Define That Term #124
Monday's NY Blawg Round Up

Hernandez v. Robles--What Is "Marriage", Anyway?

That's what the New York Court of Appeal's decision in Hernandez v. Robles, 2006 NY Slip Op 05239,  boils down to as I see it--the very essence of marriage. 

I found that reading the majority and concurring opinions was like playing a game of mental leapfrog.  The logical flow of the arguments was convoluted at best.  And, the dissenting opinion wasn't much better. 

I think the underlying problem with this decision is the Supreme Court's determination that marriage is a fundamental right.  The Supreme Court made this determination to right a wrong--anti-miscegenation laws that forbade interracial marriage.  But, by doing so, in my opinion, the Supreme Court constructed a logistical framework that was not easily transferable to other issues, such as this issues raised in this case.  (Roe v. Wade is another example of a similar phenomenon.) As a result, the attempts by the various state courts to construct logical arguements either in favor or against gay marriage fail.

The majority and concurring opinions rely on the assertion that marriage is all about procreation.  The following is quoted in the concurring opinion:

Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated and socialized

I find the concept of the government attempting "regulate" heterosexual behavior through the institution of marriage to be completely offensive and have half a mind to run out and get a divorce just to defy authority and stick it to the man.  Marriage is about far more than "heterosexual sex", and many heterosexual couples marry and never even have children, for any number of reasons--including personal choice or infertility.

What I find to be problematic about this decision is that each side conveniently ignores facts or scenarios that create glaring holes in their argument.  The concurring and majority opinions attempt to differentiate homosexual relationships from heterosexual relationships by virtue of the possibility of a child being conceived from fleeting moments of passion in heterosexual relationships.  While that is certainly a true observation, that's not the only way children are conceived in heterosexual relationships, and in fact, more and more children are being conceived through fertility treatments, or are adopted, which the majority and concurring opinions fail to even acknowledge: 

Although many same-sex couples share these family objectives and are competently raising children in a stable environment, they are simply not similarly situated to opposite-sex couples in this regard given the intrinsic differences in the assisted reproduction or adoption processes that most homosexual couples rely on to have children.

I simply do not see how heterosexual couples undergoing fertility treatment or the adoption process  are subtantially different from homosexual couples doing the same thing.  Some heterosexual couples are identically situated to homosexual couples in that regard.  Therein lies the fundamental (and I hate to use that word!) flaw in their logic that they conveniently gloss over. 

And, the attempt to differentiate gay marriage prohibitions from interracial marriage prohibitions is convoluted and circular, simply by virtue of the fact that it's illogical to make that claim.  For example, take this paragraph from the majority opinion and substitute the words "same-sex" with "interracial" and "different sex" with "same race':

The idea that same-sex (*interracial*) marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex (*same race*). A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

The prohibitions are one and the same, except that a different classification is forbidden.

While I find the dissent's position to be more palatable, from a personal standpoint, there are logical flaws inherent in that argument as well, the primary one being that raised by Slickdpdx in this post at his blog knownunknowns and in the comments to my prior post on this decision:  that the dissent's position arguably allows for polygamous marriages, and Judge Kaye never addresses that possibility.

That being said, the following quotes from her decision in which she frames the various issues made far more sense to me than the majority and concurring opinion's attempt to frame the issues did:

But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights...

Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them...

Correctly framed, the question before us is not whether the marriage statutes properly benefit those they are intended to benefit—any discriminatory classification does that—but whether there exists any legitimate basis for excluding those who are not covered by the law...

Under the Domestic Relations Law, a woman who seeks to marry another woman is prevented from doing so on account of her sex—that is, because she is not a man. If she were, she would be given a marriage license to marry that woman...

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...

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...

Nor does this exclusion rationally further the State's legitimate interest in encouraging heterosexual married couples to procreate. Plainly, the ability or desire to procreate is not a prerequisite for marriage. The elderly are permitted to marry, and many same-sex couples do indeed have children...

The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare, as defendants do not dispute...

The bottom line for me is that the government should not be involved in marriage at all.  There should simply be religious and/or civil unions which are recognized by the state after they've occurred.  The state should play no part in the creation or approval of those unions , and thus the right to marry is not, in and of itself, a "fundamental" right, since it's not state-sanctioned.  It simply falls under the umbrella of the fundamental privacy rights already established.

I'm not quite sure where polygamy fits into that proposed scheme, though.  While I personally find the concept of polygamy to be objectionable, I'm not sure why it should be forbidden by the government.  The more I think about it, it seems to be yet another form of discrimination.  However, I haven't looked into it in depth, and would love feedback on that issue.

So, that's my take on this momentous decision.   What's yours?


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>>>The bottom line for me is that the government should not be involved in marriage at all.

That was my initial reaction as well, but it's simply not workable. Because there are legal benefits to marriage, the gov't has to specifically define what it is. Otherwise, I marry my dog Spot, and take the deduction on my taxes. (Okay, not a canine, but you get the idea.)

I thought the dissent was weaker than the majority. The dissent simply poo-poo's the majority's stated rational basis for denying marriage to same sex couples, and thinks that's an argument. In fact, I think the dissent proves that the issue is indeed a political issue and accordingly, it belongs in the legislature, not in the courts.


p.s. However, I have to agree that the emphasis the majority places on procreation as a reason for marriage is silly in the year 2006. It's an example of the judicial ruling class being out-of-touch with what's happening on the ground. They need to go to Walmart more often. Two worlds.

Nicole Black

You're totally correct re: the need to define marriage, Richard, and I know that *that's* a flaw in my own "philosophical" concept. But, it's far more palatable to me in theory than any of the arguments made in this decision. But, in practice, my proposed construct would likely run into any number of problems. Oh well, that's what happens when you shoot from the hip!


The majority opinion is almost a waste of paper. Why isn't the concurrence the majority opinion?


Slick--why ask why? ;)

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