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ALBANY, N.Y. � An upstate appellate panel Thursday found no due process, equal protection or free speech impediment to New York’s historic treatment of marriage as a man-woman union, setting the stage for a classic constitutional battle at the Court of Appeals, probably before the end of the year. Although the plaintiffs, 13 same-sex couples seeking the right to marry, lost on every point raised � and unanimously so � they were encouraged by the sympathetic tone of Appellate Division, Third Department Justice John Lahtinen’s decision. He insinuated that under a strict scrutiny analysis the current law might be much harder to defend. He also recognized that same-sex couples can make good parents and suggested in closing that “the Legislature is where changes” of this magnitude should be addressed. Thursday’s ruling in Samuels v. New York State Department of Health, 98084, comes barely two months after the First Department reached the same conclusion in Hernandez v. Robles, 103434/04. In Hernandez, the First Department split 4-1 in finding that same-sex couples have no right to marry. Hernandez is already awaiting argument at the Court of Appeals and attorneys in Samuels said a leave application in that case will be filed immediately. The appeal tested the validity of a 1909 provision in New York’s Domestic Relations Law that limits marriage to a union between one man and one woman. Supreme Court Justice Joseph Teresi upheld the provision in December 2004, and his ruling was affirmed yesterday. Justice Lahtinen explored the issues extensively in an 18-page ruling, concluding ultimately that under a rational basis examination � which the court adopted over a far more stringent strict scrutiny test � and with the constitutional deference afforded legislative enactments, the plaintiffs cannot prevail. The court recognized that the state Constitution has at times been interpreted more broadly than its federal counterpart, but cited former Chief Judge Benjamin Cardozo in stressing that state constitutionalism should be employed to bolster and uphold the unique history and traditions of the state. Here, Justice Lahtinen said, history and tradition are squarely on the side of heterosexual marriage. He said expanding the state due process and equal protection provisions beyond the parameters of the U.S. Constitution would in this instance constitute an abuse by the state court. “The cornerstone cases acknowledging marriage as a fundamental right are laced with language referring to the ancient recognized nature of the institution, specifically tying part of its critical importance to its role in procreation and, thus, to the union of a woman and a man,” Justice Lahtinen wrote. “To remove from ‘marriage’ a definitional component of that institution (i.e., one woman, one man) which long predates the constitutions of this country and state, would, to a certain extent, extract some of the ‘deep[] root[s]‘ that support its elevation to a fundamental right.” At oral argument, Deputy Solicitor General Peter Schiff defended the statute primarily on rational basis grounds, arguing the state’s interest and historic commitment to encouraging family stability, especially for children, justifies the limitation. The Third Department essentially agreed, but it accepted for the purposes of this case a number of key observations. It assumed that barring same-sex couples from marriage does not encourage heterosexual couples to raise children. It noted that many same-sex couples raise children and have proven to be good parents. It observed modern medicine makes conception possible without sexual intercourse, and acknowledged that many same-sex couples have children. And it pointed out that adoption rights are unrelated to an applicant’s sexual orientation or marital status. “In light of these observations, if the test being employed was not rational basis, the overinclusive and underinclusive nature of this basis would create considerable problems for defendants; a fact that defendants conceded at oral argument,” Justice Lahtinen wrote. However, the test is rational basis, the court decided, and on that standard, the plaintiffs have no constitutional remedy. “The Legislature acted consistent with its constitutional role, and the parameters that it placed on marriage are undergirded by sufficient governmental interests to uphold marriage as historically understood and defined,” Justice Lahtinen wrote. “In our opinion, the Legislature is where changes to marriage of the nature urged by plaintiffs should be addressed.” NOT FINAL BATTLE Roberta Kaplan, counsel for the plaintiffs, said she will appeal immediately. “I think everybody knows the final battle here will be before the Court of Appeals and we are confident we will prevail at that court,” said Kaplan, of Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan. “Whether the legislature, as in the states of Connecticut and California, decides to pass statutes that address the rights we are fighting about, that would be a wonderful thing. But it doesn’t mean that [same-sex couples] don’t have the constitutional right that should be vindicated by the courts.” State Senator Thomas Duane, a Manhattan Democrat at the forefront of gay rights, said yesterday he is “cautiously optimistic of prevailing at the Court of Appeals. However, he said he will continue to promote legislative reform. “I think the Court of Appeals, as the final arbiter of equal protection under the New York Constitution, will say everybody has got to be treated equally,” Duane said. The senator said he does not think it likely the Legislature will act soon, partially because it is inclined to wait for the Court of Appeals to rule. “Ultimately, I think the Legislature will pass [gay] marriage, but because it is still in the courts I don’t think it will be this year,” he said. Christine Pritchard, spokeswoman for the attorney general, said yesterday that the “decision speaks for itself” and declined further comment. Attorney General Eliot Spitzer, a candidate for governor, has publicly supported gay marriage. But he also stands by the constitutional validity of the Domestic Relations Law. Kevin Quinn, a spokesman for Governor George Pataki said the ruling “reaffirms that any changes to New York’s marriage laws, which provide that marriage is between a man and a woman, should be made through the legislative process, not by the courts.” John Caher is a reporter with the New York Law Journal, a Recorder affiliate.

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