New York's highest court rejects marriage equality

After New York's highest court rejected marriage equality Thursday morning, advocates for same-sex marriage called upon the state legislature to pass a law granting the right to marry to gay and lesbian couples. Calling the court of appeals' 4-2 decision to uphold the state's ban on same-sex marriage "sad," attorneys, gay-rights activists, political leaders, and some of the 44 plaintiff couples in the four cases before the court said that marriage equality is now up to legislators in Albany, the state capital, to provide.

"The court made it clear that it is up to the state legislature to address the inequality in our marriage law," New York city council speaker Christine Quinn, who is gay, said in a statement. "It is time now for Albany to act, and to act quickly, to provide equal protection for all New Yorkers. I call on state lawmakers to put civil rights before politics. Together with other elected officials and the LGBT community, I will lobby the assembly, the senate, and the governor to ensure our laws treat all people equally."

Mayor Bloomberg, who appealed a lower-court ruling in favor of marriage equality but has since said he would work to change state law to allow same-sex marriage, also addressed the court of appeals' decision at a press conference today. "I will endorse a campaign to change the law," Bloomberg said. "But the court’s decision today just reaffirmed what the lawyers for both the state and the city have long believed was the existing law. The courts said it’s not unconstitutional to have a law that determines who can marry who. And so now what we have to do, if you believe that marriage should be between people if they want to do it, you go to the legislature. And I’ve said I would do that."

He added that he's "talked to some people in the gay community that want to get the laws changed, and we've started to work on a strategy, but it will eventually mean trying to convince the people in the legislature that they should change the law."

In its decision, the court of appeals ruled that gays and lesbians do not have the right to marry under current state law, and that to deny them civil marriage licenses is not a violation of their constitutional rights to due process and equal protection. "Whether such marriages should be recognized is a question to be addressed by the legislature," Judge Robert S. Smith wrote for the majority.

However, he stated that there are "at least two grounds that rationally support the limitation on marriage that the legislature has enacted" through current state law: that "it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships," largely because of procreation, and that "it is better, other things being equal, for children to grow up with both a mother and a father."

Both grounds were dismissed by James Esseks, litigation director of the ACLU Lesbian Gay Bisexual Transgender Project, at a midday press conference in Manhattan, in particular the judge's reasoning that legislators might think children do better with a mom and dad. "That may well be a cultural assumption that many of us, perhaps all of us, carry to some degree," said Esseks, who was one of several attorneys involved in the four different cases that were joined together as one omnibus case.

"But the high court in Arkansas came to precisely the opposite conclusion," he said, referring to a recent ruling by that state's supreme court that struck down a ban on gay foster parents. "It said that there is no shred of factual or scientific evidence to back up those claims. It's just not true that kids do better or worse with gay people or straight people. So what we have here is the highest court in the state of New York [making] a decision today that is decades behind Arkansas—and who would've thunk that?"

Susan Sommer, senior counsel at Lambda Legal, highlighted a line in the dissenting opinion written by Chief Judge Judith S. Kaye, who asserted that she is "confident that future generations will look back on today's decision as an unfortunate misstep." "Well, our next step is clear," Sommer said, "and that is to go to the New York state legislature and ask the elected officials who are here to represent all New Yorkers to do what's right—to do what's good for these families and the whole state of New York."

She added that, except for Pennsylvania, "every border jurisdiction—Ontario, Quebec, Massachusetts, Vermont, Connecticut, New Jersey—offer comprehensive legal statewide, jurisdiction-wide protections, ranging from the right to marry to civil unions to comprehensive domestic partnership. New York does not. We are woefully behind the times."

Alan Van Capelle, executive director of gay-rights group Empire State Pride Agenda, pledged to have marriage equality brought for a vote in the state legislature in 2007. "It took 31 years to pass a sexual-orientation nondiscrimination act—31 years for New York state to say that it was wrong to fire someone from their job, kick them out of their house, or deny them credit because of their sexual orientation," he said. "I promise the couples up here today it will not take 31 years to win marriage in the state of New York."

He added, "If the Teamsters on Long Island"—which recently came out in support of same-sex marriage—"can recognize marriage equality, then certainly the legislators in Albany can recognize marriage equality."

As for the plaintiffs themselves, they were disappointed with the court's ruling. "We're just asking the state of New York to acknowledge our relationship and protect us," said Cindy Bink, standing next to her partner of 18 years, Ann Pachner. (The Advocate)