Wednesday, July 12, 2006

Common Sense in NY

No matter how much you love your car, you can't get a license to marry her

The Court of Appeals of New York has provided a small victory for common sense. In a modest ruling, the court found 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." This case reveals the important distinction between "what I want" and "what my community owes me." Our constitutional system of government is long overdue for a similar distinction, between "my desires" and "my constitutional rights." There are differences.

The usual media headlines have trumpeted how this case works for or against various interested parties. There have been the predictable sound-bytes from the predictable collection of advocacy groups. But why should informed citizens allow our own thoughts to be molded by such interpretations? The entire decision of the court, including all concurring and dissenting opinons, is available on the web, New York Case No. 86 . If you care about the subject at all, read the decision for yourself.

In a very sensible concurring opinion, Judge Graffeo dismisses Equal Protection arguments. Among other reasons, "individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex."

Some might respond "isn't that like Henry Ford saying you can have any color you want, as long as your preference is black?" In a way, it is. But the point is, the legislature has not set out to discriminate against homosexuals, it has merely defined the nature of an institution that the state will recognize and regulate. Some people would prefer to enter into some other relations, for reasons of their own. This does not mean that the state has discriminated against them. These individuals would like to call what they share "marriage." This desire does not entitle them to a license from the state.

The plurality opinion (that one half of the justices could agree on) is a little disappointing. It relies heavily on procreation to provide a "rational basis" for the state to define marriage as the union of one man and one woman. By the nature of constitutional law, there must be some "rational basis" for a any law to discriminate between different classifications of people. For example, Equal Protection of the Laws does not require that three year olds have the same voting rights as 45 year olds. There is a "rational basis" to require that a citizen be 18 years old before they can vote.

The 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.

True enough as far as it goes. However, many marriages do not result in children. Many men and women marry after their most likely child-bearing years are long past. This isn't exactly a resounding end to the debate. A second "rational basis" accepted by the court also relies on the aspect of marriage that provides a framework for child-rearing:

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.

The court did not have to list every possible rational basis, in order to uphold the law. If there is any rational basis for the distinction made in a law, the law can be upheld. But these two are subject to challenge. Chief Judge Judith Kaye pointed out in her dissent

In holding that prison inmates have a fundamental right to marry – even though they cannot procreate – the Supreme Court has made it clear that procreation is not the sine qua non of marriage. "Many important attributes of marriage remain . . . after taking into account the limitations imposed by prison life . . . . [I]nmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship."

Marriage is indeed about much more than producing children. People of many faiths who recognize marriage as the union of one man and one woman have also recognized that marriage is a very complex relationship, which cannot be reduced solely to a framework for procreation. James Watkins is very eloquent on this point.

In future cases, that observation will have to be addressed. No court seems to have considered a rather obvious and comprehensive fact: the distinction between men and women pre-dates every constitution in the United States of America, and indeed, every form of human goverment. Every person who has ever lived, married or unmarried, has been either a man, or a woman. There are unmistakable physical differences and identifying characteristics. When a baby is newborn, there is no doubt as to its sex.

On the other hand, there is no clear way of identifying who is "a homosexual." Every "homosexual" who has ever lived has also been either a man, or a woman, before they are anything else. In fact, homosexuality has no meaning in the absence of the identities "man" and "woman." Being "gay" is a matter of intangible feelings and preferences, which may or may not change in the course of a lifetime, for various reasons, also poorly understood. In fact, why should the state make a distinction between "heterosexuals" and "homosexuals" by offering marriage licenses to "homosexuals" – (whatever that may be)?

Further, the distinction between male and female is inextricably bound up, in its origins, with a specific process of mating. The most obvious physical differences have no other purpose. This process is more or less consistent for all life more complex than a sponge. The question is not, has the state discriminated against homosexuals? The question is, must the state even recognize the condition known as homosexuality in writing its marriage laws? NO. The state need not recognize the existence of homosexuality at all. Homosexuality is, in an objective mathematical and biological sense, a mere deviation from the norm for human life, one of considerably less interest to the state. In an understated way, the court's opinions acknowledged this:

The binary nature of marriage – its inclusion of one woman and one man – reflects the biological fact that human procreation cannot be accomplished without the genetic contribution of both a male and a female. Marriage creates a supportive environment for procreation to occur and the resulting offspring to be nurtured. Although plaintiffs suggest that the connection between procreation and marriage has become anachronistic because of scientific advances in assisted reproduction technology, the fact remains that the vast majority of children are conceived naturally through sexual contact between a woman and a man.

To put it more crudely, for a woman to have a child by turkey baster requires a male donor. A lesbian partner cannot provide the necessary package of chromosomes to form a fertile zygote. A humane observer cannot refrain from some empathy with Chief Judge Kaye's dissent. Essentially, she is simply presenting legal argument, a badly contrived one, for giving some very concerned human beings what they seek, in order to lead more fulfilling lives. As she wrote:

Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a State legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children–from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.

Compassion calls for a ruling in their favor. Equal protection of the laws, however, does not. Judge Kaye insists that plaintiffs have been "deprived of a fundamental right," which is simply not true. They do not wish to exercise the right of "marriage" as that is licensed by the state. They want to expand the definition of marriage to include their own preferences. The legislature could do that. The courts have no constitutional basis to mandate it.

In fact, Judge Kaye tripped over her own argument, when she cited Lawrence v Texas 539 US 558 (2003). As she says, the Supreme Court in Lawrence rejected its own prior ruling in Bowers v Hardwick 478 US 186 (1986). The earlier decision erred by examining whether the constitution confers a "fundamental right upon homosexuals to engage in sodomy." Of course it doesn't. In Lawrence, the court ruled that the proper question is whether the constitution confers "the right to engage in private consensual sexual conduct." At least seven Supreme Court justices affirmed in deciding Lawrence that this question has no implication for gay marriage. The right to be left alone in one's private life does not equal the right to official recognition from the state for one's private choices. To ask whether the constitution confers a fundamental right upon homosexuals to receive a marriage license is as erroneous as the question posed in Bowers.

Kaye's best citation that the definition of marriage cannot be the union of one man and one woman is from a case against the Attorney General of Canada, under a totally different framework of laws. She also cites the Massachusetts Supreme Court decision mandating marriage licenses for same-sex couples in that state. Thereby, Judge Kaye works a tautology to disprove a tautology: to show that marriage is not the union of a man and a woman "because it just is", she cites the only decision by any state Supreme Court which says that marriage is not the union of one man and one woman (because it just isn't, in Massachusetts).

The plurality decision could have been more comprehensive and more coherent, but the court was properly restrained as to its role:

The cases before us present no occasion for this Court to debate whether the State Legislature should, as a matter of social welfare or sound public policy, extend marriage to same-sex couples. Our role is limited to assessing whether the current statutory scheme offends the Due Process or Equal Protection Clauses of the New York Constitution. Because it does not, we must affirm. Absent a constitutional violation, we may not disturb duly enacted statutes to, in effect, substitute another policy preference for that of the Legislature.

This decision offers hope for voters in states where constitutional amendments to define marriage are on the ballot. In states such as Wisconsin, we can well afford to vote no. There is every reason to expect that the Supreme Court of Wisconsin would show as much common sense as the Court of Appeals of New York. We don't need a constitutional amendment to affirm that the sky is blue, that the sun rises in the east, or that marriage is the union of one man and one woman.

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