A Stitch in Haste

A little fisking:

In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home.

Just like it was "common-sense" in 1909 that women were too stupid to vote or that separate but equal was perfectly okay? Since when are hunches, or random guesses, a rational basis for lawmaking, or for statutory and constitutional interpretation? And of course, if you believe "that children will do best with a mother and father in the home," then there is also no rational basis not to ban gay adoption (or adoption by single people, for that matter) or artificial insemination of lesbians (or of single heterosexual women, for that matter). But, again, "arbitrary" is now synonymous with "rational." Go figure.

But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries -- at first by a few people, and later by many more -- as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began.

So Loving was "just about race"?

The right to marry is unquestionably a fundamental right (Loving, 388 US at 12; Zablocki v Redhail, 434 US 374, 384 [1978]; Cooper, 49 NY2d at 79).

Oh, so Loving wasn't "just about race." Thanks for clearing that up.

On the overinclusive/underinclusive argument:

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. 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. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.

So, anti-gay discrimination is "rational," but limiting marriage (which, remember is "all about the children") to heterosexuals who actually can and want to have children is "arbitrary and unreliable." Discrimination is fine if fixing it would be "too hard"? Better to drown the baby in the bath water than throw it out with the bath water?

One consolation prize:

[W]e reject defendants' argument that the Supreme Court's ruling without opinion in Baker v Nelson (409 US 810 [1972]) bars us from considering plaintiffs' equal protection claims...

Baker v. Nelson is on my list of the Ten Worst Supreme Court cases. I'm glad to see a high court smack down its invocation by the bigots, even in this sad context.

Maybe some thoughts on Chief Judge Kaye's dissent later.