New York Courts on Gay Marriage

Here is a recent appellate opinion on gay marriage in blue state New York, which sounds pretty darn red to me.

Note some of this language:

The legislative policy rationale is that society and government have a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing. It systematically regulates heterosexual behavior, brings order to the resulting procreation and ensures a stable family structure for the rearing, education and socialization of children (Goodridge, 440 Mass at 381, 798 NE2d at 995 [Cordy, J., dissenting]).

Marriage promotes sharing of resources between men, women and the children that they procreate; provides a basis for the legal and factual assumption that a man is the father of his wife's child via the legal presumption of paternity plus the marital expectations of monogamy and fidelity; and creates and develops a relationship between parents and child based on real, everyday ties.

It is based on the presumption that the optimal situation for child rearing is having both biological parents present in a committed, socially esteemed relationship (Reno v Flores, 507 US 292, 310 [1993] [marriage allows the state to express a preference for biological parents "whom our society . . . (has) always presumed to be the preferred and primary custodians of their minor children"]).

The law assumes that a marriage will produce children and affords benefits based on that assumption. It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depends on a healthy marriage culture for this latter critical, but presently undervalued, benefit. Marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society, and such preference constitutes a rational policy decision. Thus, society and government have reasonable, important interests in encouraging heterosexual couples to accept the recognition and regulation of marriage.

Is this hyperbole of nostalgic Norman Rockwell idealism or accurate description of current social phenomenom? Even if true, does it necessarily follow that same-sex marriages will disrupt this framework?

Whaddya think?

Comments

[McKiernan]

"Whaddya think ?"

Well,

Some think that four testicles does not a marriage make. And others think that a child does need a real mommy and a real daddy on site, if you will, to promote the common welfare.

This doesn't help lawyers, but the courts will eventually pass through all the legal jingoistic diarrhea that is currently pc acceptable and necessary on the dusty road to lawyer bank account improvement syndrome.

If you were a child what would you want, a Mom, a Dad, a Mom and a Dad,two Moms or two Dads, a Court or a genealogy that says one of your predecessors was a turkey baster ?

[HankB]

McKiernan,

Well, I reckon you get credit for provocative and colorful expression of thought on this one!

I'm not sure some of the readers here, though, will agree with your position.

Hank

[McKiernan]

Duz that mean I don't get the green border ?

[Dan]

Hank,
here's my take on gay marriage. First, there are SO MANY MORE important issues gays should be focusing on right now. I think this issue is kind of a luxury gays can't afford right now. I think we're focused on it BECAUSE we don't want to effectively deal with other issues.

Also, the word MARRIAGE, is a direct affront the conservative, right-wing Christians. It's such a waste of time and energy to engage these people...and they've got much more money and energy to make sure gays don't MARRY.

I think gays should try to actually accomplish something that has a chance...civil unions. But NO, we have to have the word "marriage". It's just not going to happen, or at least not in the foreseable future. Why not work toward something acheivable...then maybe in the future work toward marriage. This is simply trying to bite off more than we can chew.

[HankB]

Hello Dan!

Interesting observations -- you seem to raise tactical objections to gay marriage -- which certainly is politically savvy on your part.

I'm kinda torn on the issue.

My libertarian/intellectual side sez, "live and let live -- let these folks marry."

My experience and somewhat Catholic upbringing sez, "hmmm, men and woman should marry and have babies."

So, I haven't formed hard opinions on the matter.

If I were offered a hypothetical package deal, such as: (1) Hank accepts legalized gay marriage and (2) gays rethink AIDS science and give Duesberg an honest forum, I'd probably accept the deal.

Hank

[Lawstud6]

Agree with it or not, like it or not, the majority of the Court has articulated the beliefs of an overwhelming number of Americans. On a legal note, it seems that the majority was properly offended by the lower courts invasion of the legislative process. the ruling is correct and should stand scrutiny from higher courts.

[Dan]

One of the problems I have with gay marriage is actually with marriage itself.

Marriage is romanticized. Marriage is a make-believe, happily-ever-after fairy tale that is not borne out in reality. What's the divorce rate in this country? Come on, get over this romanticized view of marriage, it just isn't the truth.

[Dan]

Hi Hank,

"...gays rethink AIDS science and give Duesberg an honest forum."

well, "AIDS" is the 800-pound gorilla issue that gays have been avoiding effectively dealing with for more than 20 years.

[HankB]

Lawstud6,

You are correct about the lower court's invasion into the political process.

Probably, the courts should stay out of it, and let each state have a referendum on whether to expand traditional marriage to include gay couples or not.

And, then simply abide by the decision.

HB

[McKiernan]

"Probably, the courts should stay out of it, and let each state have a referendum on whether to expand traditional marriage to include gay couples or not."

Well, since there is no quid pro quo re: gay marriage viz a viz an actual real marriage, why would a referendum resolve anything ?

If the gays lose, will they abide by the decision ?

[Liam]

Gay marriage. Or, as the man said: Mawwaaaj...

Why do we look to the state to allow or disallow us to persue committed relationships?

Why does the state prevent some from engaging in the act of making the civil society more civil?

Why is the Gay community pushing for marriage rights, but not for the right to be free of the scarlet letter "A" for aids?

I will make anyone here a 50 dollar bet. You institutionalize legally-defined and protected civil unions for all same-sex couples, and in five years, no one in the gay community will put up with the bullshit we call HIV testing, nor the pre-exposure prophylitis, the AZterminus, and all the trappings of the alientation death-cult that gay men have latched on to (in desparation, I think) just to have some tiny bit of voice in the country.

Happy Friday!

[McKiernan]

Hey, Liam,

Welcome to the choir. You don't mind sitting in the Amen section, do ya ?

Now if ya'll come up with two or too many thoughts in discongruity with the people in the pews you may well have to stand outside the chapel with McK. That's okay, McK will understand and maybe be your pal.

[HankBarnes]

Liam sez:

"I will make anyone here a 50 dollar bet. You institutionalize legally-defined and protected civil unions for all same-sex couples, and in five years, no one in the gay community will put up with the bullshit we call HIV testing.."

Love it. Great testable hypothesis. I hope it comes to pass.

HB

[Liam]

(amen)