from Parenting & Family and Social/Political News
By William Duncan, NARTH Legal Committee Chairman
July 7, 2006 - On July 6, 2006 the New York Court of Appeals upheld the state's marriage law in a 4-2 decision. This is significant because it demonstrates that a careful court can indeed understand the important interests served by marriage between a man and a woman. My summary of the majority opinion is below.
Also, the Georgia Supreme Court has just unanimously ruled that the Georgia marriage amendment addresses only one subject and is thus valid, reversing a trial court decision. This is a good day for marriage law.
HERNANDEZ V. ROBLES
New York Court of Appeals
July 6, 2006
Four cases challenging the state's definition of marriage were consolidated on appeal before the New York Court of Appeals. The court first briefly addressed an argument, proposed by amici, that the current marriage statute could be construed to allow same-sex couples to secure marriage licenses.
The court rejected this argument noting that various laws referencing marriage use gender specific terms.
The court then assessed whether the law could be "defended as a rational legislative decision." The court framed the question as "whether a rational legislature could decide" that the benefits of marriage should be given to opposite-sex couples but not same-sex couples; not "whether the Legislature must or should continue to limit marriage in this way." The court concluded that there are "at least two grounds that rationally support the limitation on marriage that the legislature has enacted;" both premised on "the undisputed assumption that marriage is important to the welfare of children."
First, since "[h]eterosexual intercourse has a natural tendency to lead to the birth of children" and "homosexual intercourse does not," the legislature "could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born" by offering an inducement to opposite-sex couples to marry. The court noted that the same considerations do not apply to same-sex couples who do not have children without intending to do so.
The court's second ground for believing the marriage law rational is that 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" since "[i]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." Despite exceptions to this patter, the court held, the legislature could find that "the general rule will usually hold."
The court noted that social science studies "on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households," but rather show "that rather limited observation has detected no marked difference."
The court said that plaintiffs "seem to assume that they have demonstrated the irrationality" of the idea that marriage benefits children "by showing there is no scientific evidence to support it" but the court noted that "[i]n the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home."
After concluding that there are sufficient reasons for the legislature to choose to define marriage as the union of a man and a woman, the court addressed plaintiffs' proffered analogy to Loving v. Virginia. The court noted that the history of racism is much different than the context of this case. The majority opinion points out that "[u]ntil a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex." Thus, "[a] court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted."
In regards to plaintiffs due process argument, the court held that the right to marry a person of the same-sex is not deeply rooted in the history and tradition of the nation so the relevant question is whether the right to marry includes "a right to same-sex marriage." The court concluded that this case was like Washington v. Glucksberg in that "the relatively narrow definition of the right at issue was based on rational line-drawing" as opposed to the "essentially arbitrary" classification struck down in Lawrence v. Texas. Thus, New York's marriage law did not restrict "the exercise of a fundamental right." Having earlier concluded that the law protected the welfare of children, the court found that it advanced a rational state interest and thus, did not deprive plaintiffs of due process.
In regards to equal protection, the court first held that the statute did not create sex discrimination because it did not "put men and women in different classes, and give one class a benefit not given to the other" thus subordinating either men or women as a class. The court did find, however, that the law "does confer advantages on the basis of sexual preference" since those who prefer relationships with persons of the same-sex are treated differently than those whose preference is for opposite-sex relationships. The court applied rational basis scrutiny to this classification because "[a] person's preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State's interest in fostering relationships that will serve children best."
The classification was not invalid as under-inclusive because it relied on the real differences between same and opposite-sex couples. It was not invalid as over-inclusive because "[a] legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea."
The court concluded its opinion by urging participants in the marriage controversy to "address their arguments to the Legislature."