Gay Marriage and the Liberal State at Law & Society Blog

Gay Marriage and the Liberal State

Published by Manfred Gabriel July 7th, 2006 in Law and Society

There is an interesting article in the NY Times this morning (registration required) about yesterday’s decision by the New York Supreme Judicial Court to deny that a right to gay marriage exists under the New York state constitution.

Here is a taste:

Opponents of gay marriage immediately hailed the New York decision as a sign that the legal and political campaign toward gay marriage nationwide had stalled. More than 40 states have laws that restrict marriage to a man and woman, and no high court or state legislature has granted gays a right to marry anywhere except Massachusetts.

Mr. Stewart, of the Marriage Law Foundation, said he was particularly pleased by the “superb and straightforward legal analysis” of the New York decision. He argued that it would provide a foundation for jurists in other states to restrict civil marriage to a man and a woman.

Specifically, Mr. Stewart praised Judge Robert S. Smith for refusing to use the racist legacy of miscegenation laws as a justification for extending marriage rights to same-sex couples. Too often, Mr. Stewart said, trial court judges and politicians are cowed by the premise that barring their unions would be the same as barring people of different races to marry.

“It’s going to carry a lot of intellectual clout with other judges around the country,” Mr. Stewart said.

David S. Buckel, senior counsel and director of the Marriage Project at the Lambda Legal Defense and Education Fund, which is pressing court cases to legalize gay marriage, acknowledged that the New York decision “will certainly be an opinion that other states will look at.”

Yet Mr. Buckel and other supporters of gay marriage said parts of the ruling could shock judges and other Americans into seeing gay marriage in a favorable light. In particular, they noted one section suggesting heterosexual couples need marriage to be preserved as a way to shore up their faulty relationships and protect their children who might suffer in broken-home situations.

“It’s a mess of a decision that in the end makes a very weak argument: That you can justify barring same-sex couples from marrying because of the unstable relationships of heterosexual couples,” Mr. Buckel said.

I agree that the reasoning is weak, because it doesn’t explain why a gay person must be refused the right to visit his or her severely injured partner (to take one example of the benefits bestowed by marriage) so that a heterosexual couple somewhere might be a little more likely to marry and a little less likely to divorce. Even under the lenient rational-basis test, the court should show that the means chosen by the state (restricting marriage to man-woman unions) is even capable of achieving the legitimate state aim (chanelling potentially procreative unions into environments beneficial to child-rearing). The court views the benefits of marriage as an incentive for heterosexual couples to marry:

Since marriage was instituted to address the fact that sexual contact between a man and a woman naturally can result in pregnancy and childbirth, the Legislature’s decision to focus on opposite-sex couples is understandable. It is not irrational for the Legislature to provide an incentive for opposite-sex couples — for whom children may be conceived from casual, even momentary intimate relationships — to marry, create a family environment, and support their children.

But denying the incentive to gay couples doesn’t increase the incentives of marriage for heterosexual couples. Where is the suddenly-pregnant young couple that would decide not to marry, despite tax breaks, custody, support obiligations and so forth, because someone else is or isn’t married?

Ultimately, of course, the argument against denying the legal benefits of marriage to gay couples is the foundation of the liberal state itself: The state mustn’t regulate what it needn’t regulate. This is the essence of the harm principle. Since gay marriage isn’t a threat to either physical safety or property of anyone else, the state has no business “protecting” us from it.