Jeff & Konnor's Blog

The New York Supreme Court ruled 4-2 on Thursday that New York can constitutionally prohibit same-sex marriage. We find the reasoning in this case particularly twisted. To summarize, the court found a way to conclude that prohibiting same-sex marriage does not discriminate against same-sex couples. They then found that marriage should be limited to opposite-sex couples because only opposite-sex couples can have children unintentionally. Read on for the gory details...

When a court decides a case having to do with a government infringing on rights, they first have to determine which standard to apply: a low “rational basis” test, or a higher “strict scrutiny” test. At the higher standard, the government must show that the law in question is “narrowly tailored” and serves a “compelling government interest” in the least restrictive way possible. This is a high standard indeed; most laws that are determined to face strict scrutiny end up being struck down. On the other hand, under the lower rational basis standard, the government must merely show that it has any rational basis for the law.

The higher strict scrutiny standard applies whenever the law in question involves a “fundamental right deeply rooted in history and tradition,” or discriminates against a class of people. The court managed to find that the law prohibiting same-sex marriage does neither of these.

First, it is obvious that there is no fundamental right to same-sex marriage that is deeply rooted in history and tradition. However, the Supreme Court of the United States has firmly established that the right to marry is in general a fundamental right. We can even look to Loving v. Virginia, which struck down laws prohibiting interracial marriage, as precedent for establishing a fundamental right to marry the partner of one’s choosing. More importantly however, asking if there is a fundamental right to same-sex marriage is the wrong question; that there is a fundamental right to marriage should be enough. The Supreme Court decided the Lawrence v. Texas case with similar reasoning: of course there is no fundamental right to engage in particular sexual activities, but there is a fundamental right to do what one pleases in the bedroom without government interference. In addition, the entire concept of “deeply rooted in history and tradition” is circular reasoning. The court is essentially saying, “You’re not allowed to get married because you’ve never been able to get married,” which is the legal equivalent of “because that’s the way it’s always been.”

Second, you would certainly think that a law prohibiting same-sex marriage discriminates between heterosexuals and homosexuals, right? Amazingly, not according to the New York Supreme Court. A straight guy can marry a woman. A gay guy can marry a woman. Viola, no discrimination. Here’s the quote from the decision:

Reserving marriage to opposite-sex couples, however, does not discriminate on the basis of sexual orientation. The marriage statutes are neutral with respect to one's sexual orientation, i.e., both heterosexuals and homosexuals may marry someone of the opposite sex, while neither may marry anyone of the same sex. The statutes do not deny any person the equal protection of the law on the basis of his or her "homosexual preference or orientation."

This is strikingly similar to the reasoning used by the State of Texas in the Loving case, where the state tried to argue that since white people can marry people of the same race, and black people can marry people of the same race, there is no discrimination. The Supreme Court explicitly rejected this reasoning, saying that the law is still discriminatory because it makes distinctions on the basis of race. (See the footnote for an explanation of why race and sexual orientation fall in the same category under the law). A dissenting judge in the New York case makes this point, and even gives a good argument that laws prohibiting same-sex marriage discriminate on the basis of gender as well as sexual orientation:

A woman who seeks to marry another woman is denied that right because she is not a man. That the law equally denies both sexes the right to marry one of their own gender does not remove it from the category of gender discrimination, just as equally denying members of different races the right to marry someone of another race is still race discrimination.

The majority of the New York court, however, after concluding that being able to marry whoever you want is a fundamental right only if that person is of the opposite sex, and concluding that laws against same-sex marriage do not discriminate on the basis of sexual orientation, then gets to apply the lower “rational basis standard” and need only find any legitimate reason to prohibit same-sex marriage. Unsurprising, the court was able to pull one out of the air. Ready?

Marriage is rationally reserved for opposite-sex couples because only opposite-sex couples can have children unintentionally. Thus, it is in the state’s interest to have heterosexual marriage to encourage these couples to get married and provide a more stable environment for the children. Since gay couples can’t have children unintentionally, there’s no reason to include them. Again, we feel a quote is necessary to prove we aren’t making that up:

As it is only heterosexual couples who procreate unintentionally, the State has a legitimate particularized interest in fostering marriage between heterosexual couples, in order to promote a stable environment for children born as the result of opposite-sex unions.

That is so absurd on its face that we almost feel that a counterargument is unnecessary. The state has an interest in protecting children, but this would apply to all children, conceived intentionally or unintentionally, raised by straight couples or gay couples (adoption by gay couples is legal in New York). The Court is using this slight-of-hand about unintentional procreation because it’s the only justification they could come up with to distinguish between opposite-sex and same-sex couples. But, once you open the institution to opposite-sex couples with no unplanned children or with no children at all, how can you then rationally exclude same-sex couples?
We are actually optimistic about the future of gay marriage when a court has to turn logic on its head to find that prohibiting same-sex marriage does not discriminate against same-sex couples, and resort to a contrived “unintentional procreation” argument as a rational basis. Less than fifty years ago, a judge had this to say about interracial marriage:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Hopefully, it will not take fifty years for people to realize that the New York Supreme Court’s decision regarding same-sex marriage is equally as discriminatory and preposterous.

Footnote: The Supreme Court has categorized certain groups of people as “suspect classes.” Laws that establish distinctions based on a suspect class are supposed to be examined under higher scrutiny. A suspect class meets one of the following three criteria: The group’s defining characteristic is immutable (unchangeable), or the group shares a history of discrimination, or the group has no political power. We would argue that sexual orientation meets all three criteria.