Observations and inanities by a second-shift assistant supervisor in the Puppy-Grinding division of the Evil Atheist Conspiracy® (our motto: "Sure it's cruel, but think of the jobs!"), your host, Brent Rasmussen.
New York Approaches the Problem with All Deliberate Speed
The New York State Court of Appeals ruled 4-2 that banning gay marriage is constitutional. The language used in the ruling does not quite include the phrase "all deliberate speed," which marked the mainstream approach to civil rights in the 1950s, but certainly suggests that phrase. Says the majority opinion,
[Link] 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. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.
Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. 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.
The glaring hole in this reasoning should be obvious. In previous rulings, the courts have typically taken the stance that in the absence of studies clearly showing that a restriction of civil liberties is socially beneficial, there are no rational grounds for restrictions. That's why it's unconstitutional to segregate schools based on race and/or sex on the grounds that integrated schools psychologically harm children, to criminalize porn on the grounds that it causes rape, or to ban abortion on the grounds that fetuses are self-aware and hence deserve recognition of personhood.
Nor does the argument that,
A person's preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State's interest in fostering relationships that will serve children best,
have much merit. If the state's interest in fostering relationships that bear children could outweigh civil liberties protections, then bans on birth control would be constitutional. In fact even Lawrence vs. Texas, which the majority opinion acknowledges, could be invalidated on the grounds that anal and oral sex discourage pregnancy-causing intercourse (in the Middle East, where contraceptives and prophylactics are hard to come by, anal sex is the standard form of birth control).
Instead of rational basis, what there is is a common sense view. The courts should be the first institution to recognize that common sense is simply a glorified term for prejudice, since, as the dissent notes, it used to be considered common sense to support anti-miscegenation laws and to deny medical treatment to the mentally ill. More to the point, it used to be common sense that the Sun revolves around the Earth, until scientific studies started suggesting the contrary.
The above-linked NY Times article claims that "Judge Kaye's dissent was a departure from the dry legal language of the main decision." Although it's true that the dissent's preamble uses emotional language to portray the plaintiffs in a positive light, the bulk of the dissent is legalistic. In fact in not using bigoted statements, it was far drier and less charged than the main decision, which freely employed prejudicial language, rubberstamping baseless discrimination against homosexuals.
Many times, people justify oppression, extremism, and political violence with arguments that look intellectual but really aren't. The main decision isn't one of them; its irrationality is not pseudo-intellectual. But it is nonetheless deeply irrational. Rational decisions generally recognize that "could be" is not a viable standard for discrimination.
If some elections' outcomes are the best argument against democracy, this ruling is the best argument against elitism.
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New York court reasoning flawed
The court's statement that "the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home" seems to imply that the court would also uphold a Legislative ban on divorce or separation of parents, since it's "common-sense" that children will do better with a mother and a father in the home rather than with a single parent. Their argument is ridiculous.
Rational basis applied irrationally
I am astounded that the Court could be so wrong. Not morally wrong, but wrong in the way that makes law professors mock and ridicule you in front of the whole class.
The question that should be addressed is this: "Is there a rational basis to deny the benefits of marriage to gays?"
The question the Court chose to answer was "Is there a rational basis for extending the benefits of marriage to heterosexuals with child bearing potential?"
The technical legal term for that approach is "stacking the deck." (It probably sounds better in Latin....)
NYS Ruling on Gay Marriage is SHAMEFUL
I've posted this elsewhere and hope you don't mind my posting this here also. Every time I see this "event" discussed my blood pressure soars.
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Sad verdict. Sad indeed and shameful.
This should have been simply and ONLY an issue of equality. It was an argument against the State sanctioning of discriminatory classes. Churches can do that if they want. However the State canNOT allow discrimination in the things it participates in unless there is an OVERWHELMING COMPELLING reason.
They may get away with such discrimination when it comes to the military. But here the reasons to discriminate are so UNDERwhelming!
How any RATIONAL person (judge) could honestly say that the State participates in the CONTRACT we call marriage just “for the kids” flies in the face of reality (only couples who swear to have kids can marry??!?!?)
Marriage is a SECULAR CONTRACT that memorializes in various laws a couple’s rights and responsibilities, and sets rules for certain intercourse between the couple, or a survivor, and certain public and private institutions. That is ALL it can be as far as the State is concerned. What else can it be given that we are nation under a SECULAR constitution?
This was NOT an issue that needed to be or can be legislated. The only question that can be legislated is simply: “will the State participate in the marriage contract or not?” The State (via legislation) can refuse to participate in ANY marriage and do away with State support of ANY marriage union. But do for “one” and it must do for all… without discrimination except where compelling overwhelming rational reasons exists. How they think their reasons here are such to allow the discrimination is mind boggling.
The Courts should protect our freedoms and champion equality. The Legislature may make laws — BUT it is the duty of the Courts to determine if that law is consistent with the principles in the Constitutions. Again the Legislature can abolish State sponsored marriage contracts but it canNOT legislate blatant discrimination into any law. They do do it (obviously)… BUT only when the Courts forget what they protect and who they work for (the least influential in society -- the citizens that the majority could trample all over if rights were left to votes alone)!!!
Holy hang-ups Batman, this is a job for the Legislature!
So the guiding principal of state sponsored marriage is to promote baby-making, and marriage should be denied to those who can't make them babies? There are a lot of married people out there who should have their license revoked. I suspect babies would get made whether or not the state issued marriage licenses. I made one without a license and the government even lets me claim him on my taxes. Guess they need to fix that. My understanding was always that the state sponsored marriage to promote stability and mutual support, as this is good for society. I guess I was wrong. Silly me.
Good diary, thanks.
"The Christian ideal has not been tried and found wanting. It has been found difficult and left untried."
G. K. Chesterton
Prison marriages
It's been ruled that it's unconstitutional to prevent prison inmates from getting married, even though they obviously aren't in any position to produce children. So the argument that discrimination in marriage on the basis of fertility is not only absurd, but contrary to the law of the land.
Intuition and Assumptions
I haven't read many official court opinions before, but I was really shocked to see words like "intuition" and phrases like "Perhaps they are right but the Legislature could rationally think otherwise" throughout the majority opinion. There doesn't seem to be much rational thought in the majority at all since they base their reasoning on "the undisputed assumption that marriage is important to the welfare of children." I'm pretty sure they were looking at some research testing this premise...leading me to believe that it's isn't undisputed. I would feel better if the courts didn't make any assumptions at all. I'm a fact person myself.
What I'm seeing in the majority position is that although the New York State Law doesn't say that marriage = male + female, it was implied based on other laws about how to get married, etc. Then the judges say that 1. since a male + female relationship could make a baby, and 2. babies grow up to be better adjusted adults if they have an example of both a male and a female in their daily lives (part of the undisputed assumption), then to keep the male and the female together for the sake of the baby the State of New York needs to offer tax breaks, and family rights for insurance purposes and health care decisions to male + female unions. WHAT?!? What happened to the Equal Protection Clause (Article I, § 11: "No person shall be denied the equal protection of the laws of this State or any subdivision thereof"). Shouldn't the discussion have basically stopped there?
Interesting that roughly 31% of all marriages end in divorce (according to Wikipedia). Maybe divorce should just be outlawed...for the sake of the kids.
It's always possible the plaintiffs understated their case
The majority opinion alludes to studies about homosexuality, but it only refers to studies comparing single-sex couples' children with heterosexual couples'. There are related studies, which take on the assumption that marriage is beneficial for children; it turns out that when you control for the fact that single-parent households have a lower income than double-parent households for an obvious reason, the benefits of marriage disappear. Admittedly anecdotal evidence offered by polyamorists further shows that it's all about the number of people: families with three or four partners generally have a higher standard of living than families with two, since they have more income earners.
About the equal protection clause, the main decision has a point that in certain instances it's acceptable to discriminate. Most trivially, employers and schools ought to be able to discriminate on the basis of qualifications and competence, even those that are on the state's payroll (e.g. public universities). But there has to be positive evidence that discrimination is acceptable; contrary to the main decision's claim, the burden of proof always lies with those who wish to abrogate a liberty rather than with those who wish to exercise it.
Wow...
Speaking of fostering relationships... does this open the door to legalized discrimination against homosexuals who want to adopt children? They're not married (strike one) and there's no male and female (strike two).
This is a whole can of worms they've opened here.