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ALBANY, N.Y. � The state of New York conceded Monday that it has no compelling interest in preventing same-sex marriages, relying instead on a rational basis claim in attempting to preserve its historic ban on gay nuptials. In 90 minutes of arguments before the Appellate Division, Third Department, the state abandoned one of its two major defenses and struggled to sell the other. Deputy Solicitor General Peter Schiff told the justices that while there is no compelling state interest in banning homosexual marriage, the state’s prohibition survives a rational basis test on the strength of its historic commitment to providing a stable environment for children. The state argued it was up to the Legislature to determine whether same-sex marriages should be legalized. Schiff did not claim that gay or lesbian parents would necessarily preside over an unstable environment, arguing instead that New York’s preference for opposite-sex marriages is based on the rationally pragmatic interest in encouraging childbirth within the confines of marriage. “We are concerned that the opposite-sex marriages will promote a stable environment,” he told the court. “Well, what does that have to do with it?” asked Judge Anthony Carpinello, a question asked in various forms by several judges. Schiff attempted to explain that with the possibility of accidental procreation, the state has an interest in promoting marriage so children will hopefully be born in physically and emotionally stable settings. But that argument appeared to trouble the court, especially since there is no possibility of accidental procreation in a homosexual relationship. “That is a little bit of a stretch, wouldn’t you say?” responded Presiding Justice Anthony Cardona. The Third Department Monday heard three cases in succession challenging New York’s refusal to recognize same-sex marriages � Samuels v. Department of Health, 98084, Kane v. Marsolais, 98151, and Seymour v. Holcomb, 98204. In each case, the trial court had held for the state and in each case the same-sex couples � roughly 76 people in all � insisted that the ban cannot withstand state constitutional scrutiny. The plaintiffs argue that New York’s refusal to recognize same-sex marriages violates the equal protection, due process and free speech provisions of the state Constitution. The free speech argument rests on the theory that marriage is a form of communicating to the outside world a couple’s commitment, and that gay couples are denied that method of speech. The main case, Samuels, involves 13 same-sex couples representing broad geographic, ethnic, religious and economic diversity. Among the plaintiffs are an interracial couple; the first openly gay member of the state Assembly, Daniel O’Donnell, D-Manhattan; a New York City police officer, Alice Muniz, assigned to the 23rd Precinct in Spanish Harlem; a seriously ill woman seeking to ensure that her longtime partner has all the rights and access of a spouse if and when her health takes a turn for the worse; people with children or preparing for the birth of a child; and couples that have been together for as few as four years and as many as 40. All the plaintiffs allege injuries in the form of tangible hardships related to the state’s denial of marriage rights. “This is not a case about abstract principle,” plaintiffs counsel Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan, told the court. “This is a case about real people . . . leading real lives and deprived of a benefit by the state of New York.” Immediately, the court focused on the core issue when Justice Cardona asked Kaplan if the right to marry the person of one’s choosing is a “fundamental right,” the same point stressed last month by the First Department in Hernandez v. Robles. Hernandez is an appeal of the first decision in the state, by Manhattan Supreme Court Justice Doris Ling-Cohan, to declare the same-sex marriage ban unconstitutional. Kaplan unwaveringly said the right to marry is a fundamental right, worthy of every constitutional protection. “So it is your position that there is a fundamental right to marry someone of the same sex?” asked Justice Thomas Mercure. Kaplan said that is precisely her position. RATIONAL BASIS THEORY Schiff advanced two main arguments to support his rational basis theory: tradition and uniformity. He said New York has a tradition of defining marriage as a union between a man and a woman, and an interest in maintaining unity with virtually every other state. “I don’t think I can tell you a compelling interest,” Schiff offered early in his argument. “But I can tell you a rational basis.” That prompted a surprise reaction from Justice Carpinello. “You concede the state has no compelling interest?” Justice Carpinello pressed. Schiff admitted he was conceding that point. “Well, assuming the standard is rational basis, what is the rational basis?” demanded Justice Mercure. Schiff repeated that when there is a possibility of procreation, the state has an interest in channeling relationships toward marriage. That identical argument prevailed in Seymour v. Holcomb, a Tompkins County case where Justice Robert Mulvey held that the exclusion of same-sex couples from marriage is rationally related to the state’s interest in procreation and child-rearing. But the Third Department judges seemed to struggle with that concept, repeatedly asking Schiff to explain the relationship between same-sex marriage and the state’s interest in children, and never seeming satisfied with the answer. Samuels is an appeal of a decision by Albany Supreme Court Justice Joseph Teresi, who in December upheld the state’s definition of marriage as a union between a man and a woman. Kane v. Marsolais was decided in January, just a few weeks after Samuels, and the court came to a similar conclusion. That case involved two women who have been together for seven years and have a child, and two men in their 60s who have been together for 27 years. Both sets of couples were married in a Unitarian Church and then sought the requisite marriage license from the Albany city clerk. They were denied licenses, and then unsuccessfully challenged those denials in an action before Supreme Court Justice E. Michael Kavanagh. “These are family units we are talking about,” plaintiffs counsel Terence Kindlon of Kindlon & Shanks in Albany argued Monday. “They are married in their hearts. They were married in their church.” Kindlon said the fact that New York “refuses to recognize the reality of their relationship” is itself irrational, and more than enough to overcome any rational basis argument. “This is a law whose time has passed,” Kindlon said. John Caher is a reporter with the New York Law Journal, a Recorder affiliate.

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