Fueling the argument that some gay activists are using the courts to circumvent the democratic process, leaders in the state Legislature said moves to pass a measure giving same-sex marriage legal status would fail, leaving the courts as the activists’ only hope.

That concern was aired last week when a judge of state Supreme Court in Ithaca, Robert Mulvey, ruled against 25 same-sex couples who sued to obtain wedding licenses. He wrote that it is up to the Legislature to determine whether marriages between gay men or between lesbians should be made legal.

Same-sex marriage and judicial activism were also much discussed after a February 4 ruling in state Supreme Court at Manhattan by Justice Doris Ling-Cohan, who determined that the state Constitution required government recognition of same-sex marriages. Her ruling applies only to Manhattan and will not take effect until after an appeal by the city is heard. In announcing that appeal, Mayor Bloomberg said that though he thinks same-sex marriage should be legal, it is important to have a definitive statewide ruling on the issue from the Court of Appeals.

That court, the state’s highest, begins its next session March 21.

If the Court of Appeals does hear a case on same-sex marriage, it might not be the one ruled on by Justice Ling-Cohan, according to a spokesman for Attorney General Eliot Spitzer, Darren Dopp. Mr. Dopp said there are five same-sex marriage cases currently making their way through the courts, some of which are further along in the appellate process than the city’s case. A Court of Appeals ruling on any of them would moot the city’s case, Mr. Dopp said.

For same-sex marriage to become law in New York through the legislative process, the state Senate and Assembly would have to approve identical bills modifying state statutes, which would then have to be approved by the governor.

A spokesman for Governor Pataki, Andrew Rush, said the governor “believes that marriage is between a man and a woman, and he is comfortable with the laws as they presently exist in New York State.”

Mr. Dopp said Mr. Spitzer, who is seeking to replace Mr. Pataki in 2006, has said that he personally has no problem with permitting same-sex couples to wed, but that his professional view is that current law prohibits gay marriage. As attorney general, Mr. Spitzer is responsible for defending the constitutionality of current state statutes in four of the five cases presently in the courts, Mr. Dopp said.

In the Legislature, there seems to be consensus that a bill legalizing same-sex marriage would fail in the Senate, which has 35 Republican members and 27 Democrats. The fate of a bill on same-sex marriage in the Assembly, where Democrats outnumber Republicans 104 to 46, seems less certain.

The sponsor of the Assembly bill to recognize same-sex marriage, Manhattan Democrat Richard Gottfried, said that even he didn’t expect its passage.

“I think for the Legislature to pass my bill would require a significant change … in public sentiment in New York,” Mr. Gottfried said.

“Without a Court of Appeals decision, my bill at the moment is mainly a vehicle for helping to advance public opinion,” he added.

Aides to the Senate majority leader Joseph Bruno, and minority leader David Paterson said Republicans in the Legislature are fairly unified in their opposition to legalizing same-sex marriage. A spokesman for Mr. Bruno, Mark Hansen, said the senator opposes same-sex marriage, and added that while he couldn’t speak for all of the Senate’s Republicans, “most of them would not support the legalization of gay marriage, and any such proposal would not have enough support to pass the Senate.”

Some Democrats said their conference contains more diversity of opinion, such that the party’s numerical advantage in the Assembly would not necessarily signal victory for same-sex unions.

A number of members of the Democratic conference are actually among same-sex marriage’s staunchest opponents. Indeed, the sponsor of an Assembly defense-of-marriage bill that would limit state-recognized marriage to the union of one man and one woman is a Democrat: Anthony Seminerio of Queens.

Another Assembly Democrat who opposes same-sex marriage, Dov Hikind of Brooklyn, questions the degree to which his colleagues’ support of it is based on personal conviction.

“Being for the gay agenda is almost a must for people politically who want to attain higher office – that’s the reality,” Mr. Hikind said. “I can tell you there are people in my party who have expressed feelings privately begging and pleading that the issue never come up. They don’t want to have to vote on this particular issue, it creates a lot of problems for them in terms of supporting it.”

A third Assembly Democrat, Ruben Diaz Jr. of the Bronx, said: “I oppose gay marriage. However, I think for the most part what you get in the Legislature is that this is an issue many people know they don’t want to touch.”

Mr. Diaz’s father, a Democratic state senator of the Bronx, said he thought activists and judges were trying to legalize same-sex marriage through the courts “because they know they can’t do it through legislation.”

He also argued that because judges upstate have ruled that the state Constitution does not require the recognition of same-sex marriage – a decision in conflict with Justice Ling-Cohan’s ruling – it would require a decision by the Legislature to clarify what state law is.

Along the same lines, the Senate sponsor of a defense-of-marriage bill, Serphin Maltese, said judge-imposed recognition of same-sex marriage limits the potential for the kind of debate over contentious issues provided for by the legislative process.

“To have an individual judge seek to impose her will on the people simply because of her judicial robes and law degree is unfair, and counter to the Constitution, and counter to logic and reason,” the Queens Republican said.

Some legislators, however, approved of yielding to the courts on the issue of same-sex marriage.

The sponsor of the Senate bill to recognize same-sex marriage, Thomas Duane, said: “I favor courts’ looking at issues of discrimination. I also think it’s even more important these days when so many politicians are pandering to people’s worst fears and basest intentions. We need courts to rise above that stuff that politicians do.”

Mr. Duane also expressed confidence that the Court of Appeals will rule in favor of same-sex marriage and that the decision would survive.

“I’m not concerned even when the court legalizes same-sex marriage once and for all that there would be any kind of constitutional amendment,” he said.

For an amendment to pass, it would require approval by both houses in two consecutive legislatures before appearing before the electorate on the ballot, meaning it would take a few years for New Yorkers’ elected representatives to undo any potential ruling by the Court of Appeals.

By then, according to the first openly gay member of Congress, Barney Frank, it would be unlikely that the Legislature and the public would vote to overturn the court’s decision.

The Massachusetts Democrat said that at the time same-sex marriage became legal in his state last year as the result of a ruling by the Supreme Judicial Court, a vote by the legislature to legalize gay marriage would have failed.

“But now that we’ve had same-sex marriage since May,” Mr. Frank said, “nobody cares anymore.”