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New York high court refuses to legalize
‘gay marriage’; conservatives applaud ruling

ALBANY, N.Y. (BP)–Handing homosexual activist groups a significant defeat, New York’s highest court July 6 upheld the state’s marriage laws, ruling that “gay marriage” is an issue for the state legislature, and not the courts, to decide.

The 4-2 ruling by the New York Court of Appeals was handed down barely a month after it heard oral arguments in late May. The case involved four lawsuits brought on behalf of 44 same-sex couples in part by Lambda Legal, a homosexual legal group, and the American Civil Liberties Union. Lambda Legal and the ACLU argued that New York’s marriage laws violated the state Constitution’s equal protection and due process clauses. But the court disagreed.

“We hold that the New York Constitution does not compel recognition of marriages between members of the same sex,” Associate Judge Robert S. Smith wrote for the court. “Whether such marriages should be recognized is a question to be addressed by the legislature.”

A victory in the nation’s third most populous state would have been a big one for homosexual activist groups, who are still searching for a second victory to accompany the landmark 2003 decision by the Massachusetts high court (called the Supreme Judicial Court) legalizing “gay marriage.” Now, all eyes focus on New Jersey and Washington state, where state high courts could hand down “gay marriage” decisions any week. But the second victory won’t take place in New York.

Smith and his colleagues — while not taking a position on whether the legislature should legalize “gay marriage” — said there is a rational basis for limiting marriage to heterosexuals. That rational basis, they said, can be rooted in the uniqueness of the heterosexual relationship regarding procreation.

“[T]he 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,” Smith wrote. “Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the legislature could find that this will continue to be true. The legislature could also find that such relationships are all too often casual or temporary.”

Smith further said the legislature could decide that “it is better … for children to grow up with both a mother and a father.”

“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,” he wrote. “It is obvious that there are exceptions to this general rule — some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes — but the legislature could find that the general rule will usually hold.”

Associate Judge Victoria A. Graffeo wrote a concurring opinion, while Chief Judge Judith S. Kaye wrote a dissenting opinion, arguing that the court should legalize “gay marriage.” A seventh judge recused himself since his daughter, an attorney, has advocated for “gay marriage.”

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

The New York decision was handed down the same day that the Georgia Supreme Court unanimously reinstated that state’s constitutional marriage amendment. It had been struck down by a lower court earlier this year.

“I’m delighted that there are some state courts in our United States of America that have rediscovered their proper role of interpreting the law and the state constitution instead of seeking to impose their own personal social agenda from the bench,” Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, told Baptist Press. “This is a reaffirmation of government ‘of the people, by the people, for the people’ and should encourage all Americans that their judiciary is not beyond repair. These are victories for marriage and the nation.”

The New York case had been watched closely by activists on both sides of the issue for more than a year. Within the past eight months, two intermediate New York appeals courts upheld the state’s marriage laws. One of those rulings overturned a trial court decision from February 2005 that had ruled “gay marriage” must be legalized. That decision, by New York Justice Doris Ling-Cohan, was appealed.

Chris Stovall, an attorney with the Alliance Defense Fund — which filed a brief on behalf of the Family Research Council supporting New York’s law — applauded the court for explaining “why it’s perfectly legitimate and rational” for the legislature to limit marriage to heterosexual couples.

“It’s a real repudiation of the Massachusetts Supreme Judicial Court,” he told BP. “… It does provide a very important counterbalance to Goodridge [the name of the Massachusetts decision].”

Stovall added he hopes the ruling has a “ripple effect.”

“They’re just across the river from New Jersey,” he said of New York. “New Jersey could issue their opinion any day now, but now they won’t be able to do it without having this context.”

Following the ruling, Lambda Legal and other homosexual activist groups urged New York Attorney General Eliot Spitzer and New York City Mayor Michael Bloomberg to work with the legislature to legalize “gay marriage.” Both men support “same-sex marriage,” and Spitzer is running for the Democratic nomination for governor.

“The court’s archaic reasoning is rooted in ignorance and completely contradicted by the facts of today,” Joe Solmonese, president of the Human Rights Campaign, a homosexual activist group, said in a statement. “The court threw the expert advice of child welfare professionals and years of scientific evidence out the window with its ruling against fairness…. We know that the struggle for equality is never quick or easy, but history has taught us that with determination, debate and devotion — the side of progress ultimately prevails. We will continue to move forward.”

In addition, Democratic National Committee Chairman Howard Dean issued a statement in which he seemed to come very close to endorsing “gay marriage.” He previously endorsed Vermont-style civil unions (which he signed into law as governor of that state).

“As Democrats, we believe that every American has a right to equal protection under the law and to live in dignity,” he said, according to the Associated Press. “And we must respect the right of every family to live in dignity with equal rights, responsibilities and protections under the law. Today’s decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal.”

The New York court rejected an argument by the plaintiffs comparing bans on “gay marriage” to former bans on interracial marriage. The U.S. Supreme Court overturned such interracial bans in its 1967 Loving v. Virginia decision.

“[T]he historical background of Loving is different from the history underlying this case,” Smith wrote. “Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges.

“… But the traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. 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. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”

Since winning a landmark “gay marriage” case in Massachusetts in 2003, liberal and homosexual activists have filed a series of lawsuits in other states with mostly left-leaning high courts — hoping to notch a series of victories on the state level in order to strengthen their legal case for a federal lawsuit. That suit would seek “gay marriage” legalization in all 50 states and would ask that the federal Defense of Marriage Act be overturned.

Seven states remain involved in “gay marriage” suits: California, Connecticut, Iowa, Maryland, New Jersey, Oklahoma and Washington.
For more information about the national debate over “gay marriage,” visit http://www.bpnews.net/samesexmarriage

    About the Author

  • Michael Foust