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Same-sex couples have no constitutional right to marry, New York’s Appellate Division, 1st Department, ruled Thursday in the first decision by a state appeals court to address the issue. Rejecting a constitutional challenge, Justice Milton L. Williams wrote for a 4-1 majority that the state’s limitation of marriage to a “union between one man and one woman” is based upon “innate, complementary, procreative roles, a function of biology, not mere legal rights.” But in dissent, Justice David B. Saxe argued that the concept of marriage has sufficiently evolved in recent years to encompass the right to select a spouse of one’s choice, including a same-sex partner. To refuse to extend the rights attendant upon marriage to same-sex couples, Saxe wrote, is to “perpetuate a deeply ingrained form of legalized discrimination.” Susan L. Sommer, a lawyer for the Lambda Legal Defense and Education Fund, who brought the challenge on behalf of five same-sex couples, said she was “disappointed” with the ruling, but had always been aware that the question will have to be resolved by the Court of Appeals. The ruling in Hernandez v. Robles, 103434/ 04, overturned a decision issued by Manhattan Supreme Court Justice Doris Ling-Cohan in February finding that a 1909 state law limiting marriage to heterosexuals violated the state due process and equal protection rights of gays and lesbians. Ling-Cohan ordered the New York City clerk to begin issuing marriage licenses to same-sex couples, but the order was stayed by the 1st Department before it went into effect. Ling-Cohan’s ruling only applied in New York City. Other cases testing the validity of the 1909 law statewide are pending in the 2nd and 3rd Departments. The law itself does not expressly limit marriages to heterosexual couples, but its use of terms like “husband” and “wife” and “bride” and “groom” have led every judge who has reviewed the statute, including Ling-Cohan, to conclude that it does not permit same-sex marriages. Paul Linton, who filed an amicus brief for the New York State Catholic Conference, said intermediate appeals courts in Arizona and Indiana have rejected constitutional claims that marriage statutes must embrace same-sex marriages. But the challengers’ lawyer, Sommer, said two trial judges in Washington and one in California have found a constitutional right to marry for same-sex couples. The Washington rulings are pending before that state’s Supreme Court. In 2003, the issue of same-sex marriages was propelled to the center of a national debate when the Massachusetts Supreme Court recognized that gay couples have a constitutional right to marry. The issue was an important force in the 2004 presidential campaign when 11 states, including Ohio, Oregon and Michigan, passed constitutional amendments limiting marriages to heterosexual couples. This year, the California Legislature adopted a measure that would have allowed same-sex couples to marry, but Gov. Arnold Schwarzenegger vetoed it in April. Many of New York state’s top politicians have taken positions on the issue. Gov. Pataki has strongly backed limiting marriages to men and women. Attorney General Eliot Spitzer, a strong contender to run next year as the Democrats’ candidate for governor, supports same-sex marriage, but his agency has defended the law in the 3rd Department. Mayor Michael R. Bloomberg has come out in favor of legislation that would recognize same-sex marriages, but he also supported the city’s appeal of Ling-Cohan’s ruling. In a statement issued Thursday, Bloomberg said that the Court of Appeals should resolve the issue. But he added that, even if the court affirms the law, the Legislature should change it. As an indicator of the interest generated by the 1st Department case, 50 groups filed 12 amicus curiae briefs with the court. ‘USURPED’ LEGISLATURE’S ROLE In reversing, Williams had sharp words for Ling-Cohan, finding that she had strayed beyond defining legal rights into the legislative realm of setting public policy. Williams wrote that the court found it even more troubling that she had directed the city clerk to issue licenses, noting that she should have given the Legislature an opportunity to cure the constitutional defect. He noted that the Massachusetts Supreme Court had referred the issue to the Legislature after finding that state’s marriage law defective. Ling-Cohan’s ruling, he wrote, “usurped the Legislature’s mandated role to make policy decisions as to which type of family unit works best for society and therefore should be encouraged with benefits and other preferences.” In upholding the heterosexual limitation, Williams found that the state has “a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing.” Among other things, he wrote, heterosexual marriage has been established as the “cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital child bearing to sustain the population and society.” In a reference to gay groups’ press for full recognition under the nation’s marriage laws, Williams wrote, “marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society.” DISSENT SEES BASIC RIGHT In his dissent, Saxe disagreed, finding that because gays “have long been subjected to purposeful discrimination” and “shut out of the political process,” they are entitled to heightened constitutional protection. The fundamental right to marry includes the right to select the person of one’s choice as a spouse without regard to gender, Saxe wrote. The societal view of marriage has evolved to view marriage as “a partnership of equals with equal rights, who have mutually joined to form a new family unit … In the face of such a widely held view, the gender of the two partners to a marriage is no longer critical to its definition,” he wrote. Moreover, he added, technology likewise has developed to undermine the notion that biological children can only be created by sex between a man and a woman. Because of the different techniques that have been developed for conceiving children and bringing them to bear, he wrote, there is “virtually no relationship” between limiting marriages to heterosexuals and the promotion of stable homes for children. But, both Williams and Justice James M. Catterson, in a concurring opinion, found no basis for extending the fundamental right to marry to gay couples. The U.S. Supreme Court has never stated or even implied, Catterson wrote, “that the right to marry under the Constitution or federal precedent extends to same-sex couples.” “The concept of a marriage has traditionally been accepted by courts throughout the United States as the union of a man and a woman. Any change in that frequently articulated heterosexual construct,” he wrote, “would be a revolution in the law rather than evolution.” But Saxe countered, that to argue “that marriage must be limited to heterosexuals because that is what the institution has historically been, merely justified discrimination with the bare explanation it has always been that way.” Joining in the majority decision were Justices George D. Marlow and John W. Sweeny Jr. Assistant Corporation Counsels Leonard Koerner, Marilyn Richter and Ronald E. Sternberg represented New York City Clerk Victor L. Robles. Also representing the plaintiffs from Lambda were David S. Buckel and Alphonso David.

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