Why does 'traditional' marriage matter?

We get some good answers from, of all places, the New York Supreme Court, which ruled last week 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."

(Gee, what a concept -- a judicial body recognizing that it is not a legislature, and leaving the legislating to the proper body.)

Here's the court's 4-2 majority opinion, on why traditional marriage matters (emphasis mine):

We conclude . . . that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted . . . both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement -- in the form of marriage and its attendant benefits -- to opposite-sex couples who make a solemn, long-term commitment to each other.
. . .
There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule -- some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes -- but the Legislature could find that the general rule will usually hold.

When that argument -- that children benefit from having "living models of what both a man and a woman are like," which the court later calls a "common-sense premise" -- is made by opponents of same-sex marriage, it's dismissed as so much discrimination and bigotry. Are they same dismissals so easy to issue toward New York's highest court? If not, why not? I'd argue that it's because the court, like the state, has a history of embracing more liberal outcomes, so it's not so easy to put the court in a little bigotry box like same-sex marriage supporters try to do with their other opponents. Will that lend credibility to the argument? Probably not.

Then, the court addresses, head-on, the claim that same-sex marriage opponents are prejudiced or engaged in sex discrimination:

If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice -- if we agreed with the plaintiffs that it is comparable to the restriction in Loving v Virginia, a prohibition on interracial marriage that was plainly "designed to maintain White Supremacy" -- we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving.

But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries -- at first by a few people, and later by many more -- as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began.

It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago. But the traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind.

The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.
. . .
By limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and men are treated alike -- they are permitted to marry people of the opposite sex, but not people of their own sex. This is not the kind of sham equality that the Supreme Court confronted in Loving; the statute there, prohibiting black and white people from marrying each other, was in substance anti-black legislation. Plaintiffs do not argue here that the legislation they challenge is designed to subordinate either men to women or women to men as a class.

The court then addresses the argument that it doesn't matter if a child is raised by two men, two women, or one of each:

Plaintiffs, and amici supporting them, argue that . . . a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex . . . To support their argument, plaintiffs and amici supporting them refer to social science literature reporting studies of same-sex parents and their children. Some opponents of same-sex marriage criticize these studies, but we need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the longterm results of such child-rearing.

And, I might add, there are studies from countries with longer-term experience that show the stability of same-sex marriages is much lower than in traditional marriage.

Finally, the court notes the argument -- a taunt, really -- that it would be nice to win now, but in the long run it won't matter; those interested in obliterating traditional marriage will eventually be victorious:

The dissenters assert confidently that "future generations" will agree with their view of this case. We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made.

Realistically, this practically guarantees that the leftward-tilting New York Legislature will impose gay marriage in New York, so I'm not convinced that the Legislature is a better option than a vote of the people, but it's certainly better than imposition by judicial fiat.