By MARK JOHNSON
Associated Press Writer

ALBANY, N.Y. - The top courts in two states dealt setbacks to the gay marriage movement Thursday, with New York's highest court ruling same-sex unions are not allowed under state law and the Georgia Supreme Court reinstating a voter-approved ban on gay marriage.

In New York, the Court of Appeals said in a 4-2 decision that the state's marriage law is constitutional and clearly limits marriage to a union between a man and a woman.

Any change in the law would have to come from the state Legislature, Judge Robert Smith said.

"We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives," Smith wrote.

In Georgia, the state Supreme Court reversed a lower court's ruling, deciding unanimously that the ban did not violate the state's single-subject rule for ballot measures. The ban had been approved by 76 percent of voters in 2004.

Massachusetts is the only state that allows gay marriage, although Vermont and Connecticut allow same-sex civil unions that confer the same legal rights. Forty-five states have barred same-sex marriage through statutes or constitutional amendments.

The New York decision said lawmakers have a legitimate interest in protecting children by limiting marriage to heterosexual couples and that the law does not deny homosexual couples any "fundamental right" since same-sex marriages are not "deeply rooted in the nation's history and tradition."

"It's a sad day for New York families," said plaintiff Kathy Burke of Schenectady, who is raising an 11-year-old son with her partner, Tonja Alvis. "My family deserves the same protections as my next door neighbors."

The state had prevailed in lower appeals courts.

"I am satisfied that today's decision by the state's highest court to uphold our position that marriage is between a man and a woman is the right one," Gov. George Pataki, a Republican, said in a statement.

The lawsuit over the Georgia ban focused on the wording of the ballot measure that voters approved.

Lawyers for the plaintiffs had argued that the ballot language addressed more than one issues and that it was misleading because it asked voters to decide on both same-sex marriage and civil unions, separate issues about which many people had different opinions.

State officials held that Georgians knew what they were voting on when they overwhelmingly approved the ballot measure.

In New York, 44 couples acted as plaintiffs in a series of lawsuits filed two years ago after the Massachusetts decision legalizing gay marriage sparked gay marriage controversies across the country.

With little hope of getting a gay marriage bill signed into law in Albany, advocates marshaled forces for a court fight. Among the plaintiffs were the brother of comedian Rosie O'Donnell and his longtime partner.

Plaintiff Regina Cicchetti said she was "devastated" by the ruling. But the Port Jervis resident said she and her partner of 36 years, Susan Zimmer, would fight on, probably by lobbying the Legislature for a change in the law.

"We haven't given up," she said. "We're in this for the long haul. If we can't get it done for us, we'll get it done for the people behind us."

In a dissent, Chief Judge Judith Kaye said the court failed to uphold its responsibility to correct inequalities when it decided to simply leave the issue to lawmakers.

"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."

High courts in Washington state and New Jersey are also deliberating cases in which same-sex couples argue they have the right to marry, and a handful of other states have cases moving through lower courts.

ARGH!!!

When you get a lemon, make lemonade.

This kind of deflates the whole "liberal activist judge threat" argument.

What kind of moves are there to institute something at least like civil unions in New York?

Don't get me wrong, I'm not saying gays should settle for that. But if that could be passed in a place like New York (and if you can get equal marriage rights, by all means go for it) then that would be some progress.

Here, I would hope we could avoid going backwards, at least symbolically. A constitutional ban on gay marriage is going to be on the ballot this November. Not that Virginia has authorized gay marriage or civil unions, or is likely to do so any time soon.

Connecticut managed to legislatively institute civil unions, the only state to do so. And their Republican governor signed the bill establishing them. That was just as suprising. Though I believe that same law also outlaws same-sex marriage. Still, it was better than nothing, and definitely better than a constitutional amendment banning same-sex marriage. Laws can be overturned. Constitutional amendments are a lot more difficult to reverse.

http://www.rawstory.com/news/2006/Dean_bla...ng_on_0706.html

The CA Legislature also voted in favor of same-sex marriage. So there is gradual progress on that front in some places.

Nonetheless the New York decision was disappointing, as we came within two votes of having equal marriage rights in a second state. We *need* marriage rights in a second state so that gay Americans of all states can marry in their own country. (As we know, MA forbids this.) So now, the Washington state ruling figures to be the next big opportunity.

Now, the GA decision was no big deal. If the GA court had upheld the lower court ruling, it would have just gone back on the ballot in November in a different form. It is just as well that the gay residents of GA don't have to go through that again.

You know, it's nice, and it's interesting that Dean would say this. However ...... why doesn't he do something to improve the situation for gay people within the DNC specifically and the Democratic Party in general????? Seems like he is in a postion to effect at least some change, which he has not done.

It is also important that we get a second state in the relatively near future to serve as protection for the precedent of same-sex marriage. As this story shows, marriage rights are not yet secure in MA.


BY FRANK PHILLIPS
The Boston Globe

Taking on Governor Mitt Romney and the Catholic Archdiocese of Boston, 165 prominent business and civic leaders are publicly calling for the Legislature to reject a proposed constitutional amendment banning same-sex marriage.

The group, which includes leading bankers, healthcare executives, lawyers, and leaders of the Greater Boston Chamber of Commerce, has purchased an ad in
The Boston Globe that says the amendment would ”take away rights.” It urges lawmakers to ”move on to other important issues like strengthening the economy, improving our schools, and protecting our neighborhoods.”

The signers include Patriots owner Robert Kraft and his wife, Myra; real estate developer Robert Beal; Mayor Thomas M. Menino; chamber president Paul Guzzi, and more than 20 members of the chamber’s board of directors; architect Graham Gund; author Robert B. Parker; venture capitalist Richard M. Burnes Jr.; Boston Foundation president Paul S. Grogan; and Stacey Lucchino, who is married to Red Sox chief executive Larry Lucchino.

The ad, which is being paid for by the advocacy group MassEquality, will run on Monday, two days before a scheduled vote on Beacon Hill. State lawmakers are to meet Wednesday to consider the proposed amendment, which is backed by a coalition led by the Massachusetts Family Institute, an opponent of same-sex marriage. The amendment needs the support of 50 lawmakers during the current and next legislative sessions to reach the November 2008 ballot.

Chad Gifford, former chairman of Bank of America, who is one of the ad’s signers, said that if the marriage amendment goes to the ballot, the state’s political leadership would be consumed by a divisive debate that will divert lawmakers’ attention from more important issues, such as education, the economy, and the environment.

”This could become obsessive and harmful to the Commonwealth,” Gifford said. ”I don’t think it is good for the state to be involved in a two-year contentious debate, with a lot of national attention.”

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, said the ad reflects concern among the business community that an emotionally charged debate would hurt the state’s business climate. She said that concern will resonate on Beacon Hill.

”They are contributing a unique aspect,” Isaacson said. ”These people whose expertise are the business and the economy are harping on the topic that banning same-sex marriage is bad for business, bad for job growth, and bad for the economy. That is a very powerful message for legislators from the biggest business leaders in the state.”

She said that business people and civic leaders spoke individually during the debates over same-sex marriage in 2003 and 2004, but the ad represents a broader coalition that had not previously spoken in unison on the subject.

A spokesman for Romney said the governor would have no comment on the group’s ad.

But Kris Mineau, president of the Massachusetts Family Institute, strongly rejected the argument that the state’s businesses are hurt by the effort to repeal same-sex marriage.

”Polls show that Massachusetts has the most negative image of the 50 states, and the capstone of why people around the country feel that way is the legalization of same-sex marriage,” Mineau said.

The state’s four Catholic bishops issued a statement, dated Friday, saying that the push for same-sex marriage stems from ”an exaggerated sense of entitlement.”

The bishops said the proposed constitutional amendment to ban same-sex marriage ”is not extreme, bigoted, or religiously sectarian” but ”reflects the deeply rooted consensus in our society about what marriage is.”

”In our society, every person has the civil right to marry, but no person should have the right to tailor the institution of marriage to his or her personal wants,” the bishops’ statement said. ”An exaggerated sense of entitlement is eroding the right of society to have a strong institution of marriage.”

Supporters of gay marriage have vowed to do whatever it takes, including using parliamentary tactics to prevent a vote, to end the challenge to the 2003 Supreme Judicial Court decision that made Massachusetts the first state to legalize same-sex marriage. Forces that support that ruling are hoping the ad boosts the effort to kill the proposed ban before it reaches the voters.

Last week, Romney and Cardinal Sean P. O’Malley called on the lawmakers to allow a vote, expressing concern that opponents of the amendment would prevent it from coming before the House and Senate when those lawmakers, 200 in all, meet as a constitutional convention, a move that would kill the initiative petition.

To reach the 2008 ballot, the amendment needs the support of at least 50 legislators at the Constitutional Convention and then at least 50 votes at another Constitutional Convention during the 2007-2008 legislative session.

Both sides have said the amendment has 50 votes. If so, supporters of same-sex marriage could try other tactics to block the amendment. A lawmaker could, for example, push to adjourn the convention before the measure comes up for debate. Opponents of the amendment could also try to persuade lawmakers to stay away, so that the convention would not have a quorum.

Wednesday, Mineau expressed confidence that opponents of same-sex marriage have solid support from at least 50 lawmakers and that the only issue is whether a vote on the amendment will take place.

”Our amendment is the people’s amendment,” Mineau said, adding that the petition for the proposal before the convention was signed by a record 170,000 voters. ”This is not a special-interest amendment. ... It’s about democracy and letting the people (have) the right to vote.”

The ad signed by the business and civic leaders does not address whether the proposal should be voted on, but rather focuses on trying to persuade legislators to block any efforts to add what they contend is a discriminatory amendment to the Massachusetts Constitution.

”I believe we should not write discrimination into the Constitution, and I oppose efforts to amend the Constitution that would take away rights, including the right of gay and lesbian citizens to marry,” the ad says. ”I urge the Legislature to reject the proposed constitutional amendment and, instead, move on to other important issues.”

A lot more info on the decision and the dissent from the New York ruling. The judges in the majority opinion really missed the mark, relying on stupid, outdated definition of marriage as being about child-rearing.

And how about this doozy trying to say same-same marriage is different from interracial marriage:

The majority decision argued that any comparison with anti-miscegenation laws — overturned by the U.S. Supreme Court in 1967 — was flawed because discrimination against homosexuals has been recognized only recently, while, “Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil.”

I just don't know what to say. That four judges on the New York high court could be so ignorant ..........



By Sarah Garland, Diane Cardwell and Danny Hakim
New York Times

New York’s highest court rejected Thursday a broad attempt by gay and lesbian couples across the state to win the right to marry under state law, saying that denying marriage to same-sex couples does not violate the state constitution.

By a 4-2 majority, the Court of Appeals found that the state Legislature, in laws dating back nearly 100 years, intended to limit marriage to a union between a man and a woman, and that the Legislature had a rational basis for doing so. The court said it would be up to lawmakers to decide whether same-sex marriage should be permitted.

The majority decision, written by Judge Robert S. Smith, found that limiting marriage to couples of the opposite sexes was based on legitimate societal goals, primarily the protection and welfare of children.

It could well be argued, he said, that children are better off raised by a mother and a father, rather than by a gay or lesbian couple.

“Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals,” Smith wrote in his 17-page opinion.

The court’s chief judge, Judith S. Kaye, issued a sharp dissent, warning that future generations would look back at Thursday’s decision as “an unfortunate misstep.”
She said that barring gay marriage was tantamount to barring interracial marriage, as laws formerly did.

“The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it,” Kaye wrote in a 27-page opinion, in which she was joined by Judge Carmen Beauchamp Ciparick.

Gay and lesbian groups viewed the decision as a setback, though it was not unexpected. “Today is a sad day for all New Yorkers who believe in the constitutional guarantee of equal protection under law,” said Roberta A. Kaplan, lead counsel with the American Civil Liberties Union and the New York Civil Liberties Union for the plaintiffs in one of four cases consolidated in the same ruling.

The ruling was hailed by many others, including Gov. George E. Pataki, who said the decision was the “right one,” because marriage between a man and a woman had been the law of the state “for more than 200 years.”

Pataki, who is in the final year of his third and last term, said that he would not sign a bill legalizing gay marriage if one were sent to him by the Legislature.

The Family Research Council, a conservative Christian lobbying organization, which had filed a “friend of the court” brief opposing gay marriage, issued a statement praising the judges in the majority for not “substituting their own social policy preferences” for those of “the people.” The statement described the court’s decision as “a shining example” for other courts across the nation.

The decision by the Court of Appeals that it would be up to the Legislature to act had politicians and others mobilizing immediately for a fight in Albany.

“Deep down we’ve been preparing for a defeat,” said Alan Van Capelle, executive director of Empire State Pride Agenda, a lobbying group focusing on gay rights. He said it had taken 31 years for the state to pass a law prohibiting discrimination on the basis of sexual orientation, and added, “I promise the couples that it won’t take 31 years.”

The decision comes at a time when the country is deeply divided over the issue of gay marriage. Surveys show that a majority of Americans oppose same-sex marriage, but that when the word “marriage” is not used in poll questions, people are more sympathetic to gay and lesbian issues, according to Public Agenda, a policy research group.

So far, the highest court in Massachusetts is the only appellate court in the country to have ruled that same-sex marriage is permitted by the state constitution. Cases involving gay marriage are pending in the high courts of New Jersey and the state of Washington.

The Georgia Supreme Court reinstated a ban on same-sex marriage Thursday, hours after the New York ruling. Vermont’s high court found that the benefits of marriage should be provided to same-sex couples, but deferred to the Legislature, which enacted a law providing for same-sex civil unions, rather than marriage. Connecticut, too, permits civil unions of same-sex couples.

The plaintiffs in New York, 44 couples across the state in four lawsuits, argued that the state constitution guaranteed equal treatment for gay and lesbian couples under the Domestic Relations Law. The current version of that law dates to 1909 and uses terms like “bride” and “groom.”

The plaintiffs argued that anything less than marriage — civil union, for instance — might provide some of the same legally mandated benefits, but would relegate gay and lesbian couples to second-class citizenship.

“Each New Yorker is free to choose wisely or poorly without regard to whether the marriage has the stamp of public approval, unless he or she would marry a partner of the same sex,” Susan L. Sommer, a lawyer for Lambda Legal, and
Jeffrey S. Trachtman, a lawyer representing the plaintiffs in Hernandez v. Robles, said in one brief submitted to the court.

In February 2005, Hernandez v. Robles, which was filed against the city clerk of New York, who issues marriage licenses, became the only one of the four cases to win in a lower court, and it was appealed by Mayor Michael R. Bloomberg, who at the time was facing a primary campaign for re-election. Thursday’s decision closely tracked the arguments raised by his corporation counsel and by lawyers for Eliot Spitzer, the attorney general.

Bloomberg, appearing with Pataki at an unrelated event Thursday, refused to be drawn out on the substance of the court’s ruling, but said, as he has in the past, that he would “personally campaign to change the law.”

In an unusual split for the Court of Appeals, two separate opinions were issued supporting the decision. The one written by Smith, a Pataki appointee, was signed by two other judges, Susan Phillips Read, another Pataki appointee and George Bundy Smith, the only black member of the panel, who was appointed by former
Gov. Mario Cuomo, a Democrat, and who is seeking reappointment in September.

The second opinion, written by Judge Victoria A. Graffeo, a Pataki appointee, upheld the majority, but distanced itself from the sociological arguments that the purpose of the marriage law was to promote families with children.

“Marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing,” Graffeo said, in a 22-page concurrence.

She exhorted the Legislature to take up the issue, saying, “It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate.”

A seventh judge, Albert M. Rosenblatt, recused himself.

In the majority opinion, Smith, a Pataki appointee, said that because same-sex marriage was not deeply rooted in history and tradition, barring it did not violate fundamental rights and liberties.

The majority decision argued that any comparison with anti-miscegenation laws — overturned by the U.S. Supreme Court in 1967 — was flawed because discrimination against homosexuals has been recognized only recently, while, “Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil.”

On the issue of child-rearing, the majority wrote that despite scientific advances, most children are still born to heterosexual couples, so the state has a legitimate interest in promoting their marriage over others. “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,” the judges said.

Kaye, however, argued that the historic and cultural understanding of marriage did not justify discrimination.

“Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional,” Kaye said in her 27-page dissent. “As history has well taught us, separate is inherently unequal.”

Kaye, who has served on the court for 13 years, said that the understanding of marriage has evolved. Until well into the 19th century, for instance, she said, wives were considered the property of their husbands and married women could not own property or enter into contracts.

“Only since the mid-20th century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support,” she wrote.

She said that while encouraging opposite-sex couples to marry could be good for the welfare of children, denying marriage to same-sex couples did not further that desire in any way.

“The state’s interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses,” Kaye wrote.

Bearing children, she said, is not a prerequisite of marriage, since the elderly and even prison inmates are permitted to marry, and many same-sex couples do have children.

“Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage — purportedly to encourage other people to procreate,” she wrote.

Kaye’s dissent was a departure from the dry legal language of the main decision.
She noted that the plaintiffs represented a cross-section of ordinary New Yorkers, including a police officer, a doctor, a teacher and an artist, who wanted “only to live full lives, raise their children, better their communities and be good neighbors.”

Most people, she noted, look forward to a wedding “as among the most significant events of their lives,” and she said it was wrong for gays and lesbians to be denied marriage, “because of who they love.”

Absolutely. It is just so incredibly disappointing that this generation does not right the wrong.

NY Highest Court Upholds Gay Marriage Ban

July 6, 2006
New York Times

By ANEMONA HARTOCOLLIS

New York's highest court today turned back a broad attempt by gay and lesbian couples across the state to win the right to marry and raise children under New York State's marriage law, saying that denying marriage to same-sex couples does not violate the state constitution.

In a 4-2 decision, the Court of Appeals found that the state's definition of marriage as a union between a man and a woman, enacted more than a century ago, could have a rational basis, and that it was up to the State Legislature, not the courts, to decide whether it should be changed.

The majority decision, written by Judge Robert S. Smith, who was appointed by Gov. George Pataki, found that limiting marriage to opposite-sex couples could be based on rational social goals, primarily the protection and welfare of children.

"Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals," Judge Smith wrote in his 22-page opinion. For example, he wrote, it could be argued that children benefit from being raised by two natural parents, a mother and a father, rather than by gay or lesbian couples.

Chief Judge Judith Kaye wrote a dissenting opinion and was joined by Judge Carmen Beauchamp Ciparick, both appointed by Gov. Mario Cuomo, a Democrat. Judge Kaye warned that future generations would look back at yesterday's decision as "an unfortunate misstep," and would consider the barring of gay marriage as an injustice akin to the laws that once barred interracial marriage, an analogy the majority on the court rejected.

Gay and lesbian groups viewed the decision as a major setback, even though the court's ruling was not altogether unexpected.

"Today is a sad day for all New Yorkers who believe in the constitutional guarantee of equal protection under law," said Roberta A. Kaplan, a lawyer for the plaintiffs in Samuels v. Department of Health, one of four cases consolidated in the same ruling. "Chief Judge Kaye's dissent got it exactly right in saying that future generations will come to see today's decision as a terrible mistake."

Advocates for recognizing same-sex marriage acknowledged that getting any major change in the law through New York's divided legislature would be a difficult challenge.

New York lawmakers have not appeared in any rush to act on the issue, although the leading Democratic candidate for governor, Attorney General Eliot Spitzer, has promised gay rights groups that he will seek to legalize gay marriage if he is elected in November. Mr. Spitzer's Democratic rival in the race, Thomas R. Suozzi, and the Republican nominee, John Faso, oppose legalizing gay marriage.

Today's court decision comes at a critical juncture, when the country seems deeply divided, both politically and legally, on the issue of gay marriage.

So far the highest court in Massachusetts is the only appellate court in the country to have ruled that recognition of same-sex marriage is required by the state's constitution.

By contrast, the Georgia Supreme Court rejected a constitutional challenge to that state's laws against same-sex marriage today, overruling a lower court, just as the New York court did.

In an earlier ruling, Vermont's high court came down in between, finding that the benefits of marriage should be provided to same-sex couples but deferring to the legislature on the means. Vermont and Connecticut have enacted laws recognizing civil unions between gay couples, rather than marriages.

Cases like New York's are pending in the courts of New Jersey and the state of Washington.

Many states and the federal government have enacted "defense of marriage" laws, restricting the rights and benefits of same-sex couples. Yet President Bush's push for a constitutional ban on same-sex marriage was rejected by the Senate in June.

In an unusual split for the New York Court of Appeals, two separate opinions were issued supporting the decision. The one written by Judge Smith was signed by two other judges — George Bundy Smith, a Cuomo appointee and the only black member of the panel, and Susan Phillips Read, a Pataki appointee.

The second opinion, written by Judge Victoria A. Graffeo, a Pataki appointee, upheld the majority, saying their decision was rational. But she seemed to be distancing herself from the sociological arguments that the purpose of the marriage law was to promote families with children.

"Marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing," Judge Graffeo wrote in a 22-page concurrence.

The judge exhorted the Legislature to take up the issue: "It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate."

In the majority opinion, Judge Smith said that because same-sex marriage was not deeply rooted in history and tradition, barring it was not a violation of fundamental rights and liberties.

The majority decision argued that any comparison with anti-miscegenation laws was flawed because discrimination against homosexuals has been recognized only recently, while "racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil."

On the issue of child-rearing, the majority wrote: "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. 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."

Judge Kaye, however, argued that the historic and cultural understanding of marriage did not justify discrimination.

"Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional," Judge Kaye wrote in her 27-page dissent. "As history has well taught us, separate is inherently unequal."

"The claim that marriage has always had a single and unalterable meaning is a plain distortion of history," she wrote. Until well into the 19th century, for instance, she said, wives were considered the property of their husbands and married women could not own property or enter into contracts.

"Only since the mid-twentieth century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support."

She said that while encouraging opposite-sex couples to marry could be good for the welfare of children, denying marriage to same-sex couples did not serve that interest in any way.

"The state's interest in a stable society is rationally advanced when families are established and remain intact, irrespective of the gender of the spouses," Judge Kaye wrote.

"The ability or desire to procreate is not a prerequisite for marriage," she said. "The elderly are permitted to marry, and many same-sex couples do indeed have children."

She noted that the United States Supreme Court has held that even prison inmates have a fundamental right to marry, despite the limits of prison life that may make it impossible to conceive children.

And she said there were other legitimate ways to encourage people to raise children, such as subsidizing child care or requiring employers to provide family leave for parents.

"Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage — purportedly to encourage other people to procreate," she wrote.

Judge Kaye's dissent was a departure from the dry legal language of the main decision. She noted that the plaintiffs in the cases before the court represented a cross-section of ordinary New Yorkers, including a police officer, a doctor, a teacher and an artist, who wanted "only to live full lives, raise their children, better their communities and be good neighbors."

Most people, she noted, look forward to a wedding "as among the most significant events of their lives," and she said it was wrong for gays and lesbians to be denied marriage "because of who they love."

The court's ruling combined four different lawsuits filed by 44 gay and lesbian couples throughout the state, who argued that they had a constitutionally protected right to marry the way heterosexual couples do, and that current law denies them due process and equal protection of the law, violating the state constitution.

Only one of the four cases, Hernandez v. Robles, won a victory in the lower courts, in February 2005. New York City Mayor Michael Bloomberg, who was facing a primary campaign for re-election at the time, appealed the decision.

Mayor Bloomberg insisted that he supported allowing same-sex couples to marry, and that he appealed the case only to clarify the parameters of the law and the constitution. However, the court's decision closely tracked the arguments raised by the city's corporation counsel.

The other cases before the Court of Appeals, which were consolidated under the same ruling, are Samuels v. New York State Department of Health and Kane v. Marsolais, both brought in Albany County, and Seymour v. Holcomb, in Tompkins County.

This ruling is a disgrace. It is pigheaded and backward thinking. If the court did not wish to require same-sex marriage, it should have at least tried to find logical, legal grounds, instead of relying on outdated, narrow-minded right-wing arguments.

By DANNY HAKIM
New York Times

ALBANY, N.Y. — Attorney General Eliot Spitzer said on Thursday that he would draft and propose state legislation to legalize gay marriage in New York if elected governor in November.

His comments came after the New York Court of Appeals deferred to the Legislature on the issue, leaving the fate of gay marriage in New York to elected officials.

Although the right of gay couples to marry has widespread support among Democrats, it has little chance in the Republican-led Senate, with the majority leader, Joseph L. Bruno, reiterating his opposition on Thursday.

Any possibility of changing the law in New York could hinge on the ability of Democrats to overturn the 35-27 Republican majority in the Senate, a development that many in politics do not see as likely in November. Bruno, however, has been known to change his mind, and gay-rights advocates and lawmakers said his views on civil rights for gay people had shifted markedly during the nearly dozen years he has been majority leader.

Supporters of gay marriage rights in New York have often pinned their hopes on the courts to legalize such unions, perhaps mindful of the opposition of Gov. George E. Pataki. Now that the courts have rebuffed them, the effort to change the law through legislative means may gain new steam, particularly with Pataki leaving office.

Spitzer, who holds a commanding lead in opinion polls in the race for governor, restated his support even though his office had argued against gay marriage in its official capacity representing the executive branch.

“I believe same-sex marriage should be constitutional, should be legal, should be authorized statutorily,” he said on Thursday. “I think in New York there is recognition that this is the right thing to do from a civil rights perspective, and whether that will be sufficient in both the Assembly and the Senate, we’ll have to wait and see, but it is something I will draft and propose.”

Spitzer’s signal that he will actively back the legislation could help its prospects among Albany lawmakers, although many Republicans remain committed to defeating such legislation.

The Republican candidate for governor, John Faso, praised the court’s ruling and said, “If elected governor, I will work to ensure that marriage remains a relationship between a man and a woman.”

The Nassau County executive, Thomas R. Suozzi, who’s challenging Spitzer in the Democratic primary, said he did not support gay marriage, but hoped “we can come together to find other ways to provide gay and lesbians in long-term committed relationships the same economic rights and legal protections.”

The measure is not even a foregone conclusion in the overwhelmingly Democratic Assembly, where gay marriage bills have stalled for several years, though approval there is far more likely than in the Senate.

“The Court of Appeals decision is going to put this issue on the front burner for the Legislature, so while there has not been a focused effort to move the bill out of committee in the past, that changed this morning,” said Assemblyman Richard N. Gottfried of Manhattan, the sponsor of a gay marriage bill.

“I would suspect there would be a strong majority for the bill on the floor of the Assembly, but I don’t know if anyone has done a head count,” he added.

Advocates have been frustrated that the Assembly has not already passed legislation. “Their excuse has been they’ve been waiting on the courts,” said Matt Foreman, executive director of the National Gay and Lesbian Task Force and the former executive director of the Empire State Pride Agenda, the main lobbying group for gay rights in the state.

“The reality is there has been no leadership on this issue, or very little,” he said.

Bryan Franke, a spokesman for Speaker Sheldon Silver of the Assembly,
said: “The speaker plans to take up the issue of gay marriage with his conference. He thinks it’s premature to talk about the matter without first discussing it with the members of the Assembly.”

But the main battleground would certainly be in the Senate, which has emerged as the unpredictable force in Albany as its Republican leadership courts more moderate voters in the efforts to remain in power.

“I am opposed to gay marriage because I believe in the sanctity of marriage between a man and a woman,” Bruno said Thursday.

But he has softened his stance considerably over the years. When he became majority leader in 1994, Bruno rescinded domestic partner benefits for Senate staff members and also repeatedly blocked hate crimes legislation from coming to a floor vote. But he later reinstated domestic partner benefits and supported hate crime legislation.

In 2002, he spoke out in favor of the long-stalled Sexual Orientation Nondiscrimination Act, known as SONDA, saying, “Maybe I have become more enlightened.”

“I am going to vote for this legislation to express tolerance, antidiscrimination, and just to recognize that people have the right to live their lives as they see fit,” he added at the time.

Sen. Thomas K. Duane, a Manhattan Democrat who is gay, said of Bruno, “He has absolutely evolved in his thinking, and without his support, hate crimes, SONDA, would not have come to the floor.”

“On the issue of marriage, he never made a commitment to me, but he never closed off a discussion, and he never tried to dissuade me,” he added.

Foreman said Bruno had moved “180 degrees on his empathy for gay people, but he will not move before the Assembly does.”

Political pressure, and money, should not be discounted.

While the Conservative Party has opposed gay marriage, gay donors have been flexing their financial muscle. Alan Van Capelle, the executive director of the Empire State Pride Agenda, said his group’s political contributions grew from $40,000 two years ago to an expected $300,000 this year, including contributions to candidates and spending on voter outreach. Recipients have included Sen. Michael A.L. Balboni, a Nassau County Republican, who has sponsored legislation supported by the gay-rights groups. The group has also been courting and receiving support from major union leaders.

“Undoubtedly, this is going to be a major debate that we are going to have to take up in the next session,” said Sen. Nicholas A. Spano of Yonkers, another
Republican who has sponsored legislation supported by the gay rights groups in the past.

“There’s no doubt this will be a difficult debate,” said Spano, who said he supports domestic partnerships but has “not taken a position on gay marriage.”

At this time in my life I neither support nor oppose this issue. I will leave it to those that have a dog in the fight.

Dean on the ruling.

http://democrats.org/a/2006/07/its_up_to_t...ents=1#comments

Dean's statement makes me really wonder WTF is going on at the DNC. The DNC has been very hostile to gay rights causes, has yet to publicly oppose any of the state constitutional amendments, and in fact under Dean abolished its gay office. So why is Dean now sounding like a marriage rights advocate? Why does this just not all add up?????

I'm heartened to hear that Spitzer will propose legislation legalizing same-sex marriage, if (when) he's elected. And although equal-marriage rights are not yet fully secure in Massachusetts, public opinion has turned more favorable in the 2+ years since it was legalized here. I no longer think a ballot initialtive to ban it would pass here anymore. Most straight people have realized that it's really no big deal, and that it's had no effect on their lives. And those with gay friends & family members have seen the happiness and stability it has brought to their lives.

New Jersey has a law like that allowing domestic partnerships -In July 2004, the state of New Jersey enacted a law that is virtually the same as a typical civil union, giving same-sex couples most of the rights associated with marriage. Although the state government uses the term domestic partnership to denote these new unions, the law in fact gives many more rights than those given by the domestic partnerships of most other jurisdictions, and so the New Jersey situation is more often related to civil unions.

New York could do this...

I do not think the ruling is necessarily a disgrace.

We have to understand that the laws of different states are crafted in a variety of ways.

Now if New Yorks law ere identical to those of Massachusetts --- and the new York constitution identical...then I would suggest their result was a disgrace.

However, leaving the issue to the people to decide --- this being a democracy --- can not be a bad thing.

After all, the proponents of the case knew when they got into it that they were taking a short cut --- just like they did in Massachusetts --- and that there was a possibility their short cut would fail.

This is by no means an end to the issue --- and likely what has happened in Massachusetts --- with straight couples coming to accept --- and not seeing bad results -- will likely happen in time in New York.

Having a progressive governor like Elliot Spitzer will help as well.

Not knowing NY law I was willing to give them the benefit of the doubt --- but knowing the NYT --- perhaps I was wrong --- maybe their decision is indeed a disgrace --- standing corrected...

July 7, 2006
NY TIMES Editorial
Gay Marriage Setback
New York's highest court has harmed both the constitutional guarantee of equal protection and its reputation as a guardian of individual liberties by denying same-sex couples the right to marry.

The 4-to-2 ruling by the Court of Appeals, which left standing the state's discriminatory marriage laws, comes at a time of intense debate over gay marriage. It leaves the highest court in Massachusetts as the only appellate court willing to require recognition of same-sex marriage.

The ruling involved some twisted legal reasoning. Judges on both sides agreed that marriage is a fundamental right entitled to the highest level of constitutional protection. But the majority decision, written by Judge Robert S. Smith, an appointee of Gov. George Pataki, said this fundamental right applies only to heterosexuals. It said limiting marriage to opposite-sex couples could be based on a sense that children benefit from being raised by two natural parents, even without any hard evidence to show that.

Chief Judge Judith Kaye noted in her dissent that encouraging opposite-sex couples to marry could be good for the welfare of children, but said that does not mean that denying marriage to same-sex couples serves the interests of children in any fashion. She predicted that future generations would consider the new decision "an unfortunate misstep" and look upon barring gay marriage as akin to the laws that once barred interracial marriage. We agree.

But the immediate impact of the decision is to shift the battleground over gay marriage from the state courts to state lawmakers. Those who favor gay marriage need to quickly move past this week's disappointment and get energized. That also applies to those in the other states where courts have failed to uphold the rights of all Americans.

I think the New York ruling was a political copout: The court didn't want to take the political heat for allowing same-sex marriage, so they punted it back to the Legislature. I wish, though, that they had found a legalistic way to do it rather than relying on religious right arguments about child-rearing. So, heterosexuals who cannot have children should not then be allowed to marry?

With the GOP in charge of the Senate in New York, the prospects for legislative passage don't look good in the near term. We'll see if the Dems can pick up some seats in November.

And Rox, I hope you are right about the citizens of MA, as sooner or later, marriage rights there will likely be headed to the ballot box. But I am still uneasy about the prospect of an election. This is the type of issue that people will lie to pollsters about.

Having a great deal of respect for Judith Kaye --- I thought the opinion would be legalistic ---

Interpret the legislative intent of the statute to refer to heterosexuals or something which is probably impossible to find --- but like you say ---- making it based on the ability of a couple for rear children --- what if the couple foreswore having any children and petitioned the court on that basis--- does that mean they can get married then?

Dumb.

There is a chance it won't even get enough votes in the MA legislature to make it onto the ballot. This is because the proposed ban also outlaws civil unions. Lots of legislators who are opposed to same-sex marriage support civil unions in their place. And even some folks who have opposed equal marriage rights in the past are loathe to take away rights that were granted over two years ago. For instance, AG Tom Reilly (one of the Dem candidates for Governor) was originally opposed to same-sex marriage. But he has said that he would not seek to overturn it if he was elected Governor, because it would be wrong to deprive people of rights already granted to them by the state's Supreme Court.

The stories I've read seem to indicate that both sides think it has the necessary 50 votes. But they may try parliamentary procedures to kill it. If the civil unions ban proves to be a non-starter, then I would bet they will eventually come back with that removed. But anyway, this is one reason we desperately need a second state -- to protect the precedent in case something goes wrong in MA.

That does seem pretty shabby. I could have at least respected them for saying that they couldn't find such a right with the state constitution and laws as they currently stand. They very likely would have had a plausible legal theory for that (I am just guessing as I am not familiar with the NY constitution and laws, but I think that my guess is reasonable). But to bring up child-rearing seems like a hugely weak excuse.



I'm no expert on the NY Senate either, but it seems like some Northeastern Republicans could be reasonable on this issue. Remember that a Republican governor signed Connecticut's civil union law. But I am sure that you are right that it would help if the Dems get more seats there.

My guess about Massachusetts is that time is on the side of those supporting gay marriage, for just the reason that Rox keeps bringing up. With experience people see that the sky is not going to fall. People can follow the strictist, most traditional kind of Catholic (or other kinds of) principles concerning marriage and sex, and the right to gay marriage won't affect that in the least.

You are right to say that it isn't in the bag though in Mass., although I would be optimistic. I want to bring up my own state, Virginia, again. A constitutional ban on gay marriage will be on the ballot November. It would be nice if we could at least keep the margin of victory from getting too high.

If the ban it does manage to make it onto the ballot in MA, I'm sure the churches (including all 4 of the Catholic archdiocese) will go into overdrive pushing the ban. But a lot of MA Catholics don't follow everything their Archbishop and the Pope tells them to do.

Of course they don't.

For that matter they don't in Colombia, which is even more Catholic than Massachusetts.