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The Case for Legal Recognition of Same-Sex Marriage, 8 J Journal of Law and Policy Volume 8 | Issue 1 Article 2 1999 The aC se for Legal Recognition of Same-Sex Marriage Pamela S. Katz Follow this and additional works at: https://brooklynworks.brooklaw.edu/jlp Recommended Citation Pamela S. Katz, The Case for Legal Recognition of Same-Sex Marriage, 8 J. L. & Pol'y (1999). Available at: https://brooklynworks.brooklaw.edu/jlp/vol8/iss1/2 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Journal of Law and Policy by an authorized editor of BrooklynWorks. THE CASE FOR LEGAL RECOGNITION OF SAME-SEX MARRIAGE Pamela S. Katz* INTRODUCTION Gay and lesbian unions have been treated like an "elephant in the living room" by our law-making institutions. Everyone knows that they exist-their children are in schools, their deeds are recorded in county offices, their domestic partnership certificates are filed with local clerks, and their battles over custody, visitation and property distribution are witnessed in the courts-yet, every state has refused to recognize gay and lesbian unions, and instead our legislatures and courts skirt around their perimeter. As a result, our legal system has created a patchwork of rules and rights applicable to couples of the same-sex and their children that often vary depending on the county, city, or judicial district in which they reside, or the institution at which they are employed. This inconsistent body of law creates instability, uncertainty and chaos, conditions which are unacceptable in a nation where due process and liberty are paramount values. By prohibiting the establishment of a family through the means most widely recognized in our culture-i.e., marriage, states effectively prohibit full participation in American society by lesbians and gay men and their children.1 The family is the most * Assistant Professor of Legal Studies, The Sage Colleges; J.D., Georgetown University Law Center, 1986; B.A., State University of New York at Binghamton, 1983. Many thanks to Kathryn McCary, Diana Gatewood, Francisco Laguna and Todd Katz for their helpful comments and suggestions. Thanks also to James Gardner for his guidance and to Richard Steinbach for his support. See Same-Sex Marriage in New York, by the Committees on Lesbians and Gay Men in the Profession, Civil Rights, and Sex and Law, with an Addendum JOURNAL OF LAW AND POLICY important organizing unit of our society. For its mem- bers-spouses, parents, and children-it provides emotional support, security, commitment, and a sense of belonging. It cannot be disputed that sexual orientation is irrelevant to the enjoyment of these basic human rights. Nothing about sexual preference makes one more or less desirous, capable, or worthy of those rights. For society at large, families provide stability, responsibility for others (especially children), and economic interdependence. The state interest in a stable society is advanced when families are estab- lished and remain intact. This is true regardless of the gender of the spouses. The exclusion of homosexuals from the marriage franchise has tangible consequences that detrimentally impact same-sex couples and their children. These families are denied access to the regime of rules and rights provided by domestic relations laws, including the right to equitable distribution and spousal maintenance upon dissolution of the union, and the right to visitation for the non- natural parent of the child.2 In addition, certain pension rights and income tax advantages under federal law are not available to those who are not "spouses" under the law.3 In New York, for example, non-legal spouses do not have rights upon the death of their life by the Committee on Matrimonial Law, 52 THE RECORD 343, 357-64 (Associa- tion of the Bar of the City of New York ed., 1997) (listing the benefits of marriage). The United States General Accounting Office compiled a report on the benefits associated with civil marriage that identified 1049 federal laws in which benefits, rights and privileges are contingent upon marital status. U.S. GENERAL ACCOUNTING OFFICE, PUB. No. B-275860, LETTER REPORT 1-2 (1997) (responding to a request by the House in connection with the enactment of the Defense of Marriage Act). 2 In re Alison D. v. Virginia M., 572 N.E.2d 27, 29-30 (N.Y. 1991). 3 See, e.g., I.R.C. § 401(a)(11) (1994) (providing pension benefits to surviving spouses); I.R.C. §§ 1041, 2056, 2523 (1996) (providing non-taxable transfers to spouses). Certainly, there are some benefits to unmarried cohabitators under federal income tax law. See I.R.C. § 1 (1999) (providing income tax rates that in some instances penalize married couples); I.R.C. § 32 (1999) (setting out credits that require married couples to file joint returns); I.R.C. § 151(c)(2) (1999) (denying deductions for personal exemptions to married dependents); I.R.C. § 219(g) (1999) (limiting retirement savings deductions for certain married individuals). SAME-SEX MARRIAGE partners, so that when one's partner dies, the relationship is wiped out as if it never existed.4 Once gay and lesbian marriages are afforded the same rights and responsibilities as heterosexual marriages, their unions will be established, maintained, and dissolved according to a set of rules developed in accordance with a consistent and thoughtful public policy. Working, living and having children within a secure and caring family unit will cease to become a guessing game requiring a stack of legal documentation and a thick skin. The whole cloth of marriage will replace the confusing patchwork that exists today. This Article will make the case for ending the uncertainty and ad hoc decision-making that has enormous consequences for gay and lesbian individuals and their children. First, the Article considers the basis for the existing public policy on marriage and the realities that militate for change. Next, the Article considers substantive due process jurisprudence and the right to marry under the United States and New York State Constitutions, and concludes that the right to marry for people choosing partners of the same sex is a logical application of an existing fundamental right. The Article then considers the Equal Protection Clauses of the United States and New York State Constitutions and applicable federal and state case law. It examines the ban on same-sex marriage as a form of gender discrimination that must be afforded heightened scrutiny or, in the alternative, as a form of sexual orientation discrimination that may be given heightened scrutiny. Finally, the Article examines the "state interests" that have been, or may be, posited to support a ban on same-sex marriage, and concludes that, even under rational basis scrutiny, the governmental interests are not rationally advanced by the prohibition of same-sex marriage. It is important to be clear that permitting civil same-sex marriage is not equal to endorsing homosexuality. Rather, it is a 4 See, e.g., N.Y. PUB. HEALTH LAW § 4301(2) (McKinney 1985 & Supp. 1999) (denying non-spouses the right, without explicit directives from the decedent, to make decisions about the burial or disposal of the decedent's remains); N.Y. EST. POWERS & TRUSTS LAW §§ 4-1.1, 5-1.1-A (McKinney Supp. 1999) (denying non-spouses the right to intestate succession or right of election); N.Y. C.P.L.R. 4504(c)(1) (McKinney 1992) (denying non-spouses the right to waive the doctor-patient privilege of decedent for litigation purposes). JOURNAL OF LAW AND POLICY recognition of the realities of today's families, and a response to the need for a coherent and consistent public policy. Approximately eight to ten million children in America are born into families with a gay or lesbian parent.5 Acknowledging that these parents have established a legal relationship for the purpose of granting rights and developing procedures would not mean that the state is approving homosexuality, just as laws regulating the dissolution of marriage do not signify a governmental preference for divorce. Government must act to fill the void-to recognize that there is an elephant in the living room and to confront it. I. PUBLIC POLICY ON MARRIAGE In a democracy, it is the people who drive public policy, as public policy ideally reflects the will of the people. Yet, the actions and reactions of the courts, legislatures, and government agencies regarding a particular issue, such as same-sex marriage, powerfully influence how the public will view the issue, assign judgments, and direct public policy. As a result, this process of formulating public policy is circular. It creates a situation where social facts that should contribute to the policy, and are known to the public, but not necessarily recognized by government, are ignored and are left out of the circle. Consequently, the policy itself may bear little relationship to the social facts related to the issue-i.e., the policy is driven by "myth" rather than by empirical fact. One seeking to 6 change the policy must "demythologize" more than "disprove" it. The policy of all fifty states to prohibit civil marriage between people of the same-sex is based on narrow, discriminatory and unrealistic myths of the family and of gay and lesbian unions. 5 In re Alison D., 572 N.E.2d at 30 (Kaye, J., dissenting) (citing Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and other NontraditionalFamilies, 78 GEO. L.J. 459, 461 n.2 (1990)). 6 CYNTHIA DANIELS, AT WOMEN'S EXPENSE: STATE POWER AND THE POLITICS OF FETAL RIGHTS 100 (1993). SAME-SEX MARRIAGE A. The Myths The myths about gays and lesbians and their families are widespread and rather unflattering.
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