To Have and to Hold Wrongly

By Richard Cohen
Tuesday, July 11, 2006

There are exactly 316 benefits of marriage. I learned that from the decision of New York's highest court upholding the ban on same-sex marriage, which means that the often-wed Elizabeth Taylor has enjoyed these benefits 2,528 times, while a lesbian could not have any of them, despite having a stable relationship and a child or two. If it pleases the court, your decision is just plain idiotic.

I choose Taylor because she is everything this very important court (New York, after all) did not take into account in upholding its touchingly Victorian version of marriage. The majority decision, written by Judge Robert S. Smith, more or less said that marriage has traditionally been between opposite sexes -- and, until the legislature decides differently, it should stay that way. Reading the decision induces vertigo from page after page of circular reasoning.

More compelling, more logical, more humane is the dissent of Chief Judge Judith S. Kaye, who likened the ban on same-sex marriage to the one that once prohibited interracial marriage in 30 states. When, at last, the U.S. Supreme Court in 1967 finally outlawed this racist prohibition in the 17 states that still retained it, its defenders argued (much as opponents of homosexual marriage do today) that it was unnatural and contrary to the will of God. For some reason, He did not file an amicus brief.

With same-sex marriage, the issue, we are told, is children. Even though the court observes that same-sex partners are not likely to have a child by "accident or impulse," it goes on to say something downright mysterious: "[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." Those italics are my own insidious contribution because, really, there is nothing rational about such a belief. It is based solely and exclusively on staying in chambers or, when venturing out, going no farther than the ninth hole.

I am particularly and intimately close to one same-sex couple. I know their child, now a grown woman and -- should you ask -- heterosexual. She had the benefit of a loving home -- although her parents had none of the 316 legal rights and privileges mentioned above, some of them as mundane as visitation rights in a hospital. I can claim nothing special about her. She is neither better nor worse than people raised in more conventional circumstances. She is, though, the niece I love, and I know -- probably better than Judge Smith -- whereof I speak.

I know the children of similar relationships. Again, look as hard as you can and all you'll see are kids -- ordinary kids. I know many more children of heterosexual relationships, and once again it's a mixed bag. If you can find a rule here you either have better eyes than most social scientists or you are blinded by ideology. Throughout history, kids have been raised by a single parent, three parents, no parents (my father, the orphan) or in traditional, two-parent families, such as the killers of Columbine.

Judge Smith does suggest one salient point: As unjust as the present situation is, it should be the New York legislature's obligation to fix it, not the court's. This strikes a chord with me, since if we have learned anything in the 33 years since the Supreme Court insisted on the right to an abortion, it is that it's sometimes better to have such advances based on legislative, as opposed to judicial, decisions.

Gay marriage, like abortion, is a highly emotional issue and, at the moment, commands nowhere near overwhelming support. Depending on how the question is asked, and the polling organization itself, anywhere from 40 to nearly 60 percent of Americans oppose same-sex marriage. If the latter figure is accurate, permitting same-sex marriage by judicial fiat would produce yet another protracted fight over yet another social issue. Roe has been bad enough, thank you.

Yet the case for same-sex marriage is so much clearer and easier to make than the complexities that produced the tortured reasoning of Roe . It is based primarily on the easily understood and widely accepted words of the Declaration of Independence: "life, liberty and the pursuit of happiness ." Since none of the counterarguments can prove any damage at all to society, the New York state high court missed a chance to further an education process and, justly, grant to homosexuals and lesbians the benefits of marriage so casually granted to heterosexuals. Way before getting to 316, it's clear one of the benefits is as American as apple pie: the pursuit of happiness itself.

cohenr@washpost.com


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