wenglund wrote:Here is part of the ruling in Hernedez v Robles:
"We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.
"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. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.
"The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. 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. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally [*4]offer the benefits of marriage to opposite-sex couples only.
"There is a second reason: 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. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their{**7 NY3d at 360} mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.
I can provide other examples, but hopefully this will suffice.
Oh, how fun! Let's talk about the Prop 8-in-reverse case! I'm sure you have some insightful legal analysis to offer, Wade, so that we can infer how the U.S. Supreme Court would interpret the federal constitution based on how a state court interpreted a state constitution!
Further to that consideration:
Hernandez, 7 N.Y.3d at 362:
In general, we have used the same analytical framework as the Supreme Court in considering due process cases, though our analysis may lead to different results. (My emphasis.)
Wade, let's begin with the threshold question of whether the Court of Appeals of New York applied the correct standard of review to this case. So go ahead and make your case that rational basis was the right standard for this case, keeping in mind that:
--no court in the United States disputes that marriage is a fundamental right;
--gender is generally considered to be a suspect or quasi-suspect classification in constitutional jurisprudence; and
--your favorite church concedes that gay couples are entitled to legal protection as a class.
Okay, Wade. Explain why rational basis is the correct standard here. We'll move on from there.
