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New Developments in the Same-Sex Marriage Wars:
The Fight Over the Issue in New York, and the Growing International Acceptance and American Rejection of "Genderless" Marriage

Tuesday, Dec. 13, 2005

For the short term, same-sex - or "genderless," as some opponents refer to it -- marriage will remain illegal in New York. Ten months ago, a New York trial court ordered its legalization. But now, the decision has been reversed.

New York's highest court, though, has yet to weigh in - and surely will in the near future. Nevertheless, the reversal fits into a growing trend: Same-sex marriage is increasingly being rejected in the U.S., even at the same time that it is increasingly accepted internationally.

The Same-Sex Marriage Landscape in New York

In the last year, trial courts in four New York counties have ruled on the legality of the state's marriage laws, which, though gender-neutral, have been interpreted to ban same-sex marriage.

Three counties rejected the constitutional challenge before them, holding that the state's exclusion of same-sex couples from civil marriage was not inconsistent with the state constitution's guarantees of equal protection and due process.

But a fourth - a trial court sitting in Manhattan - reached the opposite conclusion. Justice Ling-Cohan held last February, in Hernandez v. Robles, that the New York Constitution guarantees the right of marriage to same-sex couples.

In the opinion, which I have written about in a previous column, the court wrote eloquently about the undeniable harm inflicted upon the five plaintiff-couples, and upon same-sex couples generally, by the law's exclusionary approach. It held, in the end, that the due process and equal protection clauses of the New York Constitution each, independently, formed a basis for invalidating the law. And it ordered the issuance of marriage licenses, following a thirty-day stay.

The government attempted to appeal the case directly to the state's highest court, the New York Court of Appeals - bypassing the intermediate appellate court. But the New York Court of Appeals refused to take the case.

The appeal thus landed with the appellate division, where the government succeeded in getting the ruling reversed.

The Appellate Court's Decision: Deserving of Criticism

The appellate court criticized both the substance of the lower court's ruling, and the remedy it ordered. Substantively, it disagreed with the trial court, holding that the New York law was not in conflict with the New York Constitution. And when it came to remedy, the appellate court felt the lower court should not have, in its view, essentially rewritten the marriage laws without giving the legislature the chance to remedy any constitutional defect.

In fact, the appellate court is the one that deserves harsh criticism. Its ruling only superficially analyzes the constitutional issues involved. And it reflexively endorses a view of traditional marriage that not only excludes same-sex couples, but also compromises modern views of equality for women.

The court's analysis on the constitutional question had little to do with the constitution. The crux of the court's reasoning, instead, depended upon a handful of claims about the purposes of civil marriage -- purposes that, by definition, cannot be served by same-sex couples. The court's reasoning was nearly circular - and obviously faulty.

The court noted that the state's existing marriage law "systematically regulates heterosexual behavior," and concluded from this that the law constitutionally could be limited to heterosexual marriages. The old logical fallacy that "What is, is right" -- or in this case, "What is, is constitutional"--was prominently on display.

This notion that marriage is a way of taming men's sexuality has old historical roots, but has reemerged as a central tenet of the modern conservative family values movement.

A call for such taming appears, among other places, in The Future of Family Law: Law and the Marriage Crisis in North America, a report released earlier this year that calls on heterosexual marriage to avoid "the passive, unregulated heterosexual reality [of] multiple failed relationships and millions of fatherless children."

This report was quoted in a recent decision from a New Jersey appellate court decision, Lewis v. Harris, which upheld the state's exclusionary marriage law.

That decision (which Linda McClain and I have written about in a prior column), like the recent one in New York, focused on the purportedly unique purposes served by heterosexual marriage, and claimed - unpersuasively - that these purposes would somehow be compromised by opening up the institution to same-sex couples.

But this too makes little sense. Even if marriage controls "unruly heterosexual desire" for straight couples, that hardly means it serves no purpose for gay couples. Isn't homosexual desire sometimes unruly? The same conservatives who once bemoaned gay "promiscuity" now would withhold from gay couples this supposed desire-controlling institution. How can they have it both ways?

And more to the point, the supposed desire-controlling role of marriage hardly erases the plain inequality - condemned by the New York Constitution - of restricting it to straight couples alone.

Not Just a Blow to Gays' Equality, But Also a Blow to Women's Equality

The appellate decision in Hernandez also cites the state's preference for children to be born and raised in what the court deems the "optimal" setting: a household with their married, biological parents. The opinion speaks of "heterosexual marriage as the cultural, social and legal ideal" that serves both to discourage unmarried childbearing and encourage married childbearing. Adoption and infertility plainly have no place in the court's ideal.

The concurring opinion, written by Judge Catterson, specifically invokes a concept of the modern marriage and family values movement by referencing the state's interest "in providing the benefits of dual-gender parenting." The idea here is that mothers and fathers perform different and unique parenting functions - and two same-gender parents, whether both male and both female, cannot cover the same spectrum.

This view deems the hard work of being a single parent (by fate or by choice) not only non-ideal, but actually deficient and incomplete. It limits human personality and caretaking by gender, implicitly calling caregiving men and ambitious women aberrant - and perhaps even harmful to their children. And it sticks its head in the sand, simply refusing to see the happy, healthy kids - biological or adopted - that gay couples are already raising in the many states that permit them to adopt, when all witnessing this would take is a visit to a playground.

This approach also pretends that empirical questions about whether men and women really do perform innately different functions as parents (beyond the obvious biological roles they play in reproduction) have been definitively answered. They haven't been - and we should be very wary of answering them too quickly or easily, lest we play into stereotypes of women's and men's roles and qualities.

Moreover, this call for dual-gender parenting has a cost beyond the exclusion of same-sex couples from the institution of marriage. The same reasoning - as scholars Mary Anne Case and Linda McClain have argued -- calls on women in heterosexual relationships to fill traditional, stereotypical, and often subordinate roles. And, for same-sex couples, it creates an unattainable requirement - and, it seems, may be intended to do just that.

The war on same-sex - or "genderless" -- marriage can be seen in a variety of settings. A commission appointed by the New Hampshire legislature to study same-sex marriage and its legal equivalents just released a report, for example, declaring that: "Genderless Marriage is Not Good for New Hampshire."

The report recommends against the adoption of any meaningful legal recognition for same-sex couples in New Hampshire, and, indeed, urges passage of a constitutional amendment banning same-sex unions. Ironically, it also specifically concludes that "New Hampshire should remain committed to creating a welcoming environment for its gay and lesbian citizens to live with dignity and respect." How "welcoming" is embedding an amendment in the state constitution that singles out one group of citizens saying they can never marry? Imagine how welcome any group would feel if targeted by such an amendment.

In reaching its recommendations, the reports condemns "genderless" marriage as not "marriage" at all, and refers vaguely to the "research" ostensibly proving that two women or two men cannot provide an appropriate environment for childrearing. The very label "genderless" is terribly misleading - since a relationship with two women or two men is not without "gender"; it is simply not "mixed-gender."

The New Hampshire report joins the recent decisions in New York, New Jersey, as well as those in other jurisdictions, in keeping same-sex marriage in the United States restricted to Massachusetts. That trend is inconsistent with modern notions of equality - and increasingly, with developments abroad.

International Developments: An Opposing Trend

Internationally, the landscape is also changing - but in a different and more progressive direction. A significant development comes from South Africa, where the Constitutional Court recently held the country's Marriage Act unconstitutional, in Minister of Home Affairs v. Fourie, because it defines marriage as a union between a man and a woman.

Joining Canada, Spain, Belgium, and the Netherlands, the South African court's ruling paved the way for same-sex marriage. The court spoke persuasively about the country's evolving family forms, and the need for the law to recognize social change and avoid the marginalization or persecution of gays and lesbians. Excluding them from the institution of civil marriage, the Court reasoned, was not a minor historical relic, but, rather, a modern affirmation of their outsider status - an unacceptable message, given the Constitution's guarantee of equality. The court reasoned that the law, instead, should embrace the right of gays and lesbians to marry - "a major symbolical milestone in their long walk to equality and dignity."

In terms of remedy, the Constitutional Court considered two possibilities. First, it could add the words "or spouse" after the words "or husband" in the Marriage Act. This would be sufficient to make clear that a person of either gender could have a husband or wife.

Second, the court considered adopting a proposal from the South African Law Reform Commission to create a new Reformed Marriage Act, which would give legal recognition to all forms of marriage, but also to retain the existing Marriage Act. Under this scheme, marriages celebrated under either act would be legally identical, but officiants could restrict themselves to opposite-sex marriages celebrated under the traditional act.

In the end, however, the court laid out the possibilities without selecting one. Instead, it gave the South African Parliament one year to consider and adopt a scheme that would make civil marriage available to same-sex couples, as required by the court's interpretation of the South African Constitution.

(This same approach was taken here in both Vermont and Massachusetts: the state's highest court ruled the ban on same-sex marriage unconstitutional, but gave the legislature the opportunity to craft a new law meeting constitutional standards. In Vermont, the legislature responded with civil unions, a marriage-alternative that is now available to same-sex couples. In Massachusetts, the legislature simply ignored the Supreme Judicial Court's invitation to pass new legislation, and the celebration of same-sex marriages began at the expiration of the six-month stay.)

A Still-Unsettled Landscape Suggests Same-Sex Marriage Wars Will Persist

Taking stock of the landscape reveals it to be persistently unsettled. The recognition of same-sex marriage in one American state has not, so far, led to a cascade effect in other jurisdictions. Perhaps, instead, it has refueled and reenergized the movement against same-sex marriage, and the movement against progressive values more generally.

The rally against so-called "genderless" marriage is troubling both because it obscures the discrimination and hardship being suffered by same-sex couples, as they remain excluded from one of society's most important institutions, and quietly encourages a return to traditional marriage that was highly unsatisfactory for women.

South Africa's approach - both the bottom-line and the eloquent and convincing reasoning used to reach it - is a much more heartening cry.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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