New York's Highest Court Punts Gay-marriage Dispute to Legislators
- New York's highest court punts gay-marriage dispute to legislators
By Robert Marus
Associated Baptist Press
July 6, 2006
ALBANY, N.Y. (ABP) -- New York's highest court has ruled that the
state's constitution neither requires nor bans the legalization of
same-sex marriage, saying the question is one for the state's
legislators to decide.
The July 6 ruling dealt a blow to gay-rights activists but was not as
broad as many gay-marriage opponents had preferred.
In the 4-2 decision, the state's highest court -- the New York Court
of Appeals -- said, "the New York constitution does not compel
recognition of marriages between members of the same sex. Whether such
marriages should be recognized is a question to be addressed by the
The New York decision is one of several by state high courts in recent
years denying a constitutional right to same-sex marriage.
Massachusetts became the only state to legalize same-sex marriage
after its highest court ruled in 2003 that banning it violated the
Massachusetts Constitution. Vermont and Connecticut offer gay couples
civil unions, with benefits and responsibilities nearly identical to
marriage. California, New Jersey and the District of Columbia have
"domestic partnership" laws that offer marriage-like advantages to
The latest ruling came in four separate cases that were combined. In
those, 44 New York same-sex couples who wished to marry sued municipal
clerks who denied them marriage licenses in various parts of the
state, saying the state's Domestic Relations Law, which deals with
marriage in heterosexual-specific terms, violates the New York
Constitution's equal-protection and due-process guarantees.
All of the lower courts involved had ruled against the plaintiffs,
save for one trial court in New York City. Attorneys for the state and
the municipalities involved defended the marriage law.
The author of the court's controlling three-person plurality opinion,
Judge Robert Smith, said the state's Domestic Relations Law does not
violate the rights of same-sex couples because the law had a rational
basis beyond sheer anti-gay prejudice.
"The question is not, we emphasize, whether the legislature must or
should continue to limit marriage in this way; of course, the
legislature may . . . extend marriage or some or all of its benefits
to same-sex couples," Smith wrote. "We conclude, however, that there
are at least two grounds that rationally support the limitation on
marriage that the legislature has enacted both of which are derived
from the undisputed assumption that marriage is important to the
welfare of children."
First, Smith said, legislators may choose to provide heterosexuals
with incentives to marry -- such as tax advantages and inheritance and
health-care rights -- because heterosexual couplings are the only ones
naturally inclined to produce children. Gay 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."
For that and other reasons, Smith contended, "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."
Second, Smith wrote, "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."
He also rejected the plaintiffs' argument that the state's denial of
marriage to same-sex couples is analogous to a Virginia law banning
interracial marriage that the federal Supreme Court overturned in 1967
in the case of Loving v. Virginia.
" [T]he historical background of Loving is different from the history
underlying this case," Smith said. "Racism has been recognized for
centuries -- at first by a few people, and later by many more -- as a
revolting moral evil."
But heterosexual-only marriage is not an analogous situation, Smith
said: "Until a few decades ago, it was an accepted truth for almost
everyone who ever lived, in any society in which marriage existed,
that there could be marriages only between participants of different
sex. A court should not lightly conclude that everyone who held this
belief was irrational, ignorant or bigoted. We do not so conclude."
Smith questioned whether the freedom to marry someone of one's own
gender is a "fundamental right." "The right to marry is unquestionably
a fundamental right. The right to marry someone of the same sex,
however, is not 'deeply rooted'; it has not even been asserted until
relatively recent times."
Finally, Smith said, the decision should be a legislative one. "The
dissenters assert confidently that 'future generations' will agree
with their view of this case. . . . We do not predict what people will
think generations from now, but we believe the present generation
should have a chance to decide the issue through its elected
But Chief Judge Judith Kaye, in a lengthy dissenting opinion
challenging virtually all of Smith's arguments, said the court should
not shirk its constitutional duty.
"If the legislature were to amend the statutory scheme by making it
gender neutral, obviously the instant controversy would disappear. But
this court cannot avoid its obligation to remedy constitutional
violations in the hope that the legislature might some day render the
question presented academic," she said. "It is uniquely the function
of the judicial branch to safeguard individual liberties guaranteed by
the New York State Constitution, and to order redress for their
Kaye said Smith and the plurality employed circular logic in saying
that the freedom to marry a partner of one's own gender was not an
inherent right. "The court concludes . . . that same-sex marriage is
not deeply rooted in tradition, and thus cannot implicate any
fundamental liberty. But fundamental rights, once recognized, cannot
be denied to particular groups on the ground that these groups have
historically been denied those rights," she wrote. "Simply put,
fundamental rights are fundamental rights. They are not defined in
terms of who is entitled to exercise them."
She also said that the logic of encouraging child welfare by limiting
marriage to heterosexual couples isn't consistent with the state's
other laws or cultural reality.
"[W]hile encouraging opposite-sex couples to marry before they have
children is certainly a legitimate interest of the state, the
exclusion of gay men and lesbians from marriage in no way furthers
this interest. There are enough marriage licenses to go around for
everyone," she wrote.
Excluding same-sex couples from marriage in no way furthers the
welfare of children but in fact it undermines it, she continued. "Tens
of thousands of children are currently being raised by same-sex
couples in New York. Depriving these children of the benefits and
protections available to the children of opposite-sex couples is
antithetical to their welfare."
The issue is now in the hands of the state's political leaders, whom
gay-rights supporters called on July 6 to pass a same-sex marriage
bill. A recent poll showed that a slight majority of New Yorkers favor
legalizing same-sex marriage. Bills to do so, however, have not made
it out of committee during recent legislative sessions.