WASHINGTON (ABP) — The highest state courts in New York and Georgia dealt dual setbacks to proponents of gay marriage in July 6 rulings.
The New York Court of Appeals ruled that the state's constitution neither requires nor bans the legalization of same-sex marriage, saying the question is one for the state's legislators to decide. Later that day, the Georgia Supreme Court upheld a state constitutional amendment banning gay marriage that a lower court had invalidated on procedural grounds.
The New York decision came on a 4-2 vote. The court's opinion determined that “the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.”
In Georgia, a unanimous court said the amendment — which voters passed in 2004 by a more than 3-1 margin — had been placed on the ballot properly. Opponents of the amendment had sued the state, noting that the Georgia Constitution prohibits such ballot initiatives from dealing with more than one issue. They claimed that marriage was a substantially different issue from civil unions and that voters who opposed gay marriage but not civil unions would have been forced to vote to ban both. The court disagreed.
The decisions follow several by state high courts in recent years denying a state constitutional right to same-sex marriage.
Massachusetts became the only state to legalize same-sex marriage after its highest court ruled in 2003 that banning it violated the Massachusetts Constitution. Vermont and Connecticut offer gay couples civil unions, with benefits and responsibilities nearly identical to marriage. California, New Jersey and the District of Columbia have “domestic partnership” laws that offer marriage-like advantages to unmarried couples.
The New York decision came in four separate cases the court combined. In those, 44 same-sex couples who wished to marry sued municipal clerks who denied them marriage licenses in various parts of the state. The plaintiffs said the state's Domestic Relations Law, which deals with marriage in heterosexual-specific terms, violates the New York Constitution's equal-protection and due-process guarantees.
All of the lower courts involved had ruled against the plaintiffs, save for one trial court in New York City. Attorneys for the state and the municipalities involved defended the marriage law.
The author of the Court of Appeals' controlling three-person plurality opinion, Judge Robert Smith, said the state's Domestic Relations Law does not violate the rights of same-sex couples because the law had a rational basis beyond sheer anti-gay prejudice.
“The question is not, we emphasize, whether the Legislature must or should continue to limit marriage in this way; of course, the Legislature may…extend marriage or some or all of its benefits to same-sex couples,” Smith wrote. “We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the legislature has enacted…both of which are derived from the undisputed assumption that marriage is important to the welfare of children.”
First, Smith said, legislators may choose to provide heterosexuals with incentives to marry — such as tax advantages and inheritance and health-care rights — because heterosexual couplings are the only ones naturally inclined to produce children. Because of that, he said, “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.”
Second, Smith wrote, “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. 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 also rejected the plaintiffs' argument that the state's denial of marriage to same-sex couples is analogous to a Virginia law banning interracial marriage — a law that the federal Supreme Court overturned in its 1967 Loving v. Virginia ruling.
“…[T]he historical background of Loving is different from the history underlying this case,” Smith said. “Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil.”
But heterosexual-only marriage is not similar, Smith said: “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.”
Smith questioned whether the freedom to marry someone of one's own gender is a “fundamental right.” “The right to marry is unquestionably a fundamental right. The right to marry someone of the same sex, however, is not 'deeply rooted'; it has not even been asserted until relatively recent times.”
Finally, Smith said, the decision should be a legislative one. “The dissenters assert confidently that 'future generations' will agree with their view of this case…. 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.”
But Chief Judge Judith Kaye, in a lengthy dissenting opinion challenging virtually all of Smith's arguments, said the court should not shirk its constitutional duty simply because the state's legislators have failed to extend equal marriage rights to gays.
“[T]his court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic,” she said. “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.”
Kaye said Smith and the plurality employed circular logic in saying that the freedom to marry a partner of one's own gender was not an inherent right. “The court concludes … that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty. But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights,” she wrote.
She also said that the logic of encouraging child welfare by limiting marriage to heterosexual couples isn't consistent with the state's other laws or cultural reality.
“[W]hile encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the state, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone,” she wrote.
Excluding same-sex couples from marriage actually undermines the well-being of children, she continued. “Tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare.”
The issue is now in the hands of the state's political leaders, whom gay-rights supporters called on July 6 to pass a same-sex marriage bill. A recent poll showed that a slight majority of New Yorkers favor legalizing same-sex marriage. Bills to do so, however, have not made it out of committee during recent legislative sessions.
Two state political leaders who authorized their attorneys to defend the marriage status quo both said July 6 that they would support legislative expansion of marriage rights to gays.
State Attorney General Elliot Spitzer, whose office opposed the lawsuits, is New York's Democratic candidate for governor. He promised to support a law legalizing same-sex marriage if elected to that office.
“I believe same-sex marriage should be constitutional, should be legal, should be authorized statutorily,” he said, according to the New York Times. “I think in New York there is recognition that this is the right thing to do from a civil rights perspective.”
Spitzer's Republican opponent reportedly said he would veto any bill legalizing gay marriage, but he is far behind Spitzer in the polls.
New York City Mayor Michael Bloomberg, whose government defended its clerks' decision to deny marriage licenses to gay couples, also said July 6 that he would support legalization of gay marriage statewide.
The Times said political observers in the state doubted Spitzer or Bloomberg could get a gay marriage bill through the Republican-controlled state Senate, whose leader is opposed to gay marriage.
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