above, it felt that the decision "involved some twisted legal reasoning." Welfare of children is a legitimate state interest Now, let's drill down to a deeper layer and examine the key arguments [2]. The majority opinion, written by Judge Robert S. Smith and concurred with by 2 other judges, said that "there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted." Both of these are based on the assumption "that marriage is important to the welfare of children." The first of these two grounds was that marriage provided stability in families, and the second was that the presence of a male and female adult in the family was, based on intuition, better for the children. Dealing with the first reason, "The Legislature," the judges said, "could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships." This was because heterosexual intercourse produced children, and that heterosexual relationships are "are all too often casual or temporary." Offering them the benefits of marriage -- there are at least 316 identifiable ones, the court said, ranging from tax advantages to health insurance, obligation for financial support and probate -- might induce the otherwise casual couples to stay together, thus providing a stable home of the children so accidentally produced. The court recognised that same-sex couples do raise children too, but since having children is a deliberate decision, not an accident of a hot date, same-sex couples are almost always more stable than opposite-sex couples. As a consequence, it is rational for the state to deny marriage licenses and the 316 attendant benefits to same-sex couples and their children.
In her dissenting opinion, Chief Judge Kaye said, "the question before us is not whether the marriage statutes properly benefit those they are intended to benefit -- any discriminatory classification does that -- but whether there exists any legitimate basis for excluding those who are not covered by the law." While it may meet a legitimate state interest to induce opposite-sex couples to marry and provide better for their children, "the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone." Just in case anyone is tempted to argue that encouraging people to procreate lies behind the marriage law that is restricted to heterosexuals, Chief Judge Kaye reminded the court that even the dissenting opinion in the Lawrence v Texas (2003) [3] had said that "encouragement of procreation" could not "possibly" be a justification for denying marriage to gay and lesbian couples, "since the sterile and the elderly are allowed to marry". In other words, if the state says that a certain benefit is meant only for A, but also gives it to B and C, but not D, how can the state still claim the justification that since it is meant only for A, that is why it isn't given to D? This was partly addressed by the majority's second reason. "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."
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No source for this belief was
cited except "intuition and experience". Even so, the majority recognised
Notwithstanding that, the court allowed the legislature to ignore these exceptions in framing legislation. Absent "conclusive proof", the legislature could still be rational while ignoring these facts, it said. "In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home. And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households." Turning to the specific question of Due Process, the majority asked themselves, firstly, did the present law abridge a fundamental right? Secondly, even if it didn't, was the law based on sound reasoning?
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The majority found that while in
America, there was a fundamental right to marry, there was no fundamental
right to marrying a person of the same sex. A gay person has the same
right as a heterosexual person to engage in heterosexual marriage. (See
box at right).
Secondly, based on the above considerations of children's welfare, the existing law was reasonable. Dissenting, Judge Kaye said, "Central to the right to marry is the right to marry the person of one's choice" otherwise it is meaningless. She referred to the precedent in Loving v Virginia [4]. The majority had said that the landmark case Loving v Virginia (1967) did not establish any precedent regarding same-sex couples. That case only established the right to marry someone of another race. To think that, Kaye said, would be to misapprehend the question faced by the Court in 1967. Furthermore, if one framed the question so narrowly, it would merely serve to answer one's question the way one wanted. Why did the US Supreme Court in Loving v Virginia decide that Richard Loving had a right to marry a woman of another race? Because the court felt that the fundamental right to marry would be pointlessly theoretical without the right to marry the person of one's choice. That underlying principle is what made Loving v Virginia a relevant precedent to Hernandez v Robles, despite the majority denying it. Moving on to the specific question of Equal Protection of the Law, I need to refer the reader once again to the explanation in the yellow box above regarding the legal distinctions between strict scrutiny, heightened scrutiny and rational basis scrutiny. The majority found that these cases did not involve classifying people by their ethnicity or gender. Gay men are free to engage in heterosexual marriage the same say that heterosexual men can, the judges said, so there is no discrimination. Hence, only minimal scrutiny need apply. Dissenting, Chief Judge Kaye said heightened scrutiny should have applied in this case, for two reasons: Firstly, sexual orientation, like the characteristic of gender, is "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others." Thus, if a case smells of discrimination by sexual orientation, it should deserve heightened scrutiny. Secondly, this case is also a case of gender discrimination, and for this reason alone, the case should be subject to heightened scrutiny. Take the example of a woman -– let's call her Jane. She wants to marry Olivia. At the same time, a man John wants to marry Olivia too. The law allows John to marry Olivia, but not Jane. Why not? Simply because of Jane's sex. So Jane's right to marry is being denied by the law on account of her sex. Thus, this case, she said, involved a "discriminatory classification" and should therefore be "subject to heightened scrutiny." Once the matter is subject to heightened scrutiny, the burden should fall on the State to show positive reasons why the marriage law must discriminate against same-sex couples the way it does. But since the State (i.e. the defendants) had already conceded that it could not overcome heightened scrutiny -- "a test that defendants concede it cannot pass," in Kaye's words -- the court should have found for the plaintiffs. While defeat in the Hernandez and Robles case is certainly disappointing, the thing that really grabs you about this instance is "Is that all there is?" as Evan Wolfson wrote in the Advocate magazine, 10 July 2006. Are these arguments "all they’ve got to justify dragging out the pointless exclusion of gay couples from marriage"? "Under proper equal protection analysis, neither the 'accidental procreation' rationale for heterosexual 'stability through marriage' nor the 'best interests of the children' rationale for favoring one kind of family holds up as a justification for the denial of gay people’s freedom to marry," Wolfson wrote. "The silver lining of the decision is,
ironically, its thinness, illogic, and refusal to consider the lives of
real people, including gay families." © Yawning Bread
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Footnotes
Addenda None
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