We sometimes look to New York to lead the way on civil rights and compassionate public policy. At least that's what State officials would like us to believe. We New Yorkers pat ourselves on the back for our progressive way of thinking. But that's nonsense. New York may not be the deep south in the 1950's and 1960's, but when push comes to shove, the disenfranchised wind up in the gutter.

New York has been a flashpoint in the controversy over same-sex marriages ever since the Green Party mayor of my village (New Paltz) decided to officiate these unions in March 2004. He was prosecuted for marrying people without marriage licenses, but the charges were later dropped. Others brought lawsuits to challenge the constitutionality of New York's prohibition against same-sex marriages, and yesterday the State's highest court rejected those claims and held that it's legal for the State to deny gays and lesbians the right to marry and avail themselves of the many benefits associated with marriage, like tax advantages, insurance coverage and the right of marriage partners to make decisions about their spouses' medical treatment.

Here's the general framework for courts to apply in deciding whether to strike down marriage restrictions. Under the Constitution, there are certain "fundamental" rights, like the right to travel, the right to privacy, the right to raise your children as you see fit and the right to marry. The language we usually see in these court rulings is that a fundamental right is something that is "deeply rooted in our tradition." In 1967, the Supreme Court held that it was illegal for the State of Virginia to prohibit interrracial marriage. A few years later, the Court said flat out that "the right to marry is of fundamental importance for all individuals." For this reason, even inmates can get married. Even serial killers can get married while in prison.

If a right is "fundamental" under the Constitution, it cannot be abridged or restricted without a "compelling" reason. In street language, the government needs a damned good reason to restrict a fundamental right. Hatred of an entire class of people is not good enough. "We always did it this way" is not good enough. "Just because" is not good enough. Prejudice is not good enough. Public opinion is not good enough. The rationale for this is that some rights are so fundamental that it does not matter what the majority thinks. Constitutional rights cannot be put up for a majority vote.

When the same-sex marriage controversy wound up in the courts, we thought that an honest court would recognize that same-sex couples have a constitutional right to get married. After all, what compelling reason could justify the exclusion? The best parallel was the Supreme Court's ruling in 1967, Loving v. Virginia, which said that the government cannot restrict interracial marriages despite any arguments that it was always government policy to enforce these restrictions.

In the ruling handed down by the New York Court of Appeals, however, the above analysis was rejected through a legal contortion. The Court did not require the State to advance a compelling reason for the prohibition against same-sex marriages. It reasoned that while marriage among opposite-sex couples is deeply rooted in our tradition, same-sex marriage is a recent innovation. So, the Court of Appeals reasoned, same-sex marriage is unlike heterosexual blacks marrying whites. The problem with this reasoning is obvious: for centuries, the notion that heterosexual whites might marry heterosexual blacks was as repugnant to people as the notion that gays and lesbians can marry. The Court simply jumped through hoops to distinguish same-sex marriages from interracial marriages.

By ruling that same-sex couples have no fundamental right to marry, the Court of Appeals only required the State to justify its prohibition by advancing a "rational basis." This makes it much easier for the government to get away with its policy, but "rational" means "rational," right? It's not rational to deny two single adults the right to marry, same-sex or not, right?

Here is how the Court of Appeals found it rational for New York to prohibit same-sex adults from marrying:

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.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

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.

In other words, reckless sex between heterosexual couples can produce children. The State wants to prevent children from growing up without a mom and pop, so we induce the lovers to get married to save the children. The State can deny the same marriage right to gays and lesbians because although they can adopt children, they cannot naturally reproduce. The State Legislature can thus distinguish between same-sex marriage and heterosexual marriage. And, the Court ruled, the Legislature can rationally decide that children are better off with a mother and father rather than a father and father.

This is what counts for legal reasoning in New York. Lost in this equation is the irrational basis for regulating marriage in an "either-or" fashion. As Judge Judith Kaye wrote in her dissenting opinion, there are enough marriage licenses to go around. Why deny same-sex couples the right to marry just because heterosexual couples after a one-night stand might forego marriage and produce a child without a loving father?

Moreover, the justifications advanced by the Court of Appeals in speculating why the Legislature wants to prohibit same-sex marriage are academic. Do you really think that State legislators even give the issue extended thought? I doubt it. My sense is that they make it illegal for same-sex marriage because they are repulsed by homosexuality and cannot imagine lifestyles other their own. Or their religious biases force them to follow the Bible and punish homosexuals for who they are.

Let's cut through the crap here: same-sex marriage is illegal not because we want to help the children but because society as a whole does not like gays and lesbians and the prejudices that motivated many states years ago to prohibit interracial marriage are plainly at work in the same-sex context. We allow our prejudices to deny other people their rights and then we jump through intellectual hoops to justify those prejudices. It's a sad day that New York is a party to this horror. Yesterday's decision is a disgrace and an embarrassment and New Yorkers deserve better. More importantly, gays and lesbians deserve better.