The freedom to
marry: Keep dancing

"Is that all there is?" sang Peggy Lee.

I can't honestly say those were the first words that wafted through my head when I read the shocking plurality opinion of New York's high court last week, refusing to strike down the exclusion of same-sex couples from marriage. The first words were more like "twisted legal reasoning" (New York Times editorial, July 7), "callous and insulting" (Matt Foreman, National Gay and Lesbian Task Force), or "outdated and bigoted" (Howard Dean, Democratic Party).

Just five weeks after oral arguments in the freedom-to-marry cases brought by 44 couples and their children, the New York court of appeals (the state's highest court) ruled, 4-2, that it is not necessarily "irrational" for the law to exclude same-sex couples and their loved ones from marriage. Applying a toothlessly minimal scrutiny to the denial of something as important as the freedom to marry, the plurality held that the limitation of marriage to different-sex couples could be arguably justified on the basis of either of two possible rationales. First, heterosexuals, who can conceive children by accident, need the stability that marriage brings (whereas gay couples, whether or not raising children, do not). Second, the denial of marriage, in the court's words, could relate to the "intuition" that a "child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like," even though, the judges conceded, there is no actual evidence that this is so or that children raised in other homes, including by gay parents, are at all harmed.

Put aside for the moment, as the dissent explained, that "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." In fact, the plurality's strained rationalizing of the discriminatory exclusion fails on its own terms.

New York's ruling came just a week after the Arkansas supreme court unanimously rejected precisely the same proffered rationale; unlike the four-member majority of New York's highest court, the judges in Arkansas (!) instead relied on the evidence provided by experts in child welfare. That evidence was, of course, available to the New York judges. Institutions such as the American Psychological Association, the National Association of Social Workers, the American Psychiatric Association, the Association to Benefit Children, and the American Academy of Matrimonial Lawyers, among other authorities, submitted briefs to the court calling for an end to marriage discrimination in the interest of children and families.

And the very week of the New York decision, the American Academy of Pediatrics weighed in once again with an authoritative statement titled "The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children" (see the academy's full analysis on www.freedomtomarry.org). The nation's kids' doctors know best--and here's what they said:

"There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents' sexual orientation and any measure of a child's emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with one or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families."

Not only was this evidence, this kind of careful consideration of what truly helps couples and kids missing from the New York plurality opinion, so was any actual logical connection between the ends ostensibly sought (promoting stability, helping children) and the means chosen (denying that stability and help to others). As Chief Judge Judith Kaye explained in her powerful and persuasive dissent (required reading for all Americans who want to understand why our nation needs marriage equality: www.freedomtomarry.org), "it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State's interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion."

Under proper equal protection analysis, neither the "accidental procreation" rationale for heterosexual "stability through marriage" nor the "best interests of the children" rationale for favoring one kind of family holds up as a justification for the denial of gay people's freedom to marry.

As the dissent pointed out, "Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate 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.... [After all,] no one rationally decides to have children because gays and lesbians are excluded from marriage."

The plurality's failure to even consider the lived realities of the 44 plaintiff couples, their kids, and the hundreds of thousands of gay New Yorkers and their families injured by the denial of marriage undoubtedly contributed to the retrograde and astonishing suggestion that the different-sex restriction on marriage somehow helps kids. In fact, as Judge Kaye noted, "the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against." That would be so even if the "intuition" that there is one "best kind of family" were true---irrelevant as that is to kids who, after all, have the families they have, and don't deserve the laws making their family's life any harder.

So why did Peggy Lee come to mind today? I got an e-mail from a friend this morning. She asked me if, 10 years after winning the marriage trial in Hawaii, which turned on the state's failure to show that excluding gay couples from marriage in any way helped children, I could believe that we were hearing such illogic, such obliviousness to the needs of same-sex couples and their kids, such insufficient justifications for denying something so important as marriage yet again--and in New York, no less.

Is that all there is? I thought. All they've been able to come up with since we refuted these same unsubstantiated and unconnected assertions a decade ago? In fact, this is all they've got to justify dragging out the pointless exclusion of gay couples from marriage. I believe we need to take people's concerns and questions seriously; that's why I wrote my book, Why Marriage Matters. When people start to think it through, pushing past their discomfort, all the opponents of equality have left is a strained and unconvincing set of assumptions--intuitions---that can only be thought to pass muster on the most minimal level of constitutional scrutiny. The perpetuation of discrimination rests on habit, inertia, fear, and conjectural rationales belied by evidence and logical connection. If we do our job of giving people the information enough times over enough time, all they will have left is, as Lincoln put it, "as thin as the homeopathic soup made by boiling the shadow of a pigeon that had starved to death."

The silver lining of the decision is, ironically, its thinness, illogic, and refusal to consider the lives of real people, including gay families, and the real meaning of the denial of the human experience that is marriage. While the dissent makes a convincing legal and moral case, the plurality and concurring opinions will present no impediment to a court or decision-maker wanting to do what is right and willing to apply real scrutiny to a constitutional and moral wrong. As the Human Rights Campaign's Joe Solmonese put it, "If nothing else, this ruling will cause people---gay and straight alike---to reflect on this judge's unusual view of gay marriage and then come to their own conclusions."

And, because, in the words of The New York Times, "New York's highest court has harmed both the constitutional guarantee of equal protection and its reputation as a guardian of individual liberties by denying same-sex couples the right to marry," not just gay people, but also nongay, as people who care about fairness and equal protection under the law, are rightly feeling dissed and pissed. The Times editorial concluded, "Those who favor gay marriage need to quickly move past this week's disappointment and get energized. That also applies to those in the other states where courts have failed to uphold the rights of all Americans."

So what next?

In one of his characteristically eloquent and heartfelt pieces, Andrew Sullivan got it mostly right. Sullivan unduly disparages the important and legitimate role of the courts (those of us who respect America's precious system of constitutional guarantees and checks and balances, unlike right-wingers who criticize judges for doing their job, criticize judges only for not doing their job). But his bottom-line is right-on: "We have the better arguments. Let's make them to the people and their elected representatives, and we'll win in the end."

In New York now, this means the fight redoubles and shifts to the court of public opinion and the legislature, as a broad nongay and gay coalition spearheaded by the Empire State Pride Agenda and other groups, holds public officials such as likely next governor Eliot Spitzer, New York City mayor Michael Bloomberg, the assembly speaker, and the senate majority leader to their obligation to end this pointless discrimination. In other states we rightly and strategically press forward both in the courts and the legislatures, looking to historic achievements such as California's passage of a marriage bill in 2005 and Massachusetts's repudiation of an antigay attack, both vindicated at the polls when not a single pro-marriage elected official was defeated because of his or her vote. And, meanwhile, in all states we make the case for fairness and equality and why marriage matters around kitchen tables, in the workplace, in places of worship, and in our speaking out, person to person, group to group.

And as we make the case, breaking the inertia that allowed this court to stumble, we take heart that more and more nongay people now are joining us in speaking out. They are making their voices heard in the courts, as in the breadth of friend-of-the court groups assembled by Lambda Legal, the American Civil Liberties Union, the National Center for Lesbian Rights, Gay and Lesbian Advocates and Defenders, and the law firms at their sides. They are making their voices heard in the court of public opinion, as witness the American Academy of Pediatrics and the pledges of candidates such as the Democrats running for governor in both California and New York. And they are making their voices heard from the courts, making the case as commonsense and inescapable as these words from Chief Judge Kaye:

"The true nature and extent of the discrimination suffered by gays and lesbians...is perhaps best illustrated by the simple truth that each one of the plaintiffs here could lawfully enter into a marriage of convenience with a complete stranger of the opposite sex tomorrow, and thereby immediately obtain all of the myriad benefits and protections incident to marriage. Plaintiffs are, however, denied these rights because they each desire instead to marry the person they love and with whom they have created their family."

In the course of the New York litigation, the discussion around who gay families are, what equality means, and why marriage matters pushed public opinion from 47% in favor of ending marriage discrimination to 53%. Against the power of our truth and the inevitable rise to ascendancy of younger people who favor the freedom to marry, opponents of equality have only increasingly hollow appeals to "intuitions" and "traditions" that merely perpetuate rather than justify discrimination, present but curable discomfort that manifests itself in illogic and---here's where the ball is in our court---inertia that results from the failure of those who care to speak up and take action.

"Is that all there is? If that's all there is, my friends, then let's keep dancing," sang Peggy Lee. If dancing means engaging others, by all means let's dance; this discordant, tinny ruling did not stop the music. And if dancing means, well, dancing, then let's keep working until all committed couples can dance, with family, friends, and loved ones, at their weddings, pursuing happiness, celebrating their commitment and love, equally protected by the law and the respect due every person.