The next stage in New York's marriage fight

Though lesbian and gay New Yorkers were dealt a setback in the New York Court of Appeals on Thursday, the fight for marriage equality is far from over.

The court delivered a disappointing 4–2 decision holding that the New York State constitution is not violated by denying same-sex couples access to civil marriage, a decision that will join Bowers v. Hardwick in the history books as a sad instance of a court ignoring its obligation to uphold the rights of a minority—a decision we can expect the court itself to regret.

The lead opinion, written by Judge Robert Smith, relied on unsupported arguments about the importance of marriage for heterosexual couples and their children while disregarding the importance of marriage to same-sex couples and the thousands of children they raise in New York state. In an ironic twist on an old stereotype, the opinion theorized that it is rational to channel only heterosexuals into marriage since they have “all too often casual or temporary” relationships in which they conceive children by “accident or impulse”—children who then need the stability of having their parents marry. According to the opinion, this was in contrast to lesbian and gay couples, who do not become parents by “impulse” but rather through the careful planning involved in adoption and assisted reproduction methods. Their children thus can count on a more stable family setting and are in less need of married parents.

Judge Smith also relied on “intuition and experience” for the proposition 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.” Children whose parents do not conform to this view of appropriate “man” and “woman” “living models,” according to the opinion, legitimately can be denied the protections that come from giving their parents access to marriage. Even the defendants in the case did not advance such an argument, which, whatever a judge’s “intuition” may suggest, is contrary to what the American Academy of Pediatrics and other leading child-welfare experts have concluded on the subject.

The decision should be viewed as out of step with the reality and dignity of lesbian and gay families and the clear direction in which our society is headed. In the words of the dissent by chief judge Kaye, “future generations will look back on today’s decision as an unfortunate misstep.” Her stirring opinion, joined by judge Ciparick, adopts exactly the legal analysis and arguments that the lesbian and gay plaintiffs advocated. If only it had been the majority opinion.

While this ruling is a blow, we have much to make us feel hopeful and motivated to continue our work for marriage equality here in New York and elsewhere. We have seen tremendous progress in this state in the past two and a half years since we started the Hernandez v. Robles litigation [one of the four cases the court ruled on jointly]. Though it will not happen overnight, we are now poised as we never were before to win the right in the state legislature for same-sex couples to marry.

Public opinion has clearly shifted in our favor over the past several years, with statewide polls now showing 53% of New Yorkers supporting marriage equality and only 38% opposed. The five committed couples who were plaintiffs in our case have received a tremendous amount of favorable public and media attention. They have been wonderful spokespeople, along with many other lesbian and gay New Yorkers who have been trained and energized to engage others in the state. Key public officials, including Attorney General Elliot Spitzer—front-runner to win the governor’s seat in November—and New York City mayor Michael Bloomberg, have come out firmly in support of marriage rights and have vowed to help see marriage legislation passed in Albany. Major New York labor union leaders, hundreds of clergy, and organizations like the NAACP Legal Defense and Education Fund have lined up in support of civil-marriage rights. Our statewide LGBT lobbying and grassroots political organization, the Empire State Pride Agenda, is leading the way and working hard to win in the legislature the right to marry. It has effective plans already underway to make this happen. We will continue to work with Pride Agenda and others in a statewide coalition to take our fight to Albany.

A marriage victory would have been wonderfully sweet, but we should focus now on the unique opportunity in New York to use the momentum that has built over the past years to push for a victory in the legislature. It is well within our reach. We can and will win marriage equality through our democratically elected legislators. We have come far along the road to full citizenship in this state.