Hernandez v.s. Robles

If you want an example of legislating on the bench, here is one. Even the Legislature has allowed gay couples to adopt children, the Court said

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.

And the Court also suggest the State has a legitimate interests in those accidentally born children, which I have never heard of.

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 oppositesex relationships will help children more.

Even if that were true, this arguement still doesn't exclude gay couples with kids from marriage. The Court just simply ignored that in New York, gay couples CAN adopt children, which really makes those "rational basis" absurd. More of my opinion.