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A New York Appellate Division, 1st Department, panel voiced skepticism during oral arguments Tuesday about the February state Supreme Court decision that ruled it unconstitutional for New York City to deny same-sex couples the right to marry. The five-judge panel repeatedly suggested that no fundamental right to same-sex marriage exists and that the question of whether to allow gay marriage is better suited to the Legislature than the courts. The city, represented by Chief Assistant Corporation Counsel Leonard Koerner, appealed Manhattan Justice Doris Ling-Cohan’s decision in Hernandez v. Robles, 103434/2004. Susan Sommer of Lambda Legal defended the ruling. Koerner presented first, though Justice David B. Saxe interrupted him immediately. “I’m sure we all have a lot of questions,” Saxe said. One such question came from Justice George D. Marlow, who asked Koerner how society would benefit from denying same-sex couples the right to marry. “That is not the properly posed question,” Koerner answered. The state simply needed a rational basis for the law, Koerner said. He suggested that the rational basis is that “you want to encourage stability in opposite-sex relationships because of their procreative nature.” Koerner spent much of his allotted time distinguishing Hernandez from Loving v. Commonwealth of Virginia, 388 US 1, the U.S. Supreme Court ruling that overturned Virginia’s anti-miscegenation laws and Lawrence v. Texas, 539 US 558, in which the Supreme Court overturned Texas’s ban on same-sex sodomy. The proper precedent, he argued, is Baker v. Nelson, 409 US 810, in which the Supreme Court dismissed an appeal of a decision that, “for want of a substantial federal question,” sustained the denial of a marriage license to two men. “ Baker is not just a decision out of Minnesota,” Koerner said. “it is a controlling decision.” Koerner called the plaintiffs position “understandable and admirable,” but also an “attempt to recast the definition” of marriage. The plaintiffs attorney, Sommer, was only a sentence or two into her prepared presentation before Justice Milton L. Williams cut her off. “Is this best left to the Legislature?” asked Williams, a question he would later repeat two more times. “Articulate on that, counselor. Why should the judicial branch step in?” Sommer began to answer that courts have a duty to enforce fundamental rights when she was interrupted again, this time by Justice James M. Catterson, her greatest skeptic on the panel. He asked which fundamental right was at stake. “The right to marry the person of your choice,” Sommer answered. Catterson asked Sommer to cite precedent supporting such a right. When she failed to list any federal decisions, Justices Marlow and John W. Sweeny Jr. joined in, grilling her about the lack of federal precedent. The panel appeared most troubled by the comparison of laws prohibiting same-sex marriage to ones banning interracial marriage, an analogy made in Lambda’s brief, Justice Ling-Cohan’s decision and many of the nine amicus briefs submitted in support of the decision. “Is it your view that this rises to the same level of constitutional affront as anti-miscegenation laws?” Catterson asked Sommer. Sommer dodged the question, answering that anti-miscegenation laws, banned by Loving in 1967, “teach a lesson this generation should heed.” Catterson agreed, but said the lesson is that “racial discrimination is abhorrent,” an implicit rejection of the oft-used racial analogy. Toward the end of Sommer’s time, Williams asked for the third time whether the same-sex marriage issue should be addressed by legislation. “It would be wonderful,” Sommer said. “But that’s not going to happen tomorrow.” In a press conference on the courthouse steps following the arguments, Sommer said that the judges’ statements during oral arguments do not dictate their eventual votes. She did, however, acknowledge that the panel appeared unconvinced. “This is just one stop on the road to equality,” she said. Koerner was equally circumspect. “[The panel's] job is to ask questions,” he said yesterday afternoon. “You don’t know what they’re going to do.” Ling-Cohan has stayed the effect of her decision while it is appealed.

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