So it looks like New York won’t go the way of Massachusetts. Despite ideological similarities with Massachusetts’s Supreme Judicial Court — what NYU law professor Stephen Gillers called a similar “center of gravity” — New York’s Court of Appeals reached a very different conclusion in their ruling on gay marriage (Hernandez v. Robles).
The court worked hard to avoid sounding homophobic in its decision, acknowledging that “there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past…” But the court swiftly dodged the equality arguments presented by plaintiffs and instead — in what can only be called an act of judicial passivism — kicked the issue to the state legislature. In his plurality opinion Judge Robert Smith concluded, “We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.” A concurring opinion even gingerly suggested that “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.”
Deference to state legislators, however, did not stop the court from speculating on what could be a rational basis for legislation excluding homosexuals from marriage (and by the way the legislation in question is the Domestic Relations Law of 1909). Indeed, such speculation necessarily formed the crux of the court’s ruling. And here’s where the court’s ruling gets really gnarly:
“First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not…The Legislature could also find that such [heterosexual] relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more.”
Need a translation? Heterosexual New Yorkers are reckless, irresponsible sluts who breed without regard. Gays, however, must dutifully and deliberately pursue adoption, artificial insemination or “other technological marvels” and are thus more likely to raise kids in stable families. Consequently, gays don’t need the “inducement” of marriage. Voila! And in just a few keystrokes, the stereotype of homosexual promiscuity is reversed — though with familiar anti-gay results.
Judge Judith Kaye eviscerated this perverse rationalization in her dissent when she wrote, “Of course, there are many ways in which the government could rationally promote procreation–for example, by giving tax breaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave for parents. Any of these benefits–and many more–might convince people who would not otherwise have children to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage.”
In the ’80s and ’90s, fears of gay promiscuity produced the now almost quaint “gay panic defense” through which gay bashers were let off the hook because they went “temporarily insane” in the face of perceived homosexual advances. That the New York Court of Appeals now invokes a kind of heterosexual panic argument in the face of stable, monogamous, marriage-minded gay couples is rich indeed. But it isn’t surprising given how, as Lisa Duggan and I have argued, debates about gay marriage have become less about gay civil rights and more about the future of marriage as an institution. If marriage is the symbolic and legal foundation for household security (for childcare, healthcare, retirement, home ownership, etc.), and marriage is increasingly unpopular and unstable — then what? Like family-values conservatives, the Court of Appeals stoked and manipulated these anxieties to produce an immediately anti-gay opinion. But the deeper and more occluded marital disorder at the heart of the issue can’t be resolved by banning gay marriage. As Judge Kaye’s dissent suggests, perhaps it’s time for both heterosexuals and gays to debate and enact genuinely pro-family (or pro-household) policies head-on, and recognize the gay marriage question for what it is — a rather simple matter of equality under law.