New York’s highest court punts gay-marriage dispute to legislators

Posted: 7/07/06

New York's highest court punts
gay-marriage dispute to legislators

By Robert Marus

Associated Baptist Press

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 state’s 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 legislature,” the court ruled.

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,” he said.

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,” he said.

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 representatives.”

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 violation.”

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.”

The logic of encouraging child welfare by limiting marriage to heterosexual couples isn’t consistent with the state’s other laws or cultural reality, she said.

“While 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.