while this thread has had some interesting digressions, i'd like to pull it back to the original questions i posed in regards to the NY State ruling about gay marriage. what i am most interested in is the idea that marriage can be logically understood as a safeguard against irrepsponsible heterosexuality and the potential harm to society that straight sex can do as it often results in unwanted pregnancies. as someone under 30 who's never known a world without AIDS, i've always assumed that homosexual sex was the riskier activity and as such i take a series of precautions (above and beyond rigorous condom useage) that would probably never occur to my heterosexual friends (and which is why i'm actually not as sympathetic as i might be to the one or two unwanted pregnancies that have happened over the past year or so).
i'm also taken by the court's refusal to acknowledge the existence of same-sex couples with children.
here's a piece from The Advocate that's (obviously) very pro-gay marrirage, but also very interesting. some excerpts:
[q]Just five weeks after oral arguments in the freedom-to-marry cases brought by 44 couples and their children, the New York court of appeals (the state’s highest court) ruled, 4-2, that it is not necessarily “irrational” for the law to exclude same-sex couples and their loved ones from marriage. Applying a toothlessly minimal scrutiny to the denial of something as important as the freedom to marry, the plurality held that the limitation of marriage to different-sex couples could be arguably justified on the basis of either of two possible rationales. First, heterosexuals, who can conceive children by accident, need the stability that marriage brings (whereas gay couples, whether or not raising children, do not). Second, the denial of marriage, in the court’s words, could relate to the “intuition” 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,” even though, the judges conceded, there is no actual evidence that this is so or that children raised in other homes, including by gay parents, are at all harmed.
Put aside for the moment, as the dissent explained, that “marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage-—purportedly to encourage other people to procreate.” In fact, the plurality’s strained rationalizing of the discriminatory exclusion fails on its own terms.
New York’s ruling came just a week after the Arkansas supreme court unanimously rejected precisely the same proffered rationale; unlike the four-member majority of New York’s highest court, the judges in Arkansas (!) instead relied on the evidence provided by experts in child welfare. That evidence was, of course, available to the New York judges. Institutions such as the American Psychological Association, the National Association of Social Workers, the American Psychiatric Association, the Association to Benefit Children, and the American Academy of Matrimonial Lawyers, among other authorities, submitted briefs to the court calling for an end to marriage discrimination in the interest of children and families.
And the very week of the New York decision, the American Academy of Pediatrics weighed in once again with an authoritative statement titled “The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children” (see the academy’s full analysis on
www.freedomtomarry.org). The nation’s kids’ doctors know best—and here’s what they said:
“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 one 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.”
Not only was this evidence, this kind of careful consideration of what truly helps couples and kids missing from the New York plurality opinion, so was any actual logical connection between the ends ostensibly sought (promoting stability, helping children) and the means chosen (denying that stability and help to others). As Chief Judge Judith Kaye explained in her powerful and persuasive dissent (required reading for all Americans who want to understand why our nation needs marriage equality:
www.freedomtomarry.org), “it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State’s interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.”
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.
As the dissent pointed out, “Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, 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.… [After all,] no one rationally decides to have children because gays and lesbians are excluded from marriage.”
The plurality’s failure to even consider the lived realities of the 44 plaintiff couples, their kids, and the hundreds of thousands of gay New Yorkers and their families injured by the denial of marriage undoubtedly contributed to the retrograde and astonishing suggestion that the different-sex restriction on marriage somehow helps kids. In fact, as Judge Kaye noted, “the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.” That would be so even if the “intuition” that there is one “best kind of family” were true-—irrelevant as that is to kids who, after all, have the families they have, and don’t deserve the laws making their family’s life any harder.
http://www.advocate.com/exclusive_detail.asp?id=33556&page=1
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i guess i don't understand how excluding gays from marriage rights supports and affirms heterosexual marriage.