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NYS Bar Association Same-Sex Couples Recognition Report 2004

NYS Bar Association Same-Sex Couples Recognition Report 2004

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Publicado porPaul Schindler

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Published by: Paul Schindler on May 17, 2011
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Should an appellate court find that same-sex couples seeking to be married

constitute a protected class, the court would be bound to apply some heightened level of

scrutiny. Under strict scrutiny, the Committee believes it unlikely that a court would

conclude that maintaining marriage exclusively for opposite-sex couples serves a

compelling governmental interest.

First, as important as a state’s interests in procreation may be, it is difficult

to see how this interest is substantially related to excluding same-sex couples from

marrying. Second, a state would appear to have a compelling interest in ensuring and

supporting a social structure designed to protect children and promote their well-being.

The issue, then, is whether limiting marriage to opposite-sex couples is a legitimate way

or, under strict scrutiny, is a substantially related way, to further that state purpose.

Some have argued that a state could conclude that a family with married

opposite-sex parents remains the optimal environment in which to raise children.

Consistent with that argument, at least three states have enacted legislation limiting the

right of gay men and lesbians to adopt or become foster parents and one federal court has

and privileging homosexuality”; (6) “Negative Externalities” – unwanted exposure to public affection by
gays and lesbians; (7) Procreation – the concern that allowing same-sex couples to marry would be
overinclusive because the entire point of marriage is to encourage procreation; (8) “Effect on Children” –
concern that children will not have two opposite-sex role models and the possibility that children of same-
sex couples will be “more likely to develop a homosexual orientation”; (9) “The effect on population” –
due to increased rates of homosexuality. Id. at 17-21.


upheld the constitutional validity of one of these statutes. These states have determined

that the state has at least a legitimate interest in excluding gay men and lesbians, and

same-sex couples, from parenthood.

Several courts examining these issues have concluded, however, that

children of same-sex parents fare largely the same as their peers raised by opposite-sex

parents. Indeed, by permitting same-sex couples legally to become parents, New York

State falls into this category. Also, a state’s interests may be bolstered by permitting

more committed couples – and their families – to enjoy the rights and to attend to the

responsibilities that come with marriage. If that is so, then it would follow that exclusion

of same-sex couples from the right to marry would not be necessary to promote a state’s

interests and may, in fact, undermine those interests. It could be argued in at least some

states, moreover, that the proper question is not whether prohibiting marriage of same-sex

couples substantially relates to the achievement of a state’s interest in promoting optimal

environments for child-rearing, but rather whether it substantially advances an equally

undoubted interest in avoiding deleterious environments. Taking all of these concerns

into consideration, the Committee has concluded that prohibiting same-couples from

marrying is not substantially related to the state’s valid interest in promoting the well-

being of children and thus, would not survive strict scrunity.

Finally, the State’s interest in maintaining the traditional model of

marriage may be difficult to evaluate. In weighing its significance, however, one must

take into account the Supreme Court’s rejection of the elements of distaste or moral

disapproval in Lawrence and Romer. One also might consider the thoughts of Judge

Greaney in his concurrence in Goodridge I. He noted that:


To define the institution of marriage by the characteristics of those
to whom it always has been accessible, in order to justify the exclusion of
those to whom it never has been accessible, is conclusory. . . . [T]he case
requires that we confront ingrained assumptions with respect to
historically accepted roles of men and women within the institution of
marriage. . . .

. . . To justify the restriction in our marriage laws by accusing the
plaintiffs of attempting to change the institution of marriage itself
terminates the debate at the outset without any accompanying reasoned

Ultimately, the Committee believes the State’s interest in maintaining

marriage for opposite-sex couples for reasons of tradition is not likely to survive a strict

scrutiny analysis.

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