OP-ED CONTRIBUTOR
Too Good for Marriage
By KENJI YOSHINO
New Haven

LAST week, New York's highest court voted 4-to-2 that a legislative ban on
same-sex marriage did not violate the state Constitution. In doing so, it
added to the patchwork of state rulings on the issue, including those of
Indiana and Arizona (which similarly upheld legislative bans) and
Massachusetts (which struck down a legislative ban).

What's noteworthy about the New York decision, however, is that it became
the second ruling by a state high court to assert a startling rationale for
prohibiting same-sex marriage - that straight couples may be less stable
parents than their gay counterparts and consequently require the benefits of
marriage to assist them.

The critical question, expressed in a plurality opinion by three members of
the New York court, is whether a "rational legislature" could decide that
the benefits of marriage should be granted to opposite-sex couples but not
to same-sex couples. The opinion then answered in the affirmative with two
different arguments. While both related to the interests of children, they
differed significantly in vintage and tone.

The more traditional argument stated that the Legislature could reasonably
suppose that children would fare better under the care of a mother and
father. Like most arguments against gay marriage, this "role model" argument
assumes straight couples are better guides to life than gay couples.

And like other blatantly anti-gay arguments, it falls apart under
examination. In a decision last month in a case concerning gay foster
parents, the Arkansas Supreme Court found no evidence that children raised
by gay couples were disadvantaged compared with children raised by straight
couples.

But the New York court also put forth another argument, sometimes called the
"reckless procreation" rationale. "He terosexual intercourse," the plurality
opinion stated, "has a natural tendency to lead to the birth of children;
homosexual intercourse does not." Gays become parents, the opinion said, in
a variety of ways, including adoption and artificial insemination, "but they
do not become parents as a result of accident or impulse."

Consequently, "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."

To shore up those rickety heterosexual arrangements, "the Legislature could
rationally offer the benefits of marriage to opposite-sex couples only."
Lest we miss the inversion of stereotypes about gay relationships here, the
opinion lamented that straight relationships are "all too often casual or
temporary."

When an Indiana court introduced this seemingly heterophobic logic last year
in upholding a state ban on same-sex marriage, I thought it was a cockeyed
aberration. But after both New York City and New York State presented
similar logic in oral arguments, and the court followed suit, I began to
understand the argument's appeal: it sounds nicer to gays.

It also sounds more desperate. New York's ban on same-sex marriage is based
on provisions enacted in 1909. It is preposterous to suggest the Legislature
promulgated and retained the law because it believed gays to be better
parents. Moreover, as New York's chief judge, Judith Kaye, pointed out in
her dissent, even if marriage were a response to the dangers of "reckless
procreation," excluding gay couples from marriage in no way advances the
goal of responsible heterosexual child-rearing. "There are enough marriage
licenses to go around for everyone," Judge Kaye noted.

This is not the first time courts have restricted rights with a flourish of
fon d regards. In 1873, the United States Supreme Court upheld an Illinois
statute prohibiting women from practicing law. Concurring in that judgment,
Justice Joseph Bradley observed that the "natural and proper timidity and
delicacy" of women better suited them to "the noble and benign offices of
wife and mother."

Hostile rulings delivered in friendly tones can take longer to overturn, as
evidenced by the century that passed before members of the Supreme Court
reversed their thinking about women and, in a 1973 opinion in a sex
discrimination case, recognized that confining women in the name of
cherishing them put them "not on a pedestal, but in a cage."

We should not need a century to unmask the "reckless procreation" argument
as a new guise for an old prejudice. The "reckless procreation" argument
sounds nicer - and may even be nicer - than the plainly derogatory "role
model" argument. But equality would be nicer still.

Kenji Yo shino,a professor at Yale Law School,is the author of "Covering: The
Hidden Assault on Our Civil Rights.''

Troy Plummer

Ph: (773) 736-5526
Fx: (773) 736-5475
We are United Methodists of all sexual orientations and gender identities
making disciples of Jesus Christ for the transformation of the world.

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