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[q]New York Judges Reject Any Right to Gay Marriage
By ANEMONA HARTOCOLLIS
Published: July 7, 2006
New York's highest court rejected yesterday a broad attempt by gay and lesbian couples across the state to win the right to marry under state law, saying that denying marriage to same-sex couples does not violate the State Constitution.
By a 4-2 majority, the Court of Appeals found that the State Legislature, in laws dating back nearly 100 years, intended to limit marriage to a union between a man and a woman, and that the Legislature had a rational basis for doing so.
The court said it would be up to lawmakers to decide whether same-sex marriage should be permitted, and the ruling had politicians and others mobilizing immediately for a fight in Albany.
The majority decision, written by Judge Robert S. Smith, found that limiting marriage to couples of the opposite sexes was based on legitimate societal goals, primarily the protection and welfare of children. It could well be argued, he said, that children are better off raised by a biological mother and father, rather than by a gay or lesbian couple.
[...]
The second majority opinion, written by Judge Victoria A. Graffeo, a Pataki appointee, upheld the Smith opinion but seemed to distance itself from its sociological arguments that the purpose of the marriage law was to promote families with children.
"Marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing," Judge Graffeo said, in a 22-page concurrence.
She exhorted the Legislature to take up the issue, saying, "It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate."
[...]
On the issue of child-rearing, the majority wrote that despite scientific advances, most children are still born to heterosexual couples, so the state has a legitimate interest in promoting their marriages over others.
"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 judges said.
Judge Kaye, however, argued in her dissent that the historical and cultural understanding of marriage did not justify discrimination.
"Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional," the chief judge said. "As history has well taught us, separate is inherently unequal."
Judge Kaye, who has served on the court for 13 years, said that the understanding of marriage had evolved. Until well into the 19th century, for instance, wives were considered the property of their husbands and married women could not own property or enter into contracts. she noted.
"Only since the mid-20th century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support," she wrote.
She said that while encouraging opposite-sex couples to marry could be good for the welfare of children, denying marriage to same-sex couples did not further that desire in any way.
"The state's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses," Judge Kaye wrote.
Bearing children, she said, is not a prerequisite of marriage, since the elderly and even prison inmates are permitted to marry, and many same-sex couples do have children.
"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," she wrote.
Judge Kaye's dissent was a departure from the dry legal language of the main decision. She noted that the plaintiffs represented a cross-section of ordinary New Yorkers, including a police officer, a doctor, a teacher and an artist, who wanted "only to live full lives, raise their children, better their communities and be good neighbors."
Most people, she wrote, look forward to a wedding "as among the most significant events of their lives," and she said it was wrong for gays and lesbians to be denied marriage "because of who they love."
http://www.nytimes.com/2006/07/07/nyregion/07marriage.html?pagewanted=2
[/q]
i found this a very interesting decision for several reasons. firstly, the ruling is about whether or not the law banning gay marriage is rational, and on the surface, it does not appear to be irrational. why? the court seems to be saying that because straight couples are so irresponsible and often have children by accident they need more incentives than gay couples (who are more likely to be childless, but not always) to stay together. therefore, civil marriage, due to the history of straight irresponsibility, should be an exclusive privilege and incentive (at the expense, apparently, of gay couples). it seems that the court thinks that straight couples are so irresponsible, so reckless, and the consequences of their behavior can be so damaging to children, that they need marriage to prevent them from perpetrating any further harm.
on the face of it, this seems like the correct ruling. if we are to take the fact that the consequences of straight sex (a potentially unwanted child) are far more damaging to society than gay sex, then perhaps there is a rational argument for keeping marriage between straight people, however unpersuading it might be. it retains logic. of course, this ignores the gay couples who have children, but these children are either adopted or well-planned-for, and as such do not face the same peril that children born to straight parents apparently do.
of course, the rationality of the law starts to fade in the face of straight couples who choose not to have children -- how are they any different than gay people? or post-menopausal women? or sterile people? so, if it all comes down to children, then doesn't it make sense that marriage is for couples with children only, and civil unions should be for everyone else? you can't be granted a civil marriage license until the day you birth or adopt a child. that seems to be the logical extension of this law
By ANEMONA HARTOCOLLIS
Published: July 7, 2006
New York's highest court rejected yesterday a broad attempt by gay and lesbian couples across the state to win the right to marry under state law, saying that denying marriage to same-sex couples does not violate the State Constitution.
By a 4-2 majority, the Court of Appeals found that the State Legislature, in laws dating back nearly 100 years, intended to limit marriage to a union between a man and a woman, and that the Legislature had a rational basis for doing so.
The court said it would be up to lawmakers to decide whether same-sex marriage should be permitted, and the ruling had politicians and others mobilizing immediately for a fight in Albany.
The majority decision, written by Judge Robert S. Smith, found that limiting marriage to couples of the opposite sexes was based on legitimate societal goals, primarily the protection and welfare of children. It could well be argued, he said, that children are better off raised by a biological mother and father, rather than by a gay or lesbian couple.
[...]
The second majority opinion, written by Judge Victoria A. Graffeo, a Pataki appointee, upheld the Smith opinion but seemed to distance itself from its sociological arguments that the purpose of the marriage law was to promote families with children.
"Marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing," Judge Graffeo said, in a 22-page concurrence.
She exhorted the Legislature to take up the issue, saying, "It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate."
[...]
On the issue of child-rearing, the majority wrote that despite scientific advances, most children are still born to heterosexual couples, so the state has a legitimate interest in promoting their marriages over others.
"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 judges said.
Judge Kaye, however, argued in her dissent that the historical and cultural understanding of marriage did not justify discrimination.
"Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional," the chief judge said. "As history has well taught us, separate is inherently unequal."
Judge Kaye, who has served on the court for 13 years, said that the understanding of marriage had evolved. Until well into the 19th century, for instance, wives were considered the property of their husbands and married women could not own property or enter into contracts. she noted.
"Only since the mid-20th century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support," she wrote.
She said that while encouraging opposite-sex couples to marry could be good for the welfare of children, denying marriage to same-sex couples did not further that desire in any way.
"The state's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses," Judge Kaye wrote.
Bearing children, she said, is not a prerequisite of marriage, since the elderly and even prison inmates are permitted to marry, and many same-sex couples do have children.
"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," she wrote.
Judge Kaye's dissent was a departure from the dry legal language of the main decision. She noted that the plaintiffs represented a cross-section of ordinary New Yorkers, including a police officer, a doctor, a teacher and an artist, who wanted "only to live full lives, raise their children, better their communities and be good neighbors."
Most people, she wrote, look forward to a wedding "as among the most significant events of their lives," and she said it was wrong for gays and lesbians to be denied marriage "because of who they love."
http://www.nytimes.com/2006/07/07/nyregion/07marriage.html?pagewanted=2
[/q]
i found this a very interesting decision for several reasons. firstly, the ruling is about whether or not the law banning gay marriage is rational, and on the surface, it does not appear to be irrational. why? the court seems to be saying that because straight couples are so irresponsible and often have children by accident they need more incentives than gay couples (who are more likely to be childless, but not always) to stay together. therefore, civil marriage, due to the history of straight irresponsibility, should be an exclusive privilege and incentive (at the expense, apparently, of gay couples). it seems that the court thinks that straight couples are so irresponsible, so reckless, and the consequences of their behavior can be so damaging to children, that they need marriage to prevent them from perpetrating any further harm.
on the face of it, this seems like the correct ruling. if we are to take the fact that the consequences of straight sex (a potentially unwanted child) are far more damaging to society than gay sex, then perhaps there is a rational argument for keeping marriage between straight people, however unpersuading it might be. it retains logic. of course, this ignores the gay couples who have children, but these children are either adopted or well-planned-for, and as such do not face the same peril that children born to straight parents apparently do.
of course, the rationality of the law starts to fade in the face of straight couples who choose not to have children -- how are they any different than gay people? or post-menopausal women? or sterile people? so, if it all comes down to children, then doesn't it make sense that marriage is for couples with children only, and civil unions should be for everyone else? you can't be granted a civil marriage license until the day you birth or adopt a child. that seems to be the logical extension of this law