Seizing upon an illogical argument previously embraced by the Indiana Court of Appeals, a majority of New York’s highest court ruled on July 6 that it is rational for the Legislature to have excluded same-sex couples from marriage in order to encourage heterosexuals, who might carelessly or accidentally conceive children, to marry . . .
Smith’s opinion is irrational even in its mode of organization. So eager is he to begin with the ending that he prefaces his analysis with the stark declaration, “We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.”
Smith’s “rational basis” discussion echoes the recent ruling by the Indiana Court of Appeals in Morrison v. Sadler, appalling in its bizarre rendition of vacuous stereotypes. The Indiana court theorized that while same-sex couples can only have children as a result of deliberate intention through adoption or donor insemination, opposite-sex couples can have children through carelessness, accidents (broken condoms, drunken orgies, what have you), or indirection, and thus the Legislature could rationally believe that the purpose of providing the rights and benefits of marriage should be used as an incentive to corral those careless breeders into bonds of matrimony.
Of course, Smith utterly fails to explain why not letting same-sex couples marry advances this goal of getting opposite-sex couples to do so.
The New York court's opinion in Hernandez v. Robles did not specifically adopt the Indiana Court of Appeals' logic in Morrison v. Sadler by reference, although the court does cite the opinion in a discussion of other states which had found their state constitutions permitted legislative bans on same-sex marriages. The logic used by the two courts, however, in finding the legislature's actions rational is strikingly similar as Leonard points out.