New York Appeals Court Won't Allow Gay Marriage

ALBANY, N.Y. – New York's highest court ruled Thursday that gay marriage is not allowed under state law, rejecting arguments by same-sex couples who said the law violates their constitutional rights.

The Court of Appeals in a 4-2 decision said New York's marriage law is constitutional and clearly limits marriage to between a man and a woman. Any change in the law should come from the state Legislature, Judge Robert Smith wrote.

"We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives," Smith wrote.

The New York ruling is part of an evolving mosaic on the volatile issue nationwide.

High courts in Washington state and New Jersey are deliberating cases in which same-sex couples argue they have the right to marry. A handful of other states have cases moving through lower courts.

But 45 states have specifically barred same-sex marriage through statutes or constitutional amendments. Massachusetts is the only state that allows gay marriage, although Vermont and Connecticut allow same-sex civil unions that confer the same legal rights as heterosexual married couples.

The New York decision said lawmakers have a legitimate interest in protecting children by limiting marriage to heterosexual couples and that the law does not deny homosexual couples any "fundamental right" since same-sex marriages are not "deeply rooted in the nation's history and tradition."

"It's a sad day for New York families," said plaintiff Kathy Burke of Schenectady. "My family deserves the same protections as my next door neighbors."

Burke and her partner of seven years, Tonja Alvis, are raising her 11-year-old son.

Gov. George Pataki's health department and state Attorney General Eliot Spitzer's office had argued New York law prohibits issuing licenses to same-sex couples. The state had prevailed in lower appeals courts.

"I am satisfied that today's decision by the state's highest court to uphold our position that marriage is between a man and a woman is the right one," Pataki, a Republican, said in a statement. "I am also pleased that the court has reaffirmed that the Legislature is the appropriate branch of government to initiate and make any changes to existing law governing marriage."

The judges declined to follow the lead of high court judges in neighboring Massachusetts, who ruled that same-sex couples in that state have the same right to wed as straight couples.

The four cases decided Thursday were filed two years ago when the Massachusetts decision helped usher in a spate of gay marriage controversies from Boston to San Francisco. In New York, the mayor of the Hudson Valley village of New Paltz married about two dozen gay couples in February 2004.

With little hope of getting a gay marriage bill signed into law in Albany, advocates from the ACLU, Lambda Legal and other advocacy groups marshaled forces for a court fight. Forty-four couples acted as plaintiffs in the suits, including the brother of comedian Rosie O'Donnell — Assemblyman Daniel O'Donnell — and his longtime partner.

Plaintiff Regina Cicchetti said she was "devastated" by the ruling. But the Port Jervis resident said she and her partner of 36 years, Susan Zimmer, would fight on, probably by lobbying the Legislature for a change in the law.

"We haven't given up," she said. "We're in this for the long haul. If we can't get it done for us, we'll get it done for the people behind us."

In a dissent, Chief Judge Judith Kaye said the court failed to uphold its responsibility to correct inequalities when it decided to simply leave the issue to lawmakers. She noted that a number of bills allowing same-sex marriage have been introduced in the Legislature over the past several years, but none has ever made it out of committee.

"This state has a proud tradition of affording equal rights to all New Yorkers. Sadly, the court today retreats from that proud tradition," she wrote. "I am confident that future generations will look back on today's decision as an unfortunate misstep."

Attorney Roberta Kaplan, who argued on behalf of 13 couples in one of the cases, said the court's decision leaves her clients with nowhere to go but the Legislature.

Alan Van Capelle, executive director of Empire State Pride Agenda, a gay rights group, said his organization would immediately begin a campaign to press Albany to pass a gay marriage bill in 2007.

Spitzer, a Democrat leading in recent polls in the governor's race, has said he favors legalizing gay marriage.

Judge Albert Rosenblatt, whose daughter has advocated for same-sex couples in California, did not take part in the decision.