The New York Court of Appeals civil marriage decision is an innovative piece of work – and worth a few preliminary thoughts. The standard is mere rational basis, and the court has decided that a legislature is not being ipso facto irrational in denying gay couples, even with children, the same rights as straight couples without children. Money quote:
"[T]he Legislature 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. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement – in the form of marriage and its attendant benefits – to opposite-sex couples who make a solemn, long-term commitment to each other.
The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. 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. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
The argument, essentially, is that because straight couples are so irresponsible, can have children by accident, and have made such a hash of civil marriage, they need more incentives than gay couples to stay together – and civil marriage as an exclusive privilege for them is such an incentive. The interests of gay couples in staying together – the gains in responsibility, health, stability and the security of their own children – are dispensable. Gays are still regarded as sub-citizens. So the goals are rational, but the means are not. Still I find it quite candid of the court to argue that straights are less responsible than gays, far more capable of sexual recklessness and inherently dangerous to children. I wonder if this will be the new argument for the anti-gay forces. We have to save marriage from those responsible gays! It’s the irresponsible straights who need it most.
The Dish 
