The “oops” argument

Update: Maggie Gallagher is discussing this rationale over at marriagedebate.

With a 53% majority in New York supporting full marriage equality for same sex couples, it shouldn’t be very long before the current discriminatory marriage law is addressed by the legislature – as this week’s Court of Appeals decision suggests is appropriate.

Although the Court has made ridiculous the “activist judges” meme that is the heart of the pro-Marshall/Newman amendment campaign here in Virginia, the decision itself (available here as a PDF) contains some curious reasoning.

It is undisputed that the benefits of marriage are many. The diligence of counsel has identified 316 such benefits in New York law, of which it is enough to summarize some of the most important: Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.

The Court goes on to discuss some possible rational grounds for the legislature to offer these benefits only to different sex couples:

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and avoid instability, in opposite-sex than in same-sex relationships. Hetersexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as the result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The legislature could also find that these relationships are all too often casual or temporary. 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. It thus could choose to offer an inducement – in the form of marriage and its attendent benefits – to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. [emphasis mine] 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. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

The court seems to be saying here that, because gay and lesbian couples generally have children because we want families and plan for them, we don’t need the stabilizing influence of the state. By contrast, because so many straight couples create children by accident, they require state intervention in order to make sure these unplanned children actually have families to raise them.

In other words, intentionality and family planning should be punished, while irresponsibility and impulsive behavior should be rewarded with government benefits?

It seems to me that this logic is faulty. If straight couples are “all too often” accidentally having children that they didn’t plan to have, isn’t the answer education and better access to birth control? After all, there are so many children in need of adoptive homes in the first place because of the impulsive behavior of straight couples. Gay people are hardly, as the Court points out, responsible for creating this situation. It is beyond irrational to deliberately handicap the gay families that step up to provide homes for some of these unplanned children.

Besides, this is not a zero-sum game. The supply of stability is not finite. Facilitating stability in same sex relationships doesn’t take stability away from different sex relationships, and nowhere does the Court suggest a mechanism by which it would.

This speculative rationale is left dangling, almost like a taunt. Significantly, the Court explicitly reminds us that the legislature could, if it wished, come to a different conclusion using different reasoning. There is an open invitation before the legislature to act in a way that doesn’t strain understandings of the term “rational,” and that would be infinitely more powerful than a court ruling that takes the responsibility out of their hands.