Today, in Hernandez v. Robles, New York’s highest court, the Court of Appeals, ruled that the state constitution does not require extending marriage to same-sex couples. The court didn’t even order the legislature to provide same-sex couples with civil unions. The decision was 4-2; there are seven judges, but one did not participate in the case because his daughter is involved in same-sex marriage litigation in another state.

Three opinions were issued: the opinion of the court, a concurring opinion agreeing with the result, and a dissent. This post summarizes and critiques the main opinion of the court – in layman’s terms, I hope.

The opinion of the court was written by Judge Robert S. Smith and joined by two other judges. (The other day, Gay City News stated that Judge Smith “is considered an iconoclastic conservative and libertarian and he aggressively questioned both sides in this case, displaying little patience for arguments that procreation wasn’t central to marriage and demanding more specific ‘studies’ on how children fare in homes headed by gay parents versus heterosexual parents.”)

1. Rational Basis Review

Bizarrely, the opinion of the court puts the cart before the horse. Normally, a court first explains what type of analysis is appropriate, and then analyzes the case. Here, the court first analyzed the case and then explained why the level of analysis was appropriate. The court gave the legislature’s limitation on marriage the lowest, most deferential level of scrutiny possible, and only afterwards did it explain why this was appropriate. Apparently Smith thinks a higher level of scrutiny is so patently inappropriate that it’s not even worth first explaining why.

Under this low-level review, a court basically accepts a legislature’s decision if the legislature gives a basically rational reason for it. Here, the court stated that the legislature could reasonably conclude that “for the welfare of children, it is more important to promote stability… in opposite-sex than in same-sex relationships” because heterosexual sex can naturally lead to the creation of children while homosexual sex cannot. The court also stated that “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.” The court cited “intuition and experience” as supporting this argument.

(I never realized that “intuition” was a legal standard; as for “experience,” the court doesn’t cite any.)

Regarding studies showing that children raised by same-sex couples fare no worse than children raised by opposite-sex couples, the court stated that “the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.” The court states, “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.”

(I think that calling something “common sense,” with no further explaination, is an evasion of argument – it’s really no explanation at all.)

The court discounts the precedent of Loving v. Virginia, the U.S. Supreme Court case that struck down bans on interracial marriage. The court states that Loving was decided in the context of a long history of racism, but that the analogy doesn’t hold because opposition to same-sex marriage isn’t necessarily based on irrationality, ignorance or bigotry. (Or so the court states.)

2. Marriage as a Fundamental Right

Having dispensed with its analysis, the court next take a step backward and states why it finds low-level scrutiny of the legislature’s decision appropriate. Under constitutional theory, a higher level of scrutiny would be required if a fundamental right were at issue or if a particular class of people was being denied equal protection under the law.

First the court explains why it does not believe a fundamental right is involved. It states that “whether the right in question is ‘fundamental’ depends on how it is defined.” Crucially, the court states:

The right to marry is unquestionably a fundamental right… The right to marry someone of the same sex, however, is not “deeply rooted”; it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.

This definition of the question is vital. One of the main thrusts of Lawrence v. Texas, the U.S. Supreme Court sodomy case, was that the court in the case it overturned, Bowers v. Hardwick, had defined the right at issue too narrowly, as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” when it should have analyzed the issue more broadly as whether adults have a fundamental right to engage in private, consensual sexual conduct of their choosing.

Incredibly, the court in Hernandez v. Robles specifically acknowledges Lawrence’s admonition to frame the question properly and then goes ahead and frames it incorrectly. It does so by engaging in circular reasoning: it states that the question should be narrowly framed because same-sex couples are seeking “access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples.” But the court can’t decide whether a rational-basis analysis is appropriate without first deciding whether a fundamental right is at issue. Oops.

3. Equal Protection

Under equal-protection analysis, a level of scrutiny higher than rational-basis scrutiny is appropriate if certain classes of people are being disadvantaged by a law. Courts have long held that laws creating certain classifcations merit higher scrutiny, primarily those based on race and those based on sex, along with a small number of others.

The court dismisses the notion that the same-sex marriage ban discriminates on the basis of sex, because the law does not disadvantage one sex over the other.

I generally agree. Sex discrimation is a weak argument in this field. However, one can argue that inter-racial marriage bans were unconstitutional despite ostensibly treating blacks and whites the same. On the other hand, the purpose behind such bans was to “keep the white race pure,” whereas there’s no analogous purpose here to privilege one gender over another.

Next, the court discusses classifications based on what it repeatedly calls “sexual preference.” (The use of a term that a great many gay people dislike shows that the majority judges have a tin ear for gay rights issues.) The court finds that such discrimination is not subject to heightened scrutiny here, because the law deals with characteristics relevant to an interest that concerns the State – namely, marriage. “A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State’s interest in fostering relationships that will serve children best.”

The court uses this as a pivot to return to rational-basis question. The court dismisses the argument that some same-sex marriage couples raise children, stating that the legislature’s decision was nevertheless rational. The court also dismisses the argument that some opposite-sex couples do not raise children, stating that “limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing.” That’s generally true, although the dissent states that the legislature could limit marriage to couples of fertile age (but the dissent doesn’t address fertile couples who just don’t want to have children).

4. Conclusion

The court concludes with a hope that “the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made.”

That last sentence rankles me. Minority rights should not be decided democratically. Then again, the majority of the court apparently doesn’t see this as a minority rights issue.

The concurring opinion is worse; I’ll get to that next.