Out In The Mountains : News - Clouds and Silver Linings

Clouds and Silver Linings
News on the Marriage and Family Fronts

by Beth Robinson

      Win some, lose some - these are the ebbs and flows of a civil rights movement. We’ve taken some hits recently, no question about it. But the news isn’t all bad. We have every reason to be angry - and optimistic.
      On July 6, in a 4-2 decision, New York’s highest court rejected a constitutional challenge to the exclusion of same-sex couples from civil marriage. The court concluded that since heterosexual couples can conceive children in casual relationships (an unlikely scenario for gay couples), the State has a special incentive to give heterosexual couples an inducement to maintain stability (i.e. marriage, and the accompanying social, economic, and legal protections). Plus, though it acknowledged that there is not any actual evidence that children raised by same-sex parents are worse off, the court expressed its “intuition” that children are better off with a father and a mother.
      Chief Judge Judith Kaye dissented strongly, expressing confidence that “future generations will look back on (the) decision as an unfortunate misstep.” Rejecting the suggestion that the ability to procreate is a prerequisite to the right to marry, she noted that elderly couples who cannot procreate can marry, and many same sex couples do have children. And Judge Kaye recognized that “the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.”
      Ironically - and this is good news - the New York court issued its decision the very same week that the American Academy of Pediatrics (hardly a bastion of liberal activism) affirmed once again, in a thorough assessment of 25 years of research, that “there is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents.”
      On the basis of such evidence, on June 29th of this year, the Arkansas Supreme Court struck down a 1999 regulation that excluded gay people and heterosexuals with gay household members from serving as foster parents. In its unanimous decision, the Arkansas high court, in contrast to New York’s, actually considered the evidence, concluding, “the facts demonstrate that there is no correlation between the health, welfare, and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual.”
       The State’s argument to the contrary, the court said, “flies in the face of the evidence.”
      The Court found that the exclusion was based not on children’s welfare but rather on “views of morality and . . . bias against homosexuals.” More good news. July 12th provided more reason for hope, and for indignation.
      The Massachusetts Legislature adjourned until November the constitutional convention regarding a proposed amendment to write discrimination in marriage into that state’s constitution. Cooler heads prevailed.
      In the meantime, a trial court in Connecticut was not so thoughtful. The Superior Court judge upheld that state’s refusal to issue marriage licenses to same-sex couples because that state’s “civil union” law provided them with the tangible state law benefi ts of marriage. The trial court’s decision contradicted the conclusion of the Massachusetts Supreme Court, which concluded in 2004 that relegating gay couples to a separate category like “civil union” is unconstitutional. The Connecticut court dismissed the offi cial legal separation of gay and straight relationships as a matter of mere “rhetoric,” and concluded that the institution of marriage no longer has social signifi cance, so gay couples weren’t missing anything. The Connecticut plaintiffs will no doubt appeal.
      Vermont Freedom to Marry Task Force Field Director Robyn Maguire responded to the Connecticut and New York decisions with ire.
     “These decisions are a call to action,” Maguire said. “We’re long past the time when courts in this country can trample the civil rights of GLBT people on the basis of flimsy legal argument that ignores the lives of real people and the undisputed evidence from impartial research.”
     Urging all Vermonters to join the struggle, Maguire balanced her reaction with hopefulness.
     “The question on the table is not whether or not we all like marriage; it’s whether each and every one of us - whether or not we would choose to marry - will continue to be excluded and marginalized by Vermont’s laws.
     Vermonters, and Americans, are fundamentally fair people. If we do the work - if we organize, educate, and share our stories - they will ultimately treat us fairly.”

Beth Robinson was co-counsel to the plaintiffs in Baker v. Vermont and currently serves as Chair of the Vermont Freedom to Marry Task Force.