It's not prejudice, it's "rational."

[eruthros]

From the NY courts document:

"Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that that limitation is valid under the New York Due Process and Equal Protection Clauses, and that any expansion of the traditional definition of marriage should come from the Legislature."

Then they go into a bunch of stuff about Due Process and Equal Protection, but that's not the hinge point, for me. Nor is it the hinge point of the decision. "Rational." That's the word that pisses me off. And it's the basis of their decision: "Where no fundamental right is at issue, legislation is valid under the Due Process Clause if it is rationally related to legitimate government interests." Emphasis mine.

They're not just putting it off on the legislature, not just saying that it's not unconstitutional because of the way the law is written. That would be awful, but wouldn't make me as angry as this does. Because they're saying that there are rational reasons to keep me from getting married.

Those rational reasons appear to be:
1. Opposite-sex couples are more likely to have children accidentally, so we could say that it was valid to reward them for that and that "[the legislature] could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement -- in the form of marriage and its attendant benefits -- to opposite-sex couples who make a solemn, long-term commitment to each other." That is, apparently marriage is a bribe to encourage us to have kids, or to make couples who have an unexpected pregnancy stay together. Because the on-purpose pregnancies of same-sex couples don't need encouragement. Or something.

"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, and thus that promoting stability in opposite sex
relationships will help children more." -- Right. Because prohibiting some parents from getting married will help children "more" than letting all parents form a "stable" relationships. And they don't really address this; they say "Our earlier discussion demonstrates that the
definition of marriage to include only opposite-sex couples is not irrationally underinclusive." That is, it doesn't fail to include same-sex couple with kids for any irrational reason, but for a rational one: bribery.

2. "Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home."

Yep, common sense trumps science any day. Give me a nice significance test, with big sample sizes and good statistics, that demonstrates no apparent difference in the children of same- and opposite- sex marriages, and I'll just say "well, but common sense says..." Ahhh, the refusal to act until you have "conclusive" evidence. Please note that the majority opinion justices are not saying that they did not see evidence; they are denying that said evidence was "conclusive." (Also they are saying that evidence that the children of opposite-sex couples are better off could exist, which kinda boggles the mind, because the defendants would totally have used same in their case if they could've.)

I'm probably overreacting. But just. That word. "Rational." Gnargh.

Comments

[umbo.livejournal.com]

It's completely fucking ridiculous, is what it is. Sigh. I was really hoping they'd go the other way.

*hugs*

[eruthros]

Me too. *hugs back*

[sineala.livejournal.com]

I heard that on the (Albany-based) NPR station this afternoon.

Boo, hiss. They sux0r.

You could get married in Canada? I'm sorry MA won't let out-of-state couples marry.

[eruthros]

Well, marriage is largely a social institution. I don't think I need a document from a place I wouldn't be living, anyway, I just wish that I could get a document in the places I do live. If that makes any sense.

Word

[fiatlouis.livejournal.com]

I'm not moving to New York, or trying to marry someone of the same-sex, but the rational part of the decision bothered me a lot also. I think it is because I try to bring a rational/scientific approach to my life (this is what gets people to make fun of me, when I talk about ketchup being a non-Newtonian fluid), and their idea of rational is, well, irrational. I appreciate your rebuttal, which was put much more succinctly than I could articulate, but it's exactly the fact that they made an argument for allowing straight couples to marry, and then said it was a reason that gay couples can't marry, by using the same kind of reasoning that begets creationism. I remember an opinion piece in the Oregon State student paper that essentially said "sure there are a lot of facts the support evolution, but if you go sit under a tree and ponder, you will decide that God creating everything just makes more sense." I'm perfectly willing to accept "I believe that gay marriage is wrong because they can't accidentally have babies" as an OPINION, but it is not a rational argument. Also, opinions are not good premises for laws, which I guess is why we have to pretend that some people's religious biases are fact, and not just opinion.

Re: Word

[eruthros]

but it's exactly the fact that they made an argument for allowing straight couples to marry, and then said it was a reason that gay couples can't marry

Yes! Exactly. It not a rational reason to limit marriage, just a rational reason for state-recognized marriage to exist. Pfui.

The whole thing just irritates me so much. Their logic is not earth logic.

[redbyrd-sgfic.livejournal.com]

Now see, the whole children thing would have been enough to piss me off. I guess the court figures you don't deserve to have rights if you can't procreate. So we should obviously ban sterile men and women past the age of menopause from marrying. Ptouiee!

The *real* rational reason for marriage as a civil institution is that it provides a systematic treatment for property and asset mergers between cohabiting couples, particularly when there is a disparity in cash income (especially when the stay at home spouse is materially contributing to the family welfare by working in the home). It also provides a systematic means to define who must be covered in things like family health plans. In fact, it's an incentive to form longer-term relationships and financial mergers conducive to things like homeownership. And truthfully- the government does have a certain interest in encouraging people to invest in the system.

But if the court looked at things this way, they'd have to recognize that same sex couples are no more or less stable than opposite sex couple (actually, I don't know this for a fact, but given the divorce rate, I'll assume that there is a certain amount of churn in both flavors of relationship). They'd have to admit that what they're really saying is that gay people shouldn't have the same access to health care. Or parental rights. Or probably some other things I'm not remembering at the moment. Gah!

There's a great (and very funny) song called Defenders of Marriage (http://www.roysongs.com/lyrics/comic/defenders.htm) that lampoons many of the stupidities of this attitude.

[eruthros]

The *real* rational reason...

Exactly! You said it much better than I did -- yes, there is a rational reason for marriage as a civil institution. But a) this court decision didn't describe it and b) if you want to encourage people to do things like buy houses and have children who are covered by health care, you should want to encourage everyone to do that, regardless of sexual orientation. So their "rational reason" is prejudice, not logic.

Also, that song looks fabulous.

[redbyrd-sgfic.livejournal.com]

If you accept their opinions as 'rational', then you have to accept the conclusion. But saying it's rational doesn't make it so. In fact, they're making the unfortunately very common mistake of starting with a conclusion and justifying it, rather than making a - rational - decision based on data.

The problem with law it that law accretes. And the way laws are interpreted are based on how those laws were interpreted in the past. It makes for a conservative institution that is slow to change- also that is unlikely to buck social trends. And it truly *isn't* the business of judges to initiate social change. Their job is to try and consistently interpret the will of the legislature.

Or in other words, we the people need to make our wishes known to our elected representatives. So- have you written to your congresscritter yet? (Hint- most accept email, but a letter printed on paper and mailed will still be taken more seriously.) A good congressman will in fact pay attention to the opinions of his constituents. And if he or she doesn't? There's a voting booth to address that kind of thing... quite seriously, one of the reasons the law is slow to change is that younger people are not as active as older ones in politics.

The song is very funny- I wish I could find an mp3 of it. I heard it form one of the guys in my local folk music club who does it.

[eruthros]

Yes, exactly re: paragraphs 1 and 2. I'm not asking the judges in question to make new laws; I'm asking them to see through their own cloud of "reasons."

Re: mail to congresscritters, I live, I am sad to say, in Pennsylvania. Which means that I can write to the D.C. set all I want, and phone them, and what I get in return looks something like ... *digs up old lj post* ... this. OTOH, my partner just got a Working Assets cell phone, which means free calls to Congress, which means more talking to congressional aide-types who do things like say "uh-huh, I'll make sure he knows" and less wasted paper.