A Dark Day for Equality

Today is a very sad day for gay and lesbian Americans, as we were handed one of the worst defeats in recent memory when the New York State Supreme Court ruled that restricting civil marriage to opposite-sex couples only is acceptable under the state’s constitution.

Reading the decision, it seems the New York court has failed to apply simple logic or common-sense, relying instead on the crutch of tradition: this is how it has been and is therefore how it ought to be.

The court looked at “two grounds that rationally support the limitation on marriage that the Legislature has enacted.”

The first is 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.” Granting that stability is important for the health and welfare of children, the court failed to even nominally address why extending civil marriage rights to same-sex couples would in any way threaten the stability of those in opposite-sex relationships.

The second ground referenced is that “other things being equal, it is better for children to grow up with both a mother and a father.” There is dispute on this point, with some social science showing that children raised by two men or two women do equally as well. But even if one grants that two parents of opposite genders is optimal for child welfare, denying same-sex civil marriage rights does nothing to hinder the formation of stable, opposite-sex relationships. Nor can the restriction of marriage equality prevent the formation of families where the parents are of the same sex. Gay couples who want children will continue to create them through sperm donation and adoption. Denying civil equality does nothing to further what the state sees as a laudable goal. Why the court failed to see this is beyond me, and I can only place the blame on the very real fear of the unknown and the different as the cause of their short-sightedness.

Almost as damaging as the justices’ inability to see that this is not a zero-sum game, that extending rights to one group does not remove them from another, is the language they use to explain their rationale. Consider this:

“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 challenge for me here is the use of the word “preference.” Gay and lesbian people do not “prefer” sex with people of the same gender, it is the way we are oriented. “Preference” implies a choice. In matters of sex, the heart wants what it wants. By using “preference,” the court subtly implies that gay people are complicit in the discriminatory treatment they receive.

Worse than that, however, is how the court summarily dismisses gay and lesbian people as a discriminated class:

“neither men nor women are disproportionately disadvantaged or burdened by the fact that New York's Domestic Relations Law allows only opposite-sex couples to marry -- both genders are treated precisely the same way. As such, there is no gender classification triggering intermediate scrutiny.”

What they are saying is that since any man can marry any woman and vice versa, equality is guaranteed. Gay people, as a class therefore, are completely ignored. We “prefer” sex with members of the same gender, and all we have to do is change our minds in order to take advantage of the benefits civil marriage brings. This, to me, is the most damaging element of the decision – our non-existence as a class entitled to any legal protection beyond that accorded to us as men or women.

In its decision, the court suggests that this is a matter to be taken up by the state legislature, and to that end, LGBT organizations have already called upon New York to do just that. That will be a long, hard road. So we best get started.