Then Comes Marriage (9 page)

The New York Court of Appeals had already recognized, in the adoption cases, that same-sex couples were raising children. And in this case, the state had conceded that it would be good for those kids for their parents to be married. So then we got to what I like to call the “slutty heterosexuals” argument. This was the argument that straight couples needed to be allowed to marry because, unlike gay couples, there was the possibility that they could accidentally get pregnant and have children.

Clearly, as this Court has recognized in
Jacob
and
Dana
and as the New York legislature has recognized, same-sex couples throughout this state are having children. It's good for those couples to be married. The state concedes that. It would be good for those children for their parents to be married. The state concedes that. So . . . procreation, in and of itself, doesn't work [as an argument against same-sex marriage].

So then you get to accidental procreation . . . What that says is, because only heterosexuals can accidentally procreate, or procreate with “minimal planning”—although I have to tell you, I'm not sure I understand what that means.

I had to pause here while everyone in the courtroom cracked up. But the next point I made was dead serious:

Because only straight couples are in that situation, then it's okay for only straight couples or straight families to be afforded the protections of marriage. But that suffers from the same flaw. Because, if you have to look at who is not included . . . you are not helping any children anywhere in New York by excluding same-sex couples from marriage. And in fact, given the state of New York policy; given the fact that so many same-sex couples exist in this state that it would be good for them and good for their children, I think that this Court could only conclude that drawing the line to keep straight families in and same-sex families out is irrational.

I felt I was making a strong showing—but was I making headway with any of the three judges whose votes we needed? A few minutes later, this exchange with Judge George Bundy Smith made it seem like I might be gaining some ground.

JUDGE GEORGE BUNDY SMITH
: Suppose we agree with you. What follows? We say, “Okay, we've got to give a marriage license. Gays can be married.” What will be the result, the practical results of that?

ME
: There's an excellent brief on that, Judge Smith, that I would refer you to. It was filed by [Mary Bonauto of] the Gay and Lesbian Advocates and Defenders in Massachusetts. And they talk about what happened in Massachusetts after the
Goodridge
decision.

JUDGE SMITH
: I'd like to know what will happen here. What do you contend will happen?

ME
: What I would say is, exactly what's happened in Massachusetts, which is basically nothing. There is nothing that has been seen as unusual about this. There's not people rioting in the streets of the Commonwealth of Massachusetts. There's not a breakdown of civil society in Massachusetts. And there surely isn't a breakdown of marriage in the Commonwealth of Massachusetts . . . Public opinion is overwhelmingly in favor of what's happened there. So I would say the same thing.

My time ended on that note, but I would have one more chance to make my case in the few minutes I had reserved for rebuttal. I would be the last lawyer to speak, and I wanted to leave the judges thinking about the strongest points of our argument.

But first, I would have to get past the distraction of Judge Robert Smith.

As much as I liked and respected Judge Smith, it had been very tough facing him. He took every opportunity to try to poke holes in my argument, but that was to be expected. What I did not expect was his demeanor: he clearly knew how he was going to vote, and he seemed to be enjoying playing the contrarian.

During my rebuttal, Chief Judge Kaye urged me to revisit the procreation argument, which, as she noted, “has been so extensively urged by your adversary.” I took it up again:

Let me be clear on procreation. First of all, we're not running away from procreation, Your Honors. We believe that there is, of course—that procreation has something to do with marriage. But the problem with the procreation argument is—

And it was here that Judge Robert Smith began snickering. The best thing I could have done was ignore it, but my years of knowing Bob first as a mentor, then as a colleague, and then as a law partner took over. “I see Bob”—
whoops!
—“Judge Smith, excuse me, laughing.” At that moment, he was not a judge in a case I was desperate to win; he was just Bob, the Paul, Weiss partner with whom I had worked so closely. I then quickly pulled myself together.

It has a lot to do with marriage. We can see that too. But the point is, that in the analysis this court does under the rational basis test . . . it looks not only at the people who are included in the classification, but it looks at the people who are excluded by the classification. And to answer one of George Bundy Smith's questions, there are 46,000, more than 46,000 families in this state that are same-sex families with children.

And there is no dispute here that there is no rational interest being served in procreation, in stable families or in healthy children, happy children, in excluding those families from the benefits of marriage. . . . There's absolutely no connection.

When my time expired, I knew I had done the best that I could. Our chances were slim, but I still had hope that we might have turned one of the judges our way. Now all we could do was wait.

FIVE WEEKS AFTER
the argument, on the morning of July 6, the court released its decision. When it came down, I was despondent. We had lost, 4–2. And what made it even worse was reading Judge Robert Smith's majority opinion, which essentially said that gay parents were not as good as straight parents. As a new gay parent myself, reading a passage like this was deeply painful:

[T]he 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 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.

“Intuition and experience” tell us this? My intuition and experience told me that children do far better growing up in loving, stable families, regardless of the parents' sexual orientation. I was shocked that Judge Smith had actually included such a weak argument at the heart of his opinion, but his opinion soon became even worse. Incredibly, he also used the slutty heterosexual argument as a basis for his decision:

[T]he 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 . . . 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.

In other words, because straight people might accidentally get pregnant, we had better offer them marriage as a way to promote stability. Gay people cannot have children by accident, so they and their planned-for, much-wanted children don't need the benefits and protections of marriage and are on their own. The whole argument was irrational and absurd. I was deeply disheartened that we had had our chance to make history and had lost, but I was especially disappointed that the reasoning behind our loss did not even acknowledge, much less grapple with, the arguments about New York being different that we had so carefully developed in our briefs and in court.

In her opinion, Judge Kaye made mincemeat out of these arguments, but it was only a dissent:

Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the
exclusion
of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.

Of course, there are many ways in which the government could rationally promote procreation—for example, by giving tax breaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave to parents. Any of these benefits—and many more—might convince people who would not otherwise have children to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage.

James Esseks, the ACLU lawyer, summed up one of the great ironies—and great disappointments—of the New York decision:

A week or so before we got that terrible decision from Bob Smith in
Hernandez
, we had just won a decision from the Arkansas Supreme Court in which we had challenged, under the Arkansas state constitution, a statute that barred foster parenting by gay people or by any family that had a gay adult in it, if it was not the parent.

The crux of the argument made by the state of Arkansas to defend its ban on foster parenting was that gay people were bad for kids. And the factual findings by the state trial court judge in Arkansas and the decision by the state Supreme Court made it clear that that was all ridiculous.

So then, the core of Bob Smith's opinion a week later is that it's constitutional for the state of New York to exclude same-sex couples from marriage out of a theoretical possible potential concern by the legislature that gay people might be bad for kids. I thought, “How can it be that we can win this issue in Arkansas and we can't win it in New York? The world has turned topsy-turvy.”

With the exception of Judge Kaye's eloquent dissent, everything about the
Hernandez
decision was disappointing. If I could not get someone like Judge Robert Smith to understand how incorrect and illogical his reasoning was, what hope did we have? Were gay couples always going to be denied the protections of law and the respect of the state?

It certainly felt that way. And an incident three weeks later only served to underscore the fact that, for too many people, gay parents were not viewed as legitimate parents.

A few weeks after our son Jacob was born, I had started the process of adopting him. I was grateful that the
Jacob
and
Dana
decision made it possible for me to adopt him in the first place—but because we were a lesbian couple, we had to go through a formal second-parent adoption, as if I were a stranger to my own son. (People sometimes ask us if our son Jacob was named after the adoption decision. Proud as I am of it, Jacob Philip is named after Rachel's and my grandfathers, in keeping with Jewish tradition.) This meant that we had to fill out reams of paperwork and compile stacks of documentation, including, among many others, letters from Harvard, Columbia Law School, Paul, Weiss, our friends, former classmates, our synagogue, even our doctors. We also had to schedule a visit from a social worker to check our home and make sure we were both suitable parents. Once again, just as at the hospital following Jacob's birth, we were going through indignities that no straight married couple would have to suffer. And to add insult to injury, although we could afford it, it wasn't cheap.

Rachel, not surprisingly, was outraged about this. She wanted to sue the state of New York, to formally protest having to jump through all these hoops just because we were gay. “Honey,” I said, “I really prefer to file the lawsuits, not be the plaintiff in one of them.” I certainly shared Rachel's frustration, but I just wanted to get through the adoption process as quickly as possible and without any snags. Having no legal tie to Jacob made me extremely anxious. I was petrified that something might happen to him, or to Rachel, and we would have some horrible legal complication on top of everything else. I just wanted to get it done. Even though Rachel's family loved me and automatically regarded me as equally Jacob's mother, not having any legal rights to my child terrified me.

The most irritating part, from our perspective, was the social worker visit. We had to schedule—and pay for—a social worker to come to our home, interview us, and write a report. This is the same kind of visit required for people who take in foster children, but our situation was completely different. We were not strangers to Jacob; Rachel was his biological mother, and he had been living with us since he was born. Rachel just could not believe we had to submit to this, and on the morning the social worker came to our house, in late July 2006, she was fuming.

Rachel is a direct person—a truth-teller—especially when she thinks an injustice is being done. She rarely hides her opinions, preferring to engage with others, even if that means challenging some unspoken social rules. So all I could think from the moment that our doorbell rang was this was a situation full of potential land mines.
Please let us just get through this as quickly as possible.
The social worker seemed pleasant enough, but as she poked and prodded about my childhood, my relationships with my parents and brother, Rachel's previous girlfriends, her political activism, my salary, and our finances, I could not wait for the hours-long interrogation to end. Rachel and I answered the multitude of extremely intrusive questions as best we could, and finally, mercifully, the social worker stood up to leave.

I was thrilled. Knowing how anxious I was, Rachel had been circumspect and polite throughout, even when asked some particularly prying questions, and it seemed clear that we had passed the test. We saw the woman out of our apartment, and I breathed a sigh of pure relief. “Well, thank God that's over,” said Rachel. “That was unbelievable.”