ALBANY, N.Y. – The court that could ultimately decide whether same-sex marriages are legal in New York may be dominated by Gov. George Pataki's nominees, but that may not give him much comfort.
The Court of Appeals' two most significant rulings in the last 18 months were both major defeats for Pataki, a moderate Republican who is adamantly opposed to gay marriage.
It effectively invalidated the death penalty, which Pataki promised to reinstate when he beat Democratic incumbent Mario Cuomo (search) in 1994. And it ordered the state to pour billions of dollars more into New York City schools.
"It's difficult to handicap the court," said Larry Moss, an expert on New York marriage law. "The result is unpredictable and anyone who tries to tell you that they know what the Court of Appeals is going to do is not being very helpful."
The court's next potential flashpoint in this largely Democratic state could be gay marriage — an issue that might arrive at the courthouse steps from two directions.
New York City lawyers will ask the Court of Appeals to take a direct appeal of a state Supreme Court ruling last week that said five same-sex couples can marry in New York City.
If the court accepts, the case will skip the midlevel Appellate Division of state Supreme Court, speeding a final ruling by several months.
Chief Court of Appeals' Judge Judith Kaye declined this week to say if the court will take the case right away. The court is also being asked to do the same thing in an Albany case in which same-sex marriages were ruled illegal.
"I expect someday the issue will come to us, whether in this case or another case," Kaye said.
Over the last 25 years, the court has ruled favorably on other issues involving homosexuals' rights. In 1980, it decriminalized acts among consenting adults formerly defined as sodomy. Fifteen years later, it decided that the domestic partner of a parent — even if gay — could legally become an adoptive parent of their partner's child.
And in 1998, the court said the life partner of the occupant of a rent-controlled apartment in New York City could continue to hold that dwelling because he or she had a long-term relationship "characterized by an emotional and financial commitment."
"New York does by now have a very substantial track record of recognizing same-sex relationships," said Jay Weiner, lead author of a 2001 New York City Bar Association (search) report that concluded same-sex marriages in the state are legal.
The current court has three holdovers picked by the liberal Cuomo, including Kaye, and four justices selected by Pataki. All were confirmed by the Republican-controlled state Senate. The three Cuomo selections are seen as comprising a liberal-to-moderate bloc, while the four Pataki judges swing in the moderate-conservative direction.
Pataki denies using a litmus test, such as a prospective judge's stance on capital punishment, to select members for the court's 14-year terms. The governor has said he picks judges he believes will employ "common sense" when interpreting the law and not look to thwart criminal convictions on technicalities.
The court under Pataki has continued a tradition that began in the 1970s of interpreting New York's constitution more broadly than the U.S. Supreme Court does the federal Constitution.
That has given New Yorkers somewhat freer civil liberties, more protections against police searches and other freedoms than the U.S. Supreme Court has recognized.
While the U.S. Supreme Court will be "very slow" to recognize same-sex marriages, Moss predicted moderate state courts such as New York's will begin "acknowledging that marriage is a fundamental right" and that excluding same-sex couples violates their constitutional guarantees.
That's the hope of Susan Sommer, a lawyer for Lambda Legal Defense Fund (search), a pro-gay rights group.
"The federal Constitution is the floor, but New York has long cherished constitutional rights and individual liberties," she said. "This is one of the leading high courts in the country and a court that has been very protective of individual liberties and constitutional rights."
Those on the other side of the gay marriage issue also hope the appeals court rules on their side.
State Sen. Serphin Maltese, a former chairman of the state Conservative Party, said he hopes the court will recognize that it's up to the Legislature and the governor to define marriage, not the courts.
The Rev. Duane Motley, head of the conservative Christian group New Yorkers for Constitutional Freedoms (search), said that unless the court is willing to stretch the state constitution "like a rubber band," it must rule that homosexuals and lesbians cannot legally wed in New York.