I ♥ NY

Judge R.S. Smith, your ass is mine.

(No, NSA, I don't mean that literally. More to the point, I don't mean that seriously. I very clearly don't mean it literally. Anyway...)

Today the highest court in my favorite state in the land ruled against gay marriage. Now, when I saw the verdict, I was only minorly pissed. I'm not intimately familiar with our state constitution (heck, I could barely tell you how a bill becomes a law...or how a bill becomes a bill, for that matter). It was entirely possible that sending the issue to the states was the best step. That is, it was entirely possible, until I started reading the decision. Motherfucker! What a douche. I really just disagree with most of his premises, his methods, and his conclusions. I'll go through them until I feel like stopping, which will probably be after the "can rationally believe..." section.

OK, Domestic Relations Law implies clearly that marirages are to be between members of the opposite sex because of terms like "husband" and "wife." I buy that. Moving on to the Constitution...

The plaintiffs want to say the law goes against both the Equal Protection Clause ("No person shall be denied the equal protection of the laws of this State or any subdivision thereof") and the Due Process Clause ("No person shall be deprived of life, liberty or property without due process of law"). Judge Smith (hereafter Jud Smee) acknowledges the many benefits of marriage.

He writes, "The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples." So this is what he wants to figure out. Is there any possible rational reason for denying these benefits to same-sex couples--or, to phrase it in the way he seems to think of it, to grant them only to opposite-sex couples. First of all, I think that's a major distinction. He really seems to see marriage not as a fundamental right at all, but as something the state can choose to grant to someone if it foresees state benefit. I don't really think this is the right way to look at it...marriage, as the conservatives tell us, is an institution that has been around for a very long time. We expect marriage. It's not a privilege the state decides to grant...it is an expected part of adult life. Moving on...he concludes that there are two rational reasons why the state would support marriage for one kind of couple but not the other.

"First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships." What's his reasoning for this? The "vast majority of children" are born in heterosexual relationships. It's true. But since when do we oppress the minority of children? There are children regularly, if not frequently, being born into gay relationships. He says that the legislature could find that the unions that bring about children (straight ones) are too unstable, and it is to the benefit of children to stabilize them via the tool of marriage. Since gay couples don't have kids by accident, this doesn't apply to them. I suppose this could be rational...if we were just coming up with the idea of marriage today. "Hey, there are too many babies without fathers. Maybe if we provide an incentive for them to stay, they will!" Does he really think any rational person TODAY thinks of marriage solely as an institution to give love children stable homes? To protect kids born as a "result of accident or impulse?" Because people can't control their genitals, when they fuck and fuck up and have kids, we need to bribe the parents into taking care of them. Is it just me, or is this part of the reasoning astoundingly odd?

"There is a second reason: 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." Oh, this old saw. I need to let Jud Smee continue here, for just another sentence: "Intuition and experience suggest 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." Oh, well, if intuition and experience say so, then it must be rational to believe it. First of all...intuition? Aren't we sure intuition is frequently mistaken. I'm sure I intuit many wrong things...first impressions of people, physical laws, etc. The only way intuition gets any credit is if it's based on experience or research, so let's turn to that. What experience does he mean? He talks about a "general rule" that this is so. Where does this come from? Has he really compared and contrasted living situations? Does he think most people have? The experience that YOU benefited from both of your parents doesn't count. One example is not enough to base a rational decision on. And just because many people make irrational conclusions, doesn't make those conclusions rational. (Plus, every adult I know is messed up. Every day, living models are most likely mediocre if not downright bad every day, living models.)

He goes on to talk about social science studies: "[T]he studies on their face do not
establish beyond doubt that children fare equally well in samesex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences." I've looked at these studies and, yeah, they're based on small samples. But they're based on statistically significant samples and they do show no marked differences. While this may not be totally conclusive, it does mean there's no scientific reason to think kids will do worse. Jud Smee acknowledges this but says the lawmakers could proceed "on the common-sense premise that children will do best with a mother and father in the home." It's not common sense...it's totally unbased! Since these studies show kids do as well, if people had any experience with kids raised by two moms or two dads, they'd know (collectively) that those kids do just as well. Intuition or "common-sense" without this experience is meaningless and not a basis for a rational decision.

OK, that's all the Jud Smee I can take for now. His decision just irked me. I'm not editing this, so there may be random errors...sorry for those. And, yeah, it's annoying how he talks about "sexual preference." That's poor form, Jud Smee. Poor form, indeed. Well, hopefully if/when Spitzer's in charge of this state he'll push gay marriage through the legislature. It's time we realize we're fucking people over and not helping anyone. No, legally it's not a PERFECT parallel to Loving v. Virginia and all the interracial marriage stuff, but I'm convinced the emotions behind it are the same. Gay people are a convenient "other." Come on, kids. Gay people aren't the other...they're not exactly like straight people, but I think if the crazy right people got to know a few, they'd realize they're just people...as fucked up as straight folks, but just as great, too. (And occasionally, just a little bit greater. Shh.)