Gay Parents - Better than All the Rest?

Kenji Yoshiro, a professor at Yale Law School brilliantly skewered New York's Court of Appeals' decision in Hernandez v. Robles (which held that the Statewide ban on same-sex marriages does not violate the State or Federal Constitution). See Yoshiro, Kenji, Too Good for Marriage, New York Times, July 14, 2006.

Prof. Yoshiro notes that the decision relies on two critical determinations one of which he refers to as the "reckless procreation" rationale. He explains:

“Heterosexual intercourse,” the plurality opinion stated, “has a natural tendency to lead to the birth of children; homosexual intercourse does not.” Gays become parents, the opinion said, in a variety of ways, including adoption and artificial insemination, “but they do not become parents as a result of accident or impulse.”

Consequently, “the Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”

To shore up those rickety heterosexual arrangements, “the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.” Lest we miss the inversion of stereotypes about gay relationships here, the opinion lamented that straight relationships are “all too often casual or temporary.”

Yes, behind every grey cloud is a silver lining. Who would have thought the Court's irrational opinion could be used to support the proposition that same-sex relationships were more stable than hetero ones - or that the children of such couples were less likely to need special protections. Justice Smith probably choked when he read the column.