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Same-sex couples have no right to marry under the New York state Constitution, the Court of Appeals has ruled. The 4-2 decision, which upheld four Appellate Division decisions that had declined to extend the right to marry to same-sex couples, marks the end of the judicial battle in New York over gay marriage. Because the appellants raised no federal issues, they cannot appeal to the U.S. Supreme Court. The ruling comes as California’s First District Court of Appeal prepares to hear oral arguments early next week on an appeal relating to the state’s laws banning same-sex marriage. An opinion written by Judge Robert Smith in New York centered on whether a rational basis existed for the Legislature’s decision to limit marriage to opposite-sex couples when it enacted the Domestic Relations Law in 1909, and whether same-sex marriage � as opposed to simply marriage itself � constitutes a fundamental right. “The critical question is whether a rational legislature could decide that [the benefits of marriage] should be given to members of opposite-sex couples, but not same-sex couples,” Judge Smith stated in the combined decision for Hernandez v. Robles, 86, Samuels v. NYS Dept. of Health, 87, Kane v. Marsolais, 88, and Seymour v. Holcomb, 89. “We conclude � that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted � First, 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. [Secondly, 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.” Such rational grounds were sufficient to uphold the Appellate Division decisions, as the plaintiffs failed to establish grounds for a heightened level of scrutiny, such as a fundamental right under the state Constitution to same-sex marriage, the majority concluded. The U.S. Supreme Court has defined a fundamental right as “one that is ‘deeply rooted in this Nation’s history and tradition,’” Judge Smith noted. “The right to marry someone of the same sex, however, is not ‘deeply rooted’; it has not even been asserted until relatively recent times.” Judge Smith dismissed comparisons between prohibiting same-sex couples from marrying with laws banning interracial marriage. “It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago. But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind,” Judge Smith wrote. “The idea that same-sex marriage is even possible is a relatively new one. 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.” Judge Smith was joined in his opinion by Judge George Bundy Smith, who during oral arguments clearly favored sending the issue to the Legislature, and Judge Susan Phillips Read. Judge Victoria Graffeo concurred in the result but wrote a separate opinion elaborating on the standard of review. IMPASSIONED DISSENT Chief Judge Judith Kaye wrote an impassioned, 27-page dissent, which was joined by Judge Carmen Beauchamp Ciparick. Many attorneys following the case felt that Chief Judge Kaye, whose term expires in March, might have viewed a majority opinion in support of the plaintiffs as a chance to add to her legacy before leaving office. “For most of us, leading a full life includes establishing a family,” Chief Judge Kaye wrote. “Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage. Solely because of their sexual orientation, however � that is, because of who they love � plaintiffs are denied the rights and responsibilities of civil marriage. This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.” Judge Kaye found both a fundamental right at issue and a lack of a rational basis for the deprivation of marriage licenses to same-sex couples. The Chief Judge called the majority’s definition of the fundamental right at issue � “same-sex marriage” � too narrow. “Simply put, fundamental rights are fundamental rights,” Judge Kaye wrote. “They are not defined in terms of who is entitled to exercise them.” The dissent repeatedly compared the case to Loving v. Virginia, 388 US 1, the U.S. Supreme Court decision that ruled laws against interracial marriage were unconstitutional. The “Supreme Court has repeatedly held that the fundamental right to marry must be afforded even to those who have previously been excluded from its scope � that is, to those whose exclusion from the right was ‘deeply rooted,’” Judge Kaye wrote. “Well into the twentieth century, the sheer weight of precedent accepting the constitutionality of bans on interracial marriage was deemed sufficient justification in and of itself to perpetuate these discriminatory laws � much as defendants now contend that same-sex couples should be prohibited from marrying because historically they always have been.” “Just 10 years before Loving declared unconstitutional state laws banning marriage between persons of different races, 96 percent of Americans were opposed to interracial marriage � Sadly, many of the arguments then raised in support of the anti-miscegenation laws were identical to those made today in opposition to same-sex marriage.” SUBDUED RESPONSE While many state legislators and political candidates used the occasion of the defeat of the gay-marriage efforts to issue passionate press releases for or against legislative action, the respondents, including New York City, were subdued in victory. A spokeswoman from Corporation Counsel called the mood in the city’s legal office “somber.” Chief Assistant Corporation Counsel Leonard Koerner said of the lawyers in his office who worked on the case, “I think they believe that the proper conclusion was reached based on the case law.” However Koerner, who successfully argued Hernandez before both the First Department and the Court of Appeals, added, “But as we noted in our brief and our argument, we did not in any way oppose the plaintiffs’ goal. We just felt that the appropriate place was the Legislature, not the court system.” Noting that procreation was “one of the main reasons for establishing marriage as an institution,” Koerner reiterated that the Legislature specifically, and rationally, intended for marriage to be “more solemnized so that people take it more seriously.” The attorneys for the appellants were less restrained. Roberta Kaplan, the Paul, Weiss, Rifkind, Wharton & Garrison partner who served as lead counsel in Samuels, criticized, among other things, the emphasis placed on procreation by Judge Smith, her former Paul Weiss colleague. “Under precedent which this Court doesn’t overrule, a person who is locked up in prison for life has a fundamental right to marry,” Kaplan said yesterday by phone. “That person isn’t procreating with anyone. And what’s so offensive about the ruling today is that [prisoners have] a fundamental right to marry and my clients don’t.” Along with Lambda Legal, Jeffrey Trachtman and Norman Simon of Kramer Levin Naftalis & Frankel served as counsel for the plaintiffs in Hernandez. Trachtman called the decision “regrettable on two levels.” “The burden on our clients doesn’t further” the state’s interest in procreation, he said. “And beyond that, many of our clients are raising children. If your concern is really protecting children, you’d want to give our clients the same benefits and protections and responsibilities.” Trachtman compared Judge Kaye’s opinion to Justice Harry Blackmun’s “touchstone” dissent in Bowers v. Hardwick. “Great dissents have a very powerful role in our history,” Trachtman said. “She will be remembered for having the correct position before the rest of the court was ready to support her.” In Bowers, 478 U.S. 186 (1986), the Supreme Court affirmed the constitutionality of a Georgia sodomy law criminalizing consensual sexual activity by gay men in the privacy of their own homes. That decision was overruled 17 years later in Lawrence v. Texas, 539 U.S. 558 (2003). Mark Fass is a reporter with the New York Law Journal, a Recorder affiliate.

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