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Two gay couples are seeking ratification of what they say are lifetime commitments in a suit asking that they be declared married. The Albany County Supreme Court petition of Elissa Kane and Lynne Lekakis and Robert Barnes and George Jurgsatis is similar to others in which same-sex couples are seeking the legal right to marry. But it differs in that it is apparently the first involving couples who are already “married.” Thursday, Albany attorneys Terence L. Kindlon and Kathy Manley presented their ceremonially wedded clients at a press conference on the steps of the Court of Appeals — where the issue will almost surely arrive at some point — and within view of the State Capitol, where it is under legislative consideration. Various proposals are pending in the Legislature, one of which would specifically block gay marriages and others that would either recognize them or grant homosexuals equal rights through civil unions. Several suits have been filed, generally by plaintiffs invoking equal protection arguments and claiming that New York’s Domestic Relations Law is already gender neutral. The lawsuit filed late Wednesday in Albany County is an Article 78 proceeding which seeks to compel the state Department of Health to permit the Albany City clerk to issue marriage licenses to the two couples. Both couples were joined March 27 in Albany by Unitarian Universalist Minister Sam Trumbore. Whether those ceremonies created legal marriages is an issue raised in their lawsuit. It relies in part on a provision in the Domestic Relations Law that, Kindlon contends, recognizes ceremonial marriages regardless of whether the parties have a valid marriage license. If the courts disagree and find that Domestic Relations Law does not recognize such unions, then it should be stricken as unconstitutional, according to the suit. Kindlon said the equal protection argument is his strongest point and the suit seeks to highlight the ways in which the couples are denied the benefits and protections afforded to heterosexual couples. For instance, it notes that even though Kane and Lekakis own their home together, they had to refinance the mortgage to add Lekakis as a tenant-in-common with survivorship rights. If they had been legally married, those rights would have been conveyed automatically. “This is the logical next step for us after our marriage in March,” Kane said. “We are very confident that this is the right way to move this forward. As with many civil rights issues, we work through the system.” Similarly, Kane and Lekakis do not qualify for a family health insurance policy and had to buy separate, more expensive policies, according to the suit. EQUAL RIGHTS Barnes and Jurgsatis, who have been together since 1978, have similar problems, the suit alleges. Both are over 60 and if either were hospitalized the companion would not be permitted to make some decisions that are routinely afforded married couples, the suit contends. Kindlon said a civil union statute — one affording same-sex couples the rights of others — would probably cure the equal protection problem but not address the human rights issue. “These folks are entitled of the same legal recognition of their marriage as any heterosexual couple, and that’s what we are asking for here,” Kindlon said. “We don’t want to get into separate but equal. That has already been tried in the field of civil rights, and it didn’t work very well.” Kindlon compared the ban on gay marriages to the ban on interracial marriages, which the U.S. Supreme Court struck down in the 1967 case of Loving v. Virginia, 388 U.S. 1. “We feel the resistance to this is based on tradition, misunderstanding and irrational fears,” Kindlon said. “There is not a rational basis for it. We are very confident that inevitably we will prevail.” Kane also indicated she would not be satisfied with civil union status, and said she should not have to settle for such a resolution. “Either we are all the same and we all have the same rights, or we don’t,” Kane said. Pending in the Legislature are bills by Assemblyman Anthony S. Seminerio, D-Queens, and Senator Serphin R. Maltese, R-Queens, that would make “a marriage or union absolutely void if contracted by two persons of the same sex.” Also pending are bills by Assemblyman Richard N. Gottfried, D-Manhattan, and Sen. Thomas Duane, D-Manhattan, that would validate marriages between same sex couples. None of the bills is likely to move this session. Advocates on both sides of the issue expect it to reach the Court of Appeals before any legislation reaches the desk of New York Gov. George E. Pataki. Pataki is opposed to legalizing same-sex marriages. New York Attorney General Eliot Spitzer, whose office will defend the state in the actions filed this week, has said that New York law does not authorize gay marriages. However, he has acknowledged that the law is ripe for an equal protection challenge.

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