The idea that same-sex 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. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.
-- NY Court of Appeals Ruling Upholding Same Sex Marriage Ban*
This is an exaggeration as discussed by a chapter in The Case For Same-Sex Marriage by William N. Eskridge Jr., a 1996 book that spells out the social (something promoted by a few well known conservatives as well) and constitutional reasons for authorizing such a path. Various cultures from ancient times understood this as at least "even possible," some arguably allowing some form. Due process and liberty overall is influenced by tradition, but hyperbole is sort of cheating.
Of course, marriage has changed over the years, including the "relatively new" concept of truly equal roles of women. Spousal rape was only clearly actionable in New York per a 1980s appellate ruling. And, as the dissent noted, tradition "is to say only that the discrimination has existed for a long time." The past does include irrational, ignorant or bigoted activities, though we develop as a society, so we should not be overly judgmental, assuming our ancestors were somehow truly backward people. It is not an either/or.
But, honestly, tradition seemed the strongest leg for the ruling to stand on. One could appeal to pragmatic separation of powers concerns, suggesting "social or economic legislation" should generally be left to the legislature. And, the concurrence in small part referenced that, but tradition seemed the main focus. This is how things were done. The ruling started off with a dismissive nod (fairly legitimately) to the idea that just because the statutory language was gender neutral, obviously it was intended not to be. Then, we get "rational" reasons for the discrimination. Why is this allowed? The "right to marry" was traditionally understood as covering different sexes. Thus, a stricter test is not required.
The two opinions came to this conclusion by basically skipping over the tough parts.** A particularly telling example is that (except for a vague reference) a ruling broadly protecting marriage rights, even among those with life prison terms, honoring all aspects of the institution. Thus, the repeated suggestion that procreation is at the core of the fundamental right of marriage was overblown. The suggestion seemed to be used to back up the truly dubious "rational" reasons for discriminating against same sex couples. Why was it rational? Well, apparently many reasons are available, but the plurality offered two, which the concurrence did not deny:
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. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. ... These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. ... [Second] 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.
This is inane. I recognize the pragmatic concerns here and all, and surely, there are at times problems with avoiding a troublesome issue in a way that stands up to scrutiny. So, question begging reasons are proposed to cover one's tracks. For instance, generally you need to have intentional discrimination. Well, yes, and "intentionally" the legislature benefited one view of gender roles. Stereotypical gender roles are at the core of sex discrimination. Yes, Loving v. Virginia barred "equally" not allowing blacks to marry whites, and vice versa, but that was clearly racist. Unfortunately, the NAACP (in an amicus brief) did not quite want to separate the two. Here, the sexual classification was not "designed to subordinate either men to women or women to men as a class." Stereotypical sex roles seem to do this, but overall, I think sexual equality probably is broader than that anyhow.
Back to the "rational basis" reasons for the discrimination. It is unclear how burdening homosexuals is necessary to further first goal. You supply marriage rights to all. The current path harms homosexuals, which is particularly inane given New York policy now supports gay parenthood, including respecting adoption. This raises questions about the second goal, which only is furthered (and the opinion does not really go there) if we argue that denial of rights encourages those who otherwise might go into same sex parenthood to go the heterosexual route.
"While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing." Life is a bit messier. The argument ignores bisexuality, pressured by current societal norms. In other words, same sex families can be a "result of accident or impulse" as well. Meanwhile, the policy discriminates against children by denying those in same sex relationships any number of securities. As the dissent notes, it is not legitimate to promote a policy "privileging some children over" others in this way.
The dissent disagreed that homosexuality should be treated using the rational basis test, one "where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement." CJ Kaye argued homosexuality is rarely relevant, they had to suffer a history of discrimination, and relatively speaking, are politically disadvantaged. Anyway, political power is not the ultimate test, since increased rights of women and blacks do not change the rights of equality. Likewise, women have "distinguishing characteristics" too ... note classifications in the military, statutory rape, rest rooms, paternity testing in various situations, and so forth. Thus, they have heightened, but not strict scrutiny. Homosexuality should as well.
But, as she says, the rational basis test is not satisfied either. Surely, not for the reasons offered. It might be argued that social science research (and societal development/acceptance) has not clearly determined to the degree a court can use it in this sense that same sex parenthood are equal to different sex parenthood. At least, to the degree that both should have full rights in all particulars. [Thus, my civil unions idea.] But, given NY allows gay adoption, I am not sure how far one can take that in this case. And, yes, marriage is different from the rights to a private relationship. Lawrence v. Texas. Still, marriage is more than children. I like this idea that the only reason why we are benefiting heterosexuals that have no kids is that to single them out would be overly intrusive. This might work, if we ignore who are being harmed.
Perhaps, we might want to avoid the question, but you really need to do better than this. To end on a telling note: the concurrence notes that the sex specific approach is “how marriage is defined in the Federal Defense of Marriage Act." Now, I am willing to say that past court precedent on marriage rights were generally (but not always -- see Zablocki, in which Powell felt necessary to concur in part since the broad language might be interpreted to allow same sex marriages, another point the majority tellingly ignored) written and joined by justices who understood them to cover different sex couples. But, as noted by Lawrence, traditional understandings change over time. The ruling also implies a "take it slow approach," especially in its listing of various things it did not do.
All the same, a discriminatory anti-homosexual law is not really a good place to go to determine what the NYS Constitution demands. In fact, it only underlines that:
It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation.
---
* [Correction] I have been told that there are two "Smiths" on the NY Court of Appeals, and one wrote the "plurality" (2), one joined the concurrence (2), making it (2-2)-2, one not participating. The two opinions are not really too different. Two, per an opinion by Chief Judge Judith Kaye (who, in 1991, dissented to a ruling respecting visitation rights of a lesbian couple), dissented. One did not take part. Gov. Pataki (R) should be pleased to know his appointees played a major role in the result, again showing the possible importance over the judiciary while voting for an executive.
** Thus, the ruling was pretty short, around twenty pages even with the usual few pages of statement of facts, etc. It did avoid one way out. The Supreme Court in the early 1970s summarily disposed of an appeal to a state ruling that held the Constitution did not protect same sex marriage. They had to do so since it was one of those cases they had to decide, and the usual path taken was brief orders saying there was no substantial federal question. What this means, especially after doctrine changed in the last thirty years is unclear.
The NY Court of Appeals refused to say this meant gay marriage was therefore a decided question, perhaps because such a procedural move would have any number of unfortunate effects on any number of issues. NY practice on state constitutional doctrine is to follow the Supreme Court on equality, but take a broader approach respecting due process (narrowly understood by the concurrence, but the opening is there), so this had some added relevance.