Unsurprising, but ... annoying, in an odd way.
New York's highest court ruled Thursday that gay marriage is not allowed under state law, rejecting arguments by same-sex couples who said the law violates their constitutional rights.
The Court of Appeals in a 4-2 decision said New York's marriage law is constitutional and clearly limits marriage to between a man and a woman. Any change in the law should come from the state Legislature, Judge Robert Smith wrote. "We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives," Smith wrote.
"It's a sad day for New York families," said plaintiff Kathy Burke of Schenectady. "My family deserves the same protections as my next door neighbors." Burke and her partner of seven years, Tonja Alvis, are raising her 11-year-old son.
Gov. George Pataki's health department and state Attorney General Eliot Spitzer's office had argued New York law prohibits issuing licenses to same-sex couples. The state had prevailed in lower appeals courts. The judges declined to follow the lead of high court judges in neighboring Massachusetts, who ruled that same-sex couples in that state have the same right to wed as straight couples.
The four cases decided Thursday were filed two years ago when the Massachusetts decision helped usher in a spate of gay marriage controversies from Boston to San Francisco. In New York, the mayor of the Hudson Valley village of New Paltz married about two dozen gay couples in February 2004. With little hope of getting a gay marriage bill signed into law in Albany, advocates from the ACLU, Lambda Legal and other advocacy groups marshaled forces for a court fight. Forty-four couples acted as plaintiffs in the suits, including the brother of comedian Rosie O'Donnell and his longtime partner.
Plaintiff Regina Cicchetti said she was "devastated" by the ruling. But the Port Jervis resident said she and her partner of 36 years, Susan Zimmer, would fight on, probably by lobbying the Legislature for a change in the law. "We haven't given up," she said. "We're in this for the long haul. If we can't get it done for us, we'll get it done for the people behind us."
In a dissent, Chief Judge Judith Kaye said the court failed to uphold its responsibility to correct inequalities when it decided to simply leave the issue to lawmakers. She noted that a number of bills allowing same-sex marriage have been introduced in the Legislature over the past several years, but none has ever made it out of committee. "It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation," she wrote. "The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today's decision as an unfortunate misstep."
Judge Albert Rosenblatt, whose daughter has advocated for same-sex couples in California, did not take part in the decision.
(PDF - Adobe Reader/Acrobat required)
NY State Court of Appeals: Decision in Jason Seymour v. Julie Holcomb as City Clerk of the City of Ithaca
In the Matter of Elissa Kane v. John Marsolais, Albany City Clerk
Sylvia Samuels v. The New York State Department of Health
Daniel Hernandez v. Victor L. Robles
Same Sex Marriage Appeals: video of argument before the court (Windows Media Player required)
The annoying thing isn't that the judges rejected the plaintiffs' arguments; as I said, that was more or less expected. The annoying thing is that they trotted out the "marriage is for the benefit of children" argument. Again. These cases have been marching through the court systems of various states for most of this decade; you'd think that by now, judges would see the logical hole in that argument: marriage is not barred to heterosexuals who either cannot or will not have children. In order for the judges' logic to be persuasive, marriage would need to be available only to those who sign an affidavit certifying that, "Yes, we will get out there and start popping out those babies right away!" or to those who have already had children -- in fact, it's only for that last group that the argument is truly persuasive, since they have a demonstrated need for the alleged protections for children designed into marriage. Moreover, this logic requires that people who have children should never be allowed to divorce; there's simply no reason to deny the children the benefit of a marriage simply because their parents don't want it any more.
Very few people would actually make either of those arguments; they're absurd on their face. Nonetheless, they are the logical implications of the standard judicial "Marriage is only for the straight people" decision. And yet, we have to buy it when judges say, "Marriage is for the sake of the children."
It would be rather refreshing, if entirely illegal, if one of these decisions could simply come out and say, "Marriage is for straight people because we don't like you, the gay people. Really, how much more evidence of this do you need? Straight people who flat out state that they don't want children, or who are infertile, or who are too old to bear children, all those people can marry. Straight prison inmates who may never actually touch their spouses, and thus will never be able to bear children, can get married. We don't think you're entitled to the protections of either the state or federal constitutions. WE DON'T LIKE YOU.. Now go away, you bother us." Granted, they'd have to dress it up a bit more in legal language, cite a few decisions here and there. But at least if they flat out said, "We won't let you marry because we don't like you and your icky sexual ways" ... well, at least it would be intellectually and emotionally honest.
If judges continue to insist on the benefits of marriage as a breeding ground for children, they might want to consider this:
In 2005, the American Academy of Pediatrics (AAP) Board of Directors commissioned the Committee on Psychosocial Aspects of Child and Family Health, the Committee on Early Childhood, Adoption, and Dependent Care, the Committee on Adolescence, the Committee on State Government Affairs, the Committee on Federal Government Affairs, and the Section on Adoption and Foster Care to develop an analysis examining the effects of marriage, civil union, and domestic partnership statutes and amendments on the legal, financial, and psychosocial health and well-being of children whose parents are gay or lesbian.
In developing this analysis, the involved committees and section held before them the AAP's core philosophy—that the family is the principal caregiver and the center of strength and support for children. Together with this philosophy, contributors recognized the reality that our gay and lesbian patients grow up to be gay and lesbian adults. Because many pediatricians are fortunate to care for 2 or more generations of a family, we are likely to encounter and remain involved with our patients, regardless of sexual orientation, as they mature and mark the milestones of establishing a committed partnership with another adult, deciding to raise a family, and entrusting the health and well-being of their own children to us.
This analysis explores the unique and complex challenges that same-gender couples and their children face as a result of public policy that excludes them from civil marriage. In compiling this report it became clear to the contributing committees and section that the depth and breadth of these challenges are largely unknown to the general public and perhaps even to many pediatricians. As such, the AAP Board of Directors approved the broad dissemination of this analysis to assist pediatricians with addressing the complex issues related to same-gender couples and their children. [...] In all its work, the AAP is committed to calling attention to the inextricable link between the health and well-being of all children, the support and encouragement of all parents, and the protection of strong family relationships. This analysis was prepared to bring to light the legal, financial, and psychosocial ramifications of recent and proposed public-policy initiatives affecting same-gender parents and their children.
Civil marriage is a legal status that promotes healthy families by conferring a powerful set of rights, benefits, and protections that cannot be obtained by other means. Civil marriage can help foster financial and legal security, psychosocial stability, and an augmented sense of societal acceptance and support. Legal recognition of a spouse can increase the ability of adult couples to provide and care for one another and fosters a nurturing and secure environment for their children. Children who are raised by civilly married parents benefit from the legal status granted to their parents.
Gay and lesbian people have been raising children for many years and will continue to do so in the future; the issue is whether these children will be raised by parents who have the rights, benefits, and protections of civil marriage. Same-gender couples are denied the right to civil marriage in every state except Massachusetts and the right to civil union except in Connecticut and Vermont. The federal government and other state governments do not recognize those civil marriages and civil unions.
There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents' sexual orientation and any measure of a child's emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with 1 or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families....
So in other words, the issue for children isn't whether or not their parents are straight and married; the issue for children is whether or not their parents, regardless of sex or orientation are married and entitled to the benefits and protections of marriage. Denying gays and lesbians the right to marry doesn't just harm the adults; it harms the children that this institution is allegedly there to protect.
Just a little something for the judges to consider when the next case comes down the pike and they want to trot out the, "Marriage is for the children!" argument.
Posted by iain at July 06, 2006 10:01 AM
