Dale Carpenter has had a series of interesting posts at Volokh about last week's ruling from the NY Court of Appeals (which is their state supreme court) that said that gay marriage was not required by the state constitution of New York. Carpenter is a law professor who advocates gay marriage but is opposed to having it imposed by the courts, which makes his points even more compelling. In the most recent post, he looks at the court's analysis of the rational basis test as applied to gay marriage (Kuznicki also wrote on this the other day, arguing that the court had misapplied the rational basis test).
In such cases, the outcome is essentially decided by the level of scrutiny the court chooses to apply. The plaintiffs made two arguments for why the court should apply heightened scrutiny to the law, both of which were rejected by the court. They chose instead to apply only the rational basis standard, which generally means that they have no intent of overturning the law. As Carpenter notes:
As ordinarily applied, rational basis is a very forgiving standard. The law must be (1) rationally related to (2) a legitimate end of the state. The law need not be very wise or very good to survive. As I once heard Richard Epstein memorably describe it, the rational basis standard basically asks whether any fool could come up with a stupid reason for a bad policy.
Very rarely does a court apply the rational basis standard and still overturn the law at question. This standard means, in essence, that if there is any logical connection between the law and a legitimate government interest, the law passes muster. The only case I can think of where the court applied a rational basis standard and still struck down a law was in Romer v Evans, and that case also involved gay rights. But as Carpenter notes, the court offered two possible arguments for a rational basis for the law and neither of them, upon examination, turns out to be terribly rational. Here's the first:
"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." (p. 5) Children need permanence and stability in their lives. Yet the heterosexual relationships that produce them, said the court, "are all too often casual or temporary." Homosexual couples do not become parents by "accident or impulse"; they must plan ahead and obtain children through adoption, artificial insemination, or some other "technological marvels." Unstable relationships among heterosexuals therefore "present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples."
Jason makes the same argument at Positive Liberty, and as a man in a gay marriage preparing to adopt a child, he's in a good position to know that the decision to have a child is much more difficult for gays and for straights, and therefore much less prone to a rash decision. Gay parents often have to make great sacrifices to become parents, while straight parents routinely give birth to essentially unwanted children. Jason writes:
The Legislature could also find that [same-sex] relationships are all too often casual and temporary. I am quite sure that it could. Yet it would be hard-pressed -- almost to the point of absurdity, if not altogether at it -- to find a same-sex relationship that was both "casual and temporary" and that had children in need of joint protection. As the court itself acknowledges, children don't come to same-sex relationships through casual acts of intercourse.
For homosexuals who are also biological parents, even raising their own kids takes a dogged insistence that one's biological children must remain with them after a divorce or a death -- even while the courts often enough try to remove them. Meanwhile, adopting kids takes a truly absurd amount of paperwork, background checks, psychological exams, medical exams, financial exams, and fees, fees, fees. Many thousands of dollars of the latter, if that means anything.
Casual? Temporary? I think not.
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. Sure. But it is peculiar, to say the least, to privilege only those relationships in which children are born. Why not privilege those relationships in which the children are actually raised? What does this decision -- birth over upbringing -- imply about heterosexual couples who adopt?
No one doubts that marriage promotes stable environments for the raising of children. But the fact that heterosexuals are much more likely to become parents by accident than homosexuals hardly justifies promoting marriage only among straight parents. Here's the court's second rationale, as stated by Carpenter:
The New York court offered a second rational basis for excluding gay couples from marriage. "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." (p. 6) In response to social-science studies cited by the plaintiffs concluding that there are no differences between same-sex and opposite-sex couples in raising children, the court argued that the studies did not conclusively establish that the legislature was irrational to prefer heterosexual parents.
I agree with the court that the social-science studies on parenting, to date, do not establish conclusively that children do as well in same-sex households as in opposite-sex ones. The day may come when it would indeed be irrational to doubt this. We're not there yet.
But once again the key question left unanswered by the court is, how does the exclusion of gay couples from marriage rationally advance the putative preference for heterosexual couples in child-raising? If we were faced with a choice between awarding a child either to a heterosexual or homosexual couple then, all else being equal, it would be rational for the legislature to prefer the former, given the present state of our knowledge. A policy that gave a preference in such cases to heterosexual parents would rationally promote the state's interests.
But that is not what's at stake in the question of whether gay couples should be able to marry. If the state could rationally claim that gay couples are incompetent to raise children, that would be one thing. Neither New York nor any other state takes that position, since all states permit gay people to raise children (some, with restrictions and qualifications). In New York, it is possible for a same-sex couple to adopt a child, but not to protect their joint responsibility for that child with marriage. New York guarantees these children will be raised outside of marriage. You could, I think, come up with some explanation for how excluding gay couples promotes what the state regards as the optimal familial arrangement, but the New York court's analysis of this point is missing.
Carpenter is not arguing that laws against gay marriage can't satisfy rational basis review; Kuznicki comes much closer to arguing that. But both are correct to point out that the rationales offered by the court do not appear to do so. There may be other, better arguments to be made, as many of the commenters at Volokh have argued; but they were not made by the Court in this case.