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New York's Highest Court Punts Gay-marriage Dispute to Legislators

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    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
    Message 1 of 1 , Jul 7, 2006
      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
      unmarried couples.

      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.

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