Too Good for Marriage (re: Argument vs. Gay Marriage)

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July 14, 2006
Op-Ed Contributor
Too Good for Marriage

By KENJI YOSHINO
New Haven

LAST week, New York’s highest court voted 4-to-2 that a legislative ban on same-sex marriage did not violate the state Constitution. In doing so, it added to the patchwork of state rulings on the issue, including those of Indiana and Arizona (which similarly upheld legislative bans) and Massachusetts (which struck down a legislative ban).

What’s noteworthy about the New York decision, however, is that it became the second ruling by a state high court to assert a startling rationale for prohibiting same-sex marriage — that straight couples may be less stable parents than their gay counterparts and consequently require the benefits of marriage to assist them.... <snip>

But the New York court also put forth another argument, sometimes called the “reckless procreation” rationale. “Heterosexual intercourse,” the plurality opinion stated, “has a natural tendency to lead to the birth of children; homosexual intercourse does not.” Gays become parents, the opinion said, in a variety of ways, including adoption and artificial insemination, “but they do not become parents as a result of accident or impulse.”

Consequently, “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.”

<snip> This is not the first time courts have restricted rights with a flourish of fond regards. In 1873, the United States Supreme Court upheld an Illinois statute prohibiting women from practicing law. Concurring in that judgment, Justice Joseph Bradley observed that the “natural and proper timidity and delicacy” of women better suited them to “the noble and benign offices of wife and mother.”...

http://www.nytimes.com/2006/07/14/opinion/14yoshino.html?th=&emc=th&pagewanted=print