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Who's Afraid of Gay Marriage?--A Commentary by William Eskridge, Jr. and Darren Spedale

The following op-ed originally appeared on www.abcnews.go.com.

Who's Afraid of Gay Marriage?

By William Eskridge and Darren Spedale

The New York Court of Appeals just heard oral argument in four same-sex marriage cases; a decision is expected this summer. An odd thing about New York's showdown is that Attorney General Elliott Spitzer, a proponent of same-sex marriage, defended the state exclusion. As did New York City's Counsel, who answers directly to Mayor Michael Bloomberg, another fan of gay marriage. What's going on here?

It may be a matter of professional ethics. The Attorney General is supposed to defend the state's laws against constitutional attack, even if he is a political critic of such laws. But former Attorney General Robert Abrams on several occasions, including high-profile cases involving gay rights, conceded the unconstitutionality of state laws. Something more is going on.

Even in liberal New York, politicians are afraid to push same-sex marriage too hard. A lot of voters fear that gay marriage would be a risky social experiment, with possibly harsh consequences for the imperiled institution of marriage itself. Additionally, they're afraid of asking unelected judges to initiate such an experiment.

The first fear is a lavender herring. Same-sex marriage is nothing to be afraid of. Denmark has recognized lesbian and gay partnerships ("marriages" in all but name) since 1989. Although some conservatives claim that same-sex marriage has spelled the "end of marriage" in Denmark, nothing could be further from the truth.

Danish marriage was in deep decline long before 1989: the marriage rate was falling, and the divorce and non-marital childbirth rates soared. If gay marriage really harms the institution of marriage, one would expect these trends to accelerate after 1989. Yet the opposite occurred in Denmark: after legal recognition of same-sex unions, the marriage rate increased, the divorce rate fell, and the rate of childbirths outside of marriage declined for the first time in half a century. Similar trends occurred in the other Scandinavian countries that recognized same-sex partnerships.

We don't know whether same-sex marriage caused or just contributed to this dramatic reversal, but we are certain that it didn't hurt. More important, allowing same-sex couples to marry has had a number of positive benefits for society. As we discovered in Scandinavia, gay marriage keeps relationships stronger, strengthens families, protects children, promotes tolerance, and can even lead to benefits on a national scale.

On the other hand, Scandinavian registered partnerships were the result of legislative action, not judicial invalidation. Does the Nordic parallel suggest that the New York Court of Appeals should uphold the status quo and leave its reform to the Legislature?

Not necessarily. The New York Legislature is notoriously gridlocked because of different party control of its two chambers in contrast to the single-chamber Danish Parliament. So dismissing the current complaints, so that the Legislature can deliberate, is like throwing Daniel back into the den so that the lions can deliberate about his fate. Reaffirming hundreds of legal discriminations against same-sex couples, the Court would be turning its back on the equal protection guarantee of the state Constitution, without giving the Legislature sufficient motivation to engage in thoughtful reform.

There is another way: the Court can reverse the burden of inertia. In 1999, the Vermont Supreme Court struck down its marriage discrimination and left the remedy to the Legislature, which responded with the nation's first civil unions law. In 2003, the Massachusetts Supreme Court required state recognition of same-sex marriages but gave the Legislature six months to respond. The Legislature initiated a process to add civil unions (but not same-sex marriage) to its state Constitution, but the process fizzled. The Court's decree has gone into effect, with no discernible harm to marriage or society.

New York's Court of Appeals can follow either path, or it may do something different. For example, our Court could, like Vermont's Court, invalidate the marriage discrimination without announcing a remedy and further stipulate, as Massachusetts's Court did, that the Legislature would have a deadline for responding. We would suggest one or two years. This would allow ample time for the Legislature to engage in a public debate about the issue and, perhaps, break its gridlock.

By the end of such a process, we have learned from Scandinavia, Vermont, and Massachusetts, many fewer citizens and their leaders would be afraid of gay marriage.