In New York, the court ruled in effect that irresponsible heterosexuals often have children by accident — we gay couples, in contrast, cannot get drunk and adopt in one night — so the state can reserve marriage rights for heterosexuals in order to coerce them into taking care of their offspring. Without the promise of gift registries and rehearsal dinners, it seems, many more newborns in New York would be found in trash cans.
At least the New York court acknowledged that many same-sex couples have children. Washington’s judges went out of their way to make ours disappear, finding that “limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.” Children, the decision continues, “tend to thrive in families consisting of a father, mother and their biological children.’’
A concurring opinion gave the knife a few leisurely twists: due to the “binary biological nature of marriage,” it read, only opposite-sex couples are capable of “responsible child rearing.” These stunning statements fly in the face of the evidence about gay and lesbian parents presented to the court. Similar evidence persuaded the high court in Arkansas to overturn that state’s ban on gay and lesbian foster parents.
What the New York and Washington opinions share — besides a willful disregard for equal protection clauses in both state Constitutions — is a heartless lack of concern for the rights of the hundreds of thousands of children being raised by same-sex couples.
Even if gay couples who adopt are more stable, as New York found, don’t their children need the security and protections that the court believes marriage affords children? And even if heterosexual sex is essential to the survival of the human race (a point I’m willing to concede), it’s hard to see how preventing gay couples from marrying increases heterosexual activity. (“Keep breeding, heterosexuals,” the Washington State Supreme Court in effect shouted, “To bed! To bed! To bed!”) Both courts have found that my son’s parents have no right to marry, but what of my son’s right to have married parents?
A perverse cruelty characterizes both decisions. The courts ruled, essentially, that making my child’s life less secure somehow makes the life of a child with straight parents more secure. Both courts found that making heterosexual couples stable requires keeping homosexual couples vulnerable. And the courts seemed to agree that heterosexuals can hardly be bothered to have children at all — or once they’ve had them, can hardly be bothered to care for them — unless marriage rights are reserved exclusively for heterosexuals. And the religious right accuses gays and lesbians of seeking “special rights.”
Savage does manage to find a silver lining in these disappointing court decisions. "If heterosexual instability and the link between heterosexual sex and human reproduction are the best arguments opponents of same-sex marriage can muster, I can’t help but feel that our side must be winning," he says. "Insulting heterosexuals and discriminating against children with same-sex parents may score the other side a few runs, but these strategies won’t win the game."