ALBANY – Lawyers for same-sex couples seeking the right to marry in New York told the state’s highest court yesterday they are being treated as “unequal citizens” and denied a constitutional right.

The 44 couples want the Court of Appeals to follow the lead of high court judges in neighboring Massachusetts and rule that New York’s constitution gives same-sex couples the same right to wed that straight couples have always had.

“We are evolving as a society,” one of the lawyers representing the couples in four lawsuits before the court, Terence Kindlon, said. “And just because we did something 200 years ago, or 100 years ago or 50 years ago, it’s not necessarily a good justification to do it now.”

The couples have lost in lower appeals courts and are at odds with Governor Pataki’s health department and state Attorney General Eliot Spitzer’s office, which claim New York law prohibits issuing licenses to same-sex couples. Yesterday, their lawyers faced pointed questions from judges and government lawyers arguing that the couples were asking the court to reach beyond its jurisdiction.

“Our bottom line here is that if there are going to be changes, they’re going to be done by the Legislature,” the senior counsel with the attorney general’s office, Peter Schiff, said. New York City’s lawyer, Leonard Koerner, agreed that even if gay marriage was deemed desirable, it’s not the court’s role to implement it.

The six Court of Appeals judges peppered the lawyers for the couples with questions. Judge George Bundy Smith repeatedly asked them why the courts should be defining marriage. “Why isn’t this a legislative matter?” he asked. Judge Robert Smith told a lawyer explaining how the concept of civil rights changes over time that “you have literally the whole history of Western civilization against you.”

With some of the gay couples looking on in court, their lawyers argued that limiting marriage to a man and a woman violates the equal protection, privacy and due-process provisions of the state Constitution. Attorney Richard Stumbar said the law now treats them as “unequal citizens.”

Susan Sommer of Lambda Legal told the judges they should assert their role as protectors of constitutional rights since the state Legislature is falling short.

The cases argued yesterday were filed two years ago, when gay marriage controversies flared up from Boston to San Francisco. The initial flashpoint in New York was the Hudson Valley village of New Paltz, where the mayor married about two dozen gay couples in February 2004.

Appeals courts in New York have rejected arguments that the couples are being denied a fundamental constitutional right. One court victory for gay couples came from a Manhattan trial level judge, but a ruling by a state Supreme Court justice, Doris Ling-Cohan, was overturned.

With slim hopes of getting a gay marriage bill signed into law in New York anytime soon, gay advocates have vigorously pursued the four court cases on behalf of the couples, which include the brother of comedian Rosie O’Donnell and his longtime partner.

“For the past three years, gays and lesbians in Massachusetts have been able to get a common law marriage, and not one heterosexual person has been harmed by it,” Daniel O’Donnell, a state Assemblyman from New York City, said on the court steps after the arguments.

Another plaintiff, Curtis Woolbright, told reporters, “Our desire to marry is about us about love, respect and dignity. We hope the justices of the court understand that we want equality, nothing less, nothing more.”

Massachusetts’ high court ruled in 2003 that the state Constitution there gives same-sex couples the right to marry. Massachusetts remains the only state where same-sex couples can wed.

New York Court of Appeals Judge Albert Rosenblatt recused himself from the gay marriage case. Court judges do not say why they excuse themselves, though his daughter told the New York Law Journal it was because she was an attorney involved in similar cases in California.

A decision from the court could come in a month or two.