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N.Y. can exclude gays from marrying to protect children, high court rules
Chief judge slams court for leaving gay marriage to Legislature
By CHRIS CRAIN, Southern Voice
http://www.sovo.com/thelatest/thelatest.cfm?blog_id=7924
The Court of Appeals, in a 4-2 decision, Thursday morning rejected arguments from gay and lesbian couples that their inability to get marriage licences in New York violated their constitutional right to equal protection.
The decision stated the court was not persuaded that the "long- accepted restriction [against same-sex marriage] is a wholly irrational one, based solely on ignorance and prejudice against homosexuals."
Writing for a plurality of three justices, Judge Robert Smith said New York's marriage law is constitutional and clearly limits marriage to between a man and a woman. Any change in the law should come from the state Legislature, he said.
"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 representatives," Smith wrote.
Smith was joined by Judges George Bundy Smith and Susan P. Read. A fourth judge, Victoria A. Graffeo, agreed with the outcome and wrote a separate opinion.
Plurality: 'Welfare of children'
The three justices in the plurality concluded there were two "rational bases" for the Legislature to decide to limit marriage to opposite-sex couples, both involving "the welfare of children."
Toward that goal, the three justices concluded, the Legislature could rationally decide "it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships." The justices acknowledged that many straight couples have children and many gay couples do, but nonetheless it is a fact of biology that only sex within opposite-sex coupling leads to pregnancy.
"The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into and grow up in unstable homes than is the case with same-sex couples," the three justices concluded, "and thus that promoting stability in opposite-sex relationships will help children more."
The other rational justification for limiting to marriage to opposite-sex couples, the plurality ruled, was the belief that "it is better, other things being equal, for children to grow up with both a mother and a father." The justices acknowledged the scientific evidence that has concluded children raised by same-sex couples are no worse off for it, but pronounced the data preliminary.
"In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father at home," the plurality wrote.
Dissent: 'An unfortunate misstep'
In a 28-page dissent, Chief Judge Judith Kaye argued that the court had erred.
"I am confident that future generations will look back on today's decision as an unfortunate misstep," wrote Kaye. "This court cannot avoid its obligations to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic" by passing legislation that makes marriage gender-neutral.
Joined in dissent by Judge Carmen B. Ciparick, Judge Kaye chastised the other justices for concluding the "fundamental right" at stake in the case was the "right to marry someone of the same sex" and not "the right to marry the person of one's choice."
Kaye argued that the U.S. Supreme Court's landmark gay rights decision in Lawrence vs. Texas had warned against framing the issue too narrowly. In Lawrence, the court overturned sodomy laws in a dozen states, concluding the right at stake was "the right to engage in private consensual sexual conduct," not, as the court had ruled in 17 years earlier in Bowers vs. Hardwick, "the right of homosexuals to engage in sodomy."
Activists: fight moves to Legislature
Gay advocates vowed to continue the fight for gay marriage.
"We're very disappointed that the court was unable to vindicate the constitutional rights for the many thousands of gay and lesbian couples throughout New York state,' said Roberta A. Kaplan, an attorney who represented same-sex couples denied marriage licenses, Bloomberg News reported. "We will take this battle to the legislature."
In something of a surprise, Democratic Party chair Howard Dean issued a statement hours after the ruling was announced that vowed to fight the issue in the state's Legislature.
"Today's decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal," Dean said. "It is up to the state legislature to act to protect the equal rights of every New Yorker."
Dean was governor of Vermont when that state's highest court ruled in 1999 that gay couples had a constitutional right to marry. Dean opposed efforts then to open marriage up to gay couples, however, and instead signed into effect the nation's first civil unions law. Since that time, he has opposed marriage for gay couples, arguing that civil unions are the exact equivalent, a point vigorously disputed by gay activists.
The judges on New York's highest court declined to follow Vermont's lead, or that of high court judges in neighboring Massachusetts, who ruled that same-sex couples in that state have the same right to wed as straight couples. Instead, the court cited decisions by intermediate appellate courts in Pennsylvania, Indiana and Arizona as supporting its conclusions.
The four cases decided Thursday were filed two years ago when the Massachusetts decision helped usher in a spate of gay marriage controversies from Boston to San Francisco. In New York, the mayor of the Hudson Valley village of New Paltz married about two dozen gay couples in February 2004.
With little hope of getting a gay marriage bill signed into law in Albany, advocates from the ACLU, Lambda Legal and other advocacy groups marshaled forces for a court fight. Forty-four couples acted as plaintiffs in the suits, including the brother of comedian Rosie O'Donnell and his longtime partner.
"It's a sad day for New York families," said plaintiff Kathy Burke of Schenectady. "My family deserves the same protections as my next door neighbors."
Burke and her partner of seven years, Tonja Alvis, are raising her 11-year-old son.
© 2006 | A Window Media Publication
(\\__/) And if you don't believe The sun will rise
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