By Bob Roehr
The New York State Court of Appeals ruled 4-2 against gay marriage, saying that 'the New York Constitution does not compel recognition of marriages between members of the same sex.'
The court punted the issue to the legislature. 'Whether such marriages should be recognized is a question to be addressed by the Legislature,' wrote Judge Robert Smith in the July 6 decision on Hernandez v. Robles.
It noted the many benefits that accrue with marriage and said, 'The crucial question is whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples.' This reliance upon a hypothetical situation is highly unusual in legal proceedings.
The decision placed a heavy emphasis on procreation and the belief that 'a home with two parents of different sexes' has an advantage over other arrangements. It rejected studies and testimony by leading child welfare organizations because 'the studies on their face do not establish beyond doubt that children fair equally well in same-sex and opposite-sex households.'
The judges also differentiated between state intrusion into private activities—and use of the Lawrence case where the U.S. Supreme Court struck down state sodomy laws—and benefits conferred by the state, as through marriage. The latter requires less of a rational basis.
Chief Judge Judith Kaye disagreed. In a dissenting opinion, she said deprivation of a fundamental right, such as marriage, demands the higher standard of strict scrutiny. 'Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.'
In classifying same-sex marriage as 'new,' 'the court misapprehends the nature of the liberty interest at stake ... . Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.'
Judge Kaye lambasted the majority opinion that marriage has always had a single unalterable meaning as 'a plain distortion of history' that ignored the evidence presented by plaintiffs. 'Only since the mid-twentieth century has the institution of marriage come to be understood as a relationship between two equal partners.'
She acknowledged the legitimate interest of the state in encouraging marriage for the sake of the children that may result, but 'the exclusion of gay men and lesbian from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.'
'It's a sad day. Our children don't understand why their parents can't get married, 'said Lauren Abrams, one of the plaintiffs in the case.
'Today's decision refuses to recognize that gay and lesbian New Yorkers and their families are full citizens of this state,' said Susan Sommer, the attorney for Lambda Legal who argued the appeal.
'It's a mess of a decision that in the end makes a very weak argument: That you can justify barring same-sex couples from marrying because of the unstable relationships of heterosexual couples,' said David Buckel, director of Lambda's Marriage Project.
Sommer called upon New York City Mayor Republican Michael Bloomberg and New York State Attorney General Eliot Spitzer, the leading Democratic candidate for governor, 'to fulfill their promises to work with state legislators to allow gay and lesbian couples to marry.'
'The court's archaic reasoning is rooted in ignorance and completely contradicted by the facts of today,' said Joe Solmonese, president of the Human Rights Campaign. 'The court threw the expert advice of child welfare professionals and years of scientific evidence out the window in its ruling against fairness.'
National Gay and Lesbian Task Force executive director Matt Foreman called the decision 'tortured and intellectually strained. [ It is ] beyond disappointing, it is insulting to gay and lesbian people and our families. It is an egregious departure from the New York Court of Appeals' long and proud tradition of advancing liberty and dismantling discrimination.'
Alexander Robinson, executive director of the National Black Justice Coalition, said, 'This is a huge step backwards and a harsh slap in the face not just for marriage equality but for the equality of all people living in the state of New York.'
Gay pundit and longtime marriage advocate Andrew Sullivan offered an analysis of the 'rationale' embodied in the ruling. 'The argument, essentially, is that because straight couples are so irresponsible, can have children by accident, and have made such a hash of civil marriage, they need more incentives than gay couples to stay together—and civil marriage as an exclusive privilege for them is such an incentive.'
'The interests of gay couples in staying together—the gains in responsibility, health, stability and the security of their own children—are dispensable. Gays are still regarded as sub-citizens,' Sullivan wrote on his blog.
The New York State Bar Association renewed its call for the legislature to enact either civil union, domestic partnership, or marriage legislation to protect same sex family relationships.
National Stonewall Democrats said legislators should pass a pending measure granting marriage equality to same-sex couples that was introduced by openly gay state senator Tom Duane and endorsed by the state party in 2003.
The evening the decision came down, thousands of New Yorkers gathered at six rallies across the state that had been planned ahead of time. Alan Van Capelle, executive director of the leading LGBT political organization the Empire State Pride Agenda, told the crowd gathered at Sheridan Square in Manhattan, 'It is time to tell [ politicians ] , if you don't stand with us in 2007, we're not going to stand with you in 2008.'