The New York Times - July 7, 2006
NEW YORK JUDGES REJECT ANY RIGHT TO
GAY MARRIAGE
By ANEMONA HARTOCOLLIS (Diane Cardwell, Sarah Garland and Danny Hakim
contributed reporting for this article).
New York's highest court rejected yesterday a broad attempt by gay and lesbian couples
across the state to win the right to marry under state law, saying that denying marriage to
same-sex couples does not violate the State Constitution. By a 4-2 majority, the Court of
Appeals found that the State Legislature, in laws dating back nearly 100 years, intended
to limit marriage to a union between a man and a woman, and that the Legislature had a
rational basis for doing so. The court said it would be up to lawmakers to decide whether
same-sex marriage should be permitted, and the ruling had politicians and others
mobilizing immediately for a fight in Albany. [Page B1.]
The majority decision, written by Judge Robert S. Smith, found that limiting marriage to
couples of the opposite sexes was based on legitimate societal goals, primarily the
protection and welfare of children. It could well be argued, he said, that children are
better off raised by a biological mother and father, rather than by a gay or lesbian couple.
"Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational
one, based solely on ignorance and prejudice against homosexuals," Judge Smith wrote in
his 17-page opinion.
The court's chief judge, Judith S. Kaye, issued a sharp dissent, warning that future
generations would look back at yesterday's decision as "an unfortunate misstep." She said
that barring gay marriage was tantamount to barring interracial marriage, as laws
formerly did. "The long duration of a constitutional wrong cannot justify its perpetuation,
no matter how strongly tradition or public sentiment might support it," Judge Kaye wrote
in a 27-page opinion, in which she was joined by Judge Carmen Beauchamp Ciparick.
Gay and lesbian groups viewed the decision as a setback, though it was not unexpected.
"Today is a sad day for all New Yorkers who believe in the constitutional guarantee of
equal protection under law," said Roberta A. Kaplan, lead counsel with the American
Civil Liberties Union and the New York Civil Liberties Union for the plaintiffs in one of
four cases consolidated in the same ruling.
The ruling was hailed by many others, including Gov. George E. Pataki, who said the
decision was the "right one," because marriage between a man and a woman had been the
law of the state "for more than 200 years." Mr. Pataki, who is in the final year of his third
and last term, said that he would not sign a bill legalizing gay marriage if one were sent
to him by the Legislature.
The Family Research Council, a conservative Christian lobbying group that had filed a
"friend of the court" brief opposing gay marriage, issued a statement praising the judges
in the majority for not "substituting their own social policy preferences" for those of "the
people."
Alan Van Capelle, executive director of Empire State Pride Agenda, said, "Deep down
we've been preparing for a defeat." Mr. Van Capelle, whose organization is a lobbying
group that focuses on gay rights, said it had taken 31 years for the state to pass a law
prohibiting discrimination on the basis of sexual orientation, and added, "I promise the
couples that it won't take 31 years."
The decision comes at a time when the country is deeply divided over the issue of gay
marriage. So far, the highest court in Massachusetts is the only appellate court in the
country to have ruled that same-sex marriage is permitted by a state constitution. Cases
involving gay marriage are pending in the high courts of New Jersey and Washington
State. The Georgia Supreme Court reinstated a ban on same-sex marriage yesterday,
hours after the New York ruling. Vermont's high court found that the benefits of marriage
should be provided to same-sex couples, but deferred to the Legislature, which enacted a
law providing for same-sex civil unions, rather than marriage. Connecticut, too, permits
civil unions of same-sex couples.
The plaintiffs in New York, 44 couples across the state in four lawsuits, argued that under
the State Constitution, gay and lesbian couples have a right to equal treatment under the
state's marriage laws. The current of the version of the Domestic Relations Law dates to
1909 and uses terms like "bride" and "groom." The plaintiffs argued that anything less
than marriage - civil union, for instance - might provide some of the same legally
mandated benefits, but would relegate gay and lesbian couples to second-class
citizenship. "Each New Yorker is free to choose wisely or poorly without regard to
whether the marriage has the stamp of public approval, unless he or she would marry a
partner of the same sex," Susan L. Sommer of Lambda Legal, and Jeffrey S. Trachtman,
both lawyers representing the plaintiffs in Hernandez v. Robles, said in one brief
submitted to the court.
In February 2005, Hernandez v. Robles, which was filed against the city clerk of New
York, who issues marriage licenses, became the only one of the four cases to win in a
lower court, and it was appealed by Mayor Michael R. Bloomberg, who at the time was
facing a primary campaign for re-election. Yesterday's decision closely tracked the
arguments raised by his corporation counsel and by lawyers for Eliot Spitzer, the attorney
general. Mayor Bloomberg, appearing with Governor Pataki at an unrelated event
yesterday, declined to discuss the substance of the court's ruling, but said, as he has in the
past, that he would "personally campaign to change the law."
In an unusual split for the Court of Appeals, two separate opinions were issued
supporting the decision. The one written by Judge Robert Smith, a Pataki appointee, was
signed by two other judges, Susan Phillips Read, another Pataki appointee, and George
Bundy Smith, who was appointed by Mario M. Cuomo, a Democratic governor, and who
is seeking reappointment in September. The second majority opinion, written by Judge
Victoria A. Graffeo, a Pataki appointee, upheld the Smith opinion but seemed to distance
itself from its sociological arguments that the purpose of the marriage law was to promote
families with children. "Marriage can and does serve individual interests that extend well
beyond creating an environment conducive to procreation and child-rearing," Judge
Graffeo said, in a 22-page concurrence. She exhorted the Legislature to take up the issue,
saying, "It may well be that the time has come for the Legislature to address the needs of
same-sex couples and their families, and to consider granting these individuals additional
benefits through marriage or whatever status the Legislature deems appropriate."
The court's seventh judge, Albert M. Rosenblatt, recused himself. He has a daughter,
Elizabeth L. Rosenblatt, who has participated as a lawyer in similar cases in other states.
In the majority opinion, Judge Smith said that because same-sex marriage was not deeply
rooted in history and tradition, barring it did not violate fundamental rights and liberties.
The majority decision argued that any comparison with anti-miscegenation laws overturned by the United States Supreme Court in 1967 - was flawed. "Racism has been
recognized for centuries - at first by a few people, and later by many more - as a revolting
moral evil," the opinion said. In contrast, the opinion said, "The idea that same-sex
marriage is even possible is a relatively new one."
On the issue of child-rearing, the majority wrote that despite scientific advances, most
children are still born to heterosexual couples, so the state has a legitimate interest in
promoting their marriages over others. "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," the judges said.
Judge Kaye, however, argued in her dissent that the historical and cultural understanding
of marriage did not justify discrimination. "Simply put, a history or tradition of
discrimination - no matter how entrenched - does not make the discrimination
constitutional," the chief judge said. "As history has well taught us, separate is inherently
unequal." Judge Kaye, who has served on the court for 13 years, said that the
understanding of marriage had evolved. Until well into the 19th century, for instance,
wives were considered the property of their husbands and married women could not own
property or enter into contracts, she noted. "Only since the mid-20th century has the
institution of marriage come to be understood as a relationship between two equal
partners, founded upon shared intimacy and mutual financial and emotional support," she
wrote.
She said that while encouraging opposite-sex couples to marry could be good for the
welfare of children, denying marriage to same-sex couples did not further that desire in
any way. "The state's interest in a stable society is rationally advanced when families are
established and remain intact irrespective of the gender of the spouses," Judge Kaye
wrote. Bearing children, she said, is not a prerequisite of marriage, since the elderly and
even prison inmates are permitted to marry, and many same-sex couples do have
children. "Marriage is about much more than producing children, yet same-sex couples
are excluded from the entire spectrum of protections that come with civil marriage purportedly to encourage other people to procreate," she wrote.
Judge Kaye's dissent was a departure from the dry legal language of the main decision.
She noted that the plaintiffs represented a cross-section of ordinary New Yorkers,
including a police officer, a doctor, a teacher and an artist, who wanted "only to live full
lives, raise their children, better their communities and be good neighbors." Most people,
she wrote, look forward to a wedding "as among the most significant events of their
lives," and she said it was wrong for gays and lesbians to be denied marriage "because of
who they love."
© The New York Times, July 7, 2006