Court: Plaintiffs in Same-Sex Marriage Case Did Not Prove Ban Is ‘Wholly Irrational’

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In ruling there is no right to gay marriage in the state constitution, New York’s highest court found that the plaintiffs in the case had failed to prove the ban on gay marriage was “wholly irrational.”

The state’s Court of Appeals ruled 4–2 that so long as the state has reasonable aims — such as encouraging stability in family life — it can bar gay couples from marrying.

“Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals,” the junior member of the court, Judge Robert Smith, wrote, in an opinion signed by two other judges, Susan Read and George Bundy Smith. “This is the question on which these cases turn.”

The much-awaited decision is a setback for the 44 gay and lesbian couples who were represented in four lawsuits before the court. They had argued that the state infringed upon their rights to due process and equal protection when it refused to grant them marriage licenses. Attorneys for Mayor Bloomberg and Attorney General Spitzer opposed them in court, defending the Domestic Relations Law, which dates to 1909 and forbids same-sex marriages.

The decision has no effect on New York City’s policy of recognizing gay marriages or civil unions performed in other states or Canada. Currently, Massachusetts is the only state to allow gay couples to marry, although the issue is currently pending before the high courts in New Jersey and Washington state.

In its ruling yesterday, the court rejected comparisons between the current marriage cases and past lawsuits that challenged anti-miscegenation laws in federal court. The plaintiffs had argued that such civil rights-era cases established a fundamental right to marry the person of one’s choice.

Instead the opinion by Judge Smith, an appointee of Governor Pataki, held that the state could make several rational arguments for why it should not allow gay couples to marry. One argument that Judge Smith mentions, by way of example, contends that children benefit from a family environment consisting of a mother and a father. The test, Judge Smith suggests, is not whether such an argument is correct, but whether “the Legislature could rationally think” so.

In ruling that there is no constitutional violation, the court, in effect, bowed out of the gay marriage debate and deferred to the Legislature.

“It is not for us to say whether same-sex marriage is right or wrong,” Judge Smith wrote, continuing, later: “We believe the present generation should have a chance to decide the issue through its elected representatives.”

Lower courts have largely ruled against the lawsuits, although in February 2005 a Manhattan judge. Doris Ling-Cohan, did rule in favor of the couples.

Judge Smith’s opinion drew a dissenting opinion from the state’s chief judge, Judith Kaye, an appointee of Governor Cuomo, that begins by describing the plaintiffs as a group of New Yorkers from all walks of life. Her dissenting opinion, which was joined by another Cuomo appointee, Judge Carmen Ciparick, criticizes the majority decision for not finding that gay and lesbian couples have the same right to marry as heterosexual couples.

“Simply put, fundamental rights are fundamental rights,” Judge Kaye wrote. “They are not defined in terms of who is entitled to exercise them.”

In her dissent, Judge Kaye suggests that she does not expect the Legislature now to change the marriage law, following yesterday’s opinion. In her decision she cites seven failed efforts by Albany lawmakers in recent years to provide for same-sex marriages.

“I am confident that future generations will look back on today’s decision as an unfortunate misstep,” she concludes.

The majority opinion looked to past generations for guidance.

“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,” Judge Smith wrote. “A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted.”

Judge Victoria Graffeo released an opinion concurring with Judge Smith. The seventh judge on the court, Judge Albert Rosenblatt, recused himself from the case.

Several plaintiffs said yesterday that they intend to continue living in New York, rather than moving to Massachusetts, although it meant putting off plans for marriage.


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