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NY High Court Nixes Gay Marriage

(Albany, New York) The Court of Appeals, the highest court in New York State, ruled Thursday that the state "Constitution does not compel the recognition of marriages between members of the same sex."

In a 4 - 2 decision, the court said that "Whether such marriages should be recognized is a question to be addressed by the Legislature."

The court heard arguments in May in an omnibus case involving four different lawsuits brought by 44 gay and lesbian couples.

Only six justices were on the bench to hear the combined cases. Justice Albert M. Rosenblatt, considered by many a swing vote, recused himself.

In lower courts judges in three of the cases upheld the current ban on same-sex marriage. In the fourth, New York City judge Doris Ling-Cohan ruled that the New York State Constitution guarantees basic freedoms to lesbian and gay people, and that those rights are violated when same-sex couples are not allowed to marry. That ruling was overturned in a midlevel appeals court.

Writing for the majority Justice Robert Smith said that the Domestic Relations Law, which governs marriage, does not specifically say that only people of different sexes may marry each other, but "that was the universal understanding when Articles 2 and 3 were adopted in 1909, an understanding reflected in several statutes."

The court also said that there are "at least two grounds that rationally support the limitation on marriage that the Legislature has enacted." Two of those, the ruling said, involve children.

"First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.

"Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not."

The ruling also noted that the Legislature could "rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father."

The justices said in the ruling that the same-sex couples fighting for marriage equality "have not persuaded us that this long accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals ... If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice - if we agreed with the plaintiffs that it is comparable to the restriction in Loving v Virginia a prohibition on interracial marriage that was plainly 'designed to maintain White Supremacy' -- we would hold it invalid, no matter how long its history."

In a dissent, Chief Judge Judith Kaye said the court failed to uphold its responsibility to correct inequalities.

Kaye said that several bills that would have permitted same-sex marriage have been introduced in the Legislature over the past several years, but none ever has made it out of committee.

"It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation," she wrote.

"The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today's decision as an unfortunate misstep."

A poll released in April showed that a majority of people across New York State support same-sex marriage.

Decisions in challenges to state laws barring same-sex marriage are pending in two other states.

Arguments in New Jersey were heard in February. (story)

In the state of Washington the wait for a ruling on gay marriage has turned into a marathon.

Arguments challenging the state's ban on same-sex marriage, the so-called Defense of Marriage Act, were made before the Washington state Supreme Court in March 2005.

Meanwhile, in California, a mid level appeals court will hear an omnibus same-sex marriage case next week. That case is expected to reach the California Supreme Court next year.

The only state where same-sex marriage currently legal is Massachusetts. Gay and lesbian couples there began marrying in May 2004 after that state's high court ruled the ban on same-sex marriage was unconstitutional.

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