Dale Carpenter offers an interesting discussion of how the New York court explained its decision that barring gay couples from marriage meets the not-very-demanding rational basis standard at The Volokh Conspiracy (which is fast becoming one of my favorite blogs). In case you don't know what the rational basis test is, Carpenter explains: "As I once heard Richard Epstein memorably describe it, the rational basis standard basically asks whether any fool could come up with a stupid reason for a bad policy."
And what stupid reasons did the majority in New York give that could have prompted the legislature to allow straight couples to marry but not gay ones? For one thing, Carpenter notes:
Children need permanence and stability in their lives. Yet the heterosexual relationships that produce them, said the court, “are all too often casual or temporary.” Homosexual couples do not become parents by “accident or impulse”; they must plan ahead and obtain children through adoption, artificial insemination, or some other “technological marvels.” Unstable relationships among heterosexuals therefore “present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”So the gays don't need marriage because we don't need shotgun weddings, choosing to make decisions about when and if to have children in a rational manner that, admittedly, is assisted by the biological fact that we can't conceive children without outside help. That's all well and good--even rational, one might say--but it does lead, as Carpenter notes, to the conclusion that "gay couples are likely to plan more responsibly for the upbringing of their children. We thus have less reason to worry about the children gay couples are raising."
While the court explains a rationale for offering marriage to straight couples, though, Carpenter notes that it never bothers to touch on a rational reason for the exclusion of gay couples. As he says, "The key question left unanswered by the court is, how does the exclusion of gay couples from marriage rationally advance the putative preference for heterosexual couples in child-raising?"
Of course, I find all this focus on children obnoxious; even absent them there are plenty of reasons for a couple to desire marriage and dozens of reasons why it would be rational for the government to allow--indeed, encourage--them to get married. But Carpenter is right when he points out that the New York Court of Appeals, while deciding not to offer marriage to gay couples right now, has left the barn door open for the state legislature. There may be a so-called "rational basis" for a law that allows straight couples to marry but excludes gay ones. But surely the bright minds of the legislature can think of numerous "rational" reasons to offer the same marriage rights to everyone.