July 6, 2006
N.Y. Court Upholds Gay Marriage Ban
By ANEMONA HARTOCOLLIS 
New York's highest court today turned back a broad attempt by gay and lesbian couples across the state to win the right to marry and raise children under New York State's marriage law, saying that denying marriage to same-sex couples does not violate the state constitution.
In a 4-2 decision, the Court of Appeals found that the state's definition of marriage as a union between a man and a woman, enacted more than a century ago, could have a rational basis, and that it was up to the State Legislature, not the courts, to decide whether it should be changed.
The majority decision, written by Judge Robert S. Smith, who was appointed by Gov. George Pataki, found that limiting marriage to opposite-sex couples could be based on rational social goals, primarily the protection and welfare of children.
"Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals," Judge Smith wrote in his 22-page opinion. For example, he wrote, it could be argued that children benefit from being raised by two natural parents, a mother and a father, rather than by gay or lesbian couples.
Chief Judge Judith Kaye wrote a dissenting opinion and was joined by Judge Carmen Beauchamp Ciparick, both appointed by Gov. Mario Cuomo, a Democrat. Judge Kaye warned that future generations would look back at yesterday's decision as "an unfortunate misstep," and would consider the barring of gay marriage as an injustice akin to the laws that once barred interracial marriage, an analogy the majority on the court rejected.
Gay and lesbian groups viewed the decision as a major setback, even though the court's ruling was not altogether unexpected.
"Today is a sad day for all New Yorkers who believe in the constitutional guarantee of equal protection under law," said Roberta A. Kaplan, a lawyer for the plaintiffs in Samuels v. Department of Health, one of four cases consolidated in the same ruling. "Chief Judge Kaye's dissent got it exactly right in saying that future generations will come to see today's decision as a terrible mistake."
Advocates for recognizing same-sex marriage acknowledged that getting any major change in the law through New York's divided legislature would be a difficult challenge.
New York lawmakers have not appeared in any rush to act on the issue, although the leading Democratic candidate for governor, Attorney General Eliot Spitzer, has promised gay rights groups that he will seek to legalize gay marriage if he is elected in November. Mr. Spitzer's Democratic rival in the race, Thomas R. Suozzi, and the Republican nominee, John Faso, oppose legalizing gay marriage.
Today's court decision comes at a critical juncture, when the country seems deeply divided, both politically and legally, on the issue of gay marriage.
So far the highest court in Massachusetts is the only appellate court in the country to have ruled that recognition of same-sex marriage is required by the state's constitution.
By contrast, the Georgia Supreme Court rejected a constitutional challenge to that state's laws against same-sex marriage today, overruling a lower court, just as the New York court did.
In an earlier ruling, Vermont's high court came down in between, finding that the benefits of marriage should be provided to same-sex couples but deferring to the legislature on the means. Vermont and Connecticut have enacted laws recognizing civil unions between gay couples, rather than marriages.
Cases like New York's are pending in the courts of New Jersey and the state of Washington.
Many states and the federal government have enacted "defense of marriage" laws, restricting the rights and benefits of same-sex couples. Yet President Bush's push for a constitutional ban on same-sex marriage was rejected by the Senate in June.
In an unusual split for the New York Court of Appeals, two separate opinions were issued supporting the decision. The one written by Judge Smith was signed by two other judges — George Bundy Smith, a Cuomo appointee and the only black member of the panel, and Susan Phillips Read, a Pataki appointee.
The second opinion, written by Judge Victoria A. Graffeo, a Pataki appointee, upheld the majority, saying their decision was rational. But she seemed to be distancing herself from the sociological arguments that the purpose of the marriage law was to promote families with children.
"Marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing," Judge Graffeo wrote in a 22-page concurrence.
The judge exhorted the Legislature to take up the issue: "It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate."
In the majority opinion, Judge Smith said that because same-sex marriage was not deeply rooted in history and tradition, barring it was not a violation of fundamental rights and liberties.
The majority decision argued that any comparison with anti-miscegenation laws was flawed because discrimination against homosexuals has been recognized only recently, while "racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil."
On the issue of child-rearing, the majority wrote: "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. 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."
Judge Kaye, however, argued that the historic and cultural understanding of marriage did not justify discrimination.
"Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional," Judge Kaye wrote in her 27-page dissent. "As history has well taught us, separate is inherently unequal."
"The claim that marriage has always had a single and unalterable meaning is a plain distortion of history," she wrote. Until well into the 19th century, for instance, she said, wives were considered the property of their husbands and married women could not own property or enter into contracts.
"Only since the mid-twentieth century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support."
She said that while encouraging opposite-sex couples to marry could be good for the welfare of children, denying marriage to same-sex couples did not serve that interest in any way.
"The state's interest in a stable society is rationally advanced when families are established and remain intact, irrespective of the gender of the spouses," Judge Kaye wrote.
"The ability or desire to procreate is not a prerequisite for marriage," she said. "The elderly are permitted to marry, and many same-sex couples do indeed have children."
She noted that the United States Supreme Court has held that even prison inmates have a fundamental right to marry, despite the limits of prison life that may make it impossible to conceive children.
And she said there were other legitimate ways to encourage people to raise children, such as subsidizing child care or requiring employers to provide family leave for parents.
"Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage — purportedly to encourage other people to procreate," she wrote.
Judge Kaye's dissent was a departure from the dry legal language of the main decision. She noted that the plaintiffs in the cases before the court represented a cross-section of ordinary New Yorkers, including a police officer, a doctor, a teacher and an artist, who wanted "only to live full lives, raise their children, better their communities and be good neighbors."
Most people, she noted, look forward to a wedding "as among the most significant events of their lives," and she said it was wrong for gays and lesbians to be denied marriage "because of who they love."
The court's ruling combined four different lawsuits filed by 44 gay and lesbian couples throughout the state, who argued that they had a constitutionally protected right to marry the way heterosexual couples do, and that current law denies them due process and equal protection of the law, violating the state constitution.
Only one of the four cases, Hernandez v. Robles, won a victory in the lower courts, in February 2005. New York City Mayor Michael Bloomberg, who was facing a primary campaign for re-election at the time, appealed the decision.
Mayor Bloomberg insisted that he supported allowing same-sex couples to marry, and that he appealed the case only to clarify the parameters of the law and the constitution. However, the court's decision closely tracked the arguments raised by the city's corporation counsel.
The other cases before the Court of Appeals, which were consolidated under the same ruling, are Samuels v. New York State Department of Health and Kane v. Marsolais, both brought in Albany County, and Seymour v. Holcomb, in Tompkins County.
[As the story originally appeared in The New York Times ]
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