New York Rejects Same Sex Marriage

By Keith Boykin, in sexuality
Wednesday, July 5 2006, 10:42 AM

In a disappointing decision, the New York State Court of Appeals today ruled 4-2 that the state ban on allowing same sex couples to marry does not violate the state constitution. The decision, which was widely expected to be announced this week, was a setback to those who hoped that New York would become the second state in the nation to permit gay and lesbian couples full marriage rights. Massachusetts struck down marriage discrimination laws in its state in November 2003.

Judge Albert Rosenblatt recused himself in this case because his daughter wrote an amicus brief for the Lambda Legal Defense Fund case for marriage equality in New Jersey. Judges Judith Kaye, 67, and Carmen Beauchamp Ciparick, 63 were the only dissenters to the opinion. Both, along with Judge George Bundy Smith, 68, were appointed by former New York Governor Mario Cuomo.

Judge George Bundy Smith, the only African American judge on the court, signed onto an opinion that rejected comparisons between same-sex marriage bans and interracial marriage bans.

The Court held:

"We hold, in sum, that the Domestic Relations Law's limitation of marriage to opposite-sex couples is not unconstitutional. We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong. We have presented some (though not all) of the arguments against same-sex marriage because our duty to defer to the Legislature requires us to do so. We do not imply that there are no persuasive arguments on the other side -- and we know, of course, that there are very powerful emotions on both sides of the question.

The dissenters assert confidently that 'future generations' will agree with their view of this case (dissenting
op at 28). 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. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made."

Judge Kaye responded in her dissent:

"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.''

The case combined four different lawsuits representing 44 gay and lesbian couples around New York State, according to the New York Times. The highest profile case, Hernandez v. Robles, involves five couples who sued New York City's clerk, who issues marriage licenses. It was the only case that had won a victory in the lower courts, the Times reported.

Polls show an increase in the past three years of New Yorkers who support marriage equality, according to the Times. A majority of state residents support legalizing same sex marriage while the percentage of those opposing it has decreased sharply to just over a third.

In response to the decision, the Empire State Pride Agenda has scheduled a rally in New York's Sheridan Square at 6 p.m. today.

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