Tuesday, October 18, 2005 New York Law Journal
State Claims 'Rational' Basis for Same-Sex Marriage Ban
Panel Skeptical about Argument Not Based on 'Compelling' Interest
ALBANY -- <snip> In 90 minutes of arguments before the Appellate Division, Third Department, the state abandoned one of its two major defenses and struggled to sell the other.
Deputy Solicitor General Peter H. Schiff told the justices that while there is no compelling state interest in banning homosexual marriage, the state's prohibition survives a rational basis test on the strength of its historic commitment to providing a stable environment for children.
<snip> "Well, what does that have to do with it?" asked Judge Anthony J. Carpinello, a question asked in various forms by several judges.
Mr. Schiff attempted to explain that with the possibility of accidental procreation, the state has an interest in promoting marriage so children will hopefully be born in physically and emotionally stable settings. But that argument appeared to trouble the court, especially since there is no possibility of accidental procreation in a homosexual relationship.
"That is a little bit of a stretch, wouldn't you say?" responded Presiding Justice Anthony V. Cardona.
<end excerpt>