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Decision on Gay Marriage Is Absurd
Published on Wednesday, July 12, 2006 by NewsDay
Decision on Gay Marriage Is Absurd
In a state that gives parental rights to homosexuals, court's denial of wedlock for gays just isn't fair
by Suzanne B. Goldberg

Newsflash to married couples: Your right to marry depends not on your love and commitment to each other but rather on your risk of careless procreation. That, at least, is what New York's high court announced in its opinion rejecting marriage rights for same-sex couples.

To be precise, the court held that the New York State Legislature could reasonably restrict marriage to heterosexuals as a way of inducing them to procreate responsibly and as a way of preferring households headed by a mother and a father over households headed by two moms or dads.

The New York State Court of Appeals decision is as absurd as it is disappointing. If the point of marriage law is to protect children by securing their parents' relationships, allowing heterosexual parents to marry but barring gay parents from doing the same doesn't make much sense.

Perhaps if New York were more like Florida, which bans gay people from adopting children, or Alabama, which denied custody to a lesbian mother because of her sexual orientation, the preference for heterosexual parents might be remotely logical (though still incorrect).

But New York has a long tradition of treating gay and nongay parents as fully equal in the law's eyes. Gay people can adopt, be foster parents, be guardians and provide care to children in every way that heterosexuals do, without regard to sexual orientation.

This commitment to equal treatment is backed up by every reputable social science study out there. Indeed, the American Academy of Pediatrics issued a report in 2005 that concluded "same-gender marriage harms no one, whereas prohibiting civil marriage for gays and lesbians harms these couples and their children."

Our nation's history of marriage also bluntly contradicts the court's decision. Race-based marriage rules, once thought essential for children's well-being and the nation's survival, were finally understood to be invidious discrimination.

Remember, too, that women used to lose their legal independence after marriage. Without legally imposed sex roles, it was thought that both marriage and children would suffer.

One might think, in 2006, that we have come far enough to know that discriminatory marriage rules cannot rest simply on "intuitions" that these rules serve children's best interests. "Intuitions" are, too often, stand-ins for unquestioned discomforts or prejudices.

This is not to say that everyone should love the idea of lesbian and gay couples marrying. Or even that everyone must believe that gay parents are as good to and for their children as heterosexual parents.

But when all of the facts - as well as our history and legal traditions - provide no meaningful support for these intuitions, it is the job of the courts to push back against traditions, however long-standing, and make meaningful our constitutional guarantees of equality under law.

Although the legislature now can do its part to ensure the equality of all New Yorkers by amending the marriage law to include same-sex couples, the court's ruling will no doubt come to be seen as a failure of will in the face of an opportunity to do justice.

Suzanne B. Goldberg is a clinical professor and director of the new Sexuality and Gender Law Clinic at Columbia Law School.

© 2006 NewsDay Inc.


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