Thursday, July 06, 2006

Chief Judge: Banning gay marriage undermines the welfare of children

All of New York Chief Judge Judith Kaye's dissent from today's New York high court ruling upholding the state's ban on gay marriage is well worth reading.

Her dissent can be found here. Be patient when you use that link. You have to scroll through the very long main opinion to get to her dissent. Below are a few excerpts. The emphasis and some of the paragraph breaks are mine.

Kaye writes:

Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly al egitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.

Nor does this exclusion rationally further the State'slegitimate interest in encouraging heterosexual married couples to procreate. Plainly, the ability or
desire to procreate is not a prerequisite for marriage.

The elderly are permitted to marry, and many same-sex couples do indeed have children. Thus, the statutory classification here -- which prohibits only same-sex couples, and no one else, from marrying -- is so grossly underinclusive and overinclusive as to make the asserted rationale in promoting procreation "impossible to credit" ...

Of course, there are many ways in which the government could rationally promote procreation -- for example, by giving taxbreaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave for parents. Any of these benefits -- and many more -- might convince people who would not otherwise have children to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage.

In holding that prison inmates have a fundamental right to marry -- even though they cannot procreate -- the Supreme Court has made it clear that procreation is not the sine qua non of marriage....

Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage--purportedly to encourage other people to procreate.

Indeed, the protections that the State gives to couples who do marry--such as the right to own property as a unit or to make medical decisions for each other--are focused largely on the adult relationship, rather thanon the couple's possible role as

Nor does the plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State's interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage--even apart from the totality of
marriage itself--does not independently violate plaintiffs' rights to equal protection of the laws.
The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it.

Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens ofthousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare, as defendants do not dispute.
The State's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender ofthe spouses.

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