Wednesday, July 12, 2006

Courts serve double defeat to marriage equality

Courts serve double defeat to marriage equality
By Louis Weisberg
Copyright by The Chicago Free Press

On July 6, courts in New York and Georgia dealt two stunning blows to the struggle for marriage equality in the United States.

The Georgia Supreme Court reinstated a constitutional ban on same-sex marriage. Although 76 percent of the state’s voters approved the ban in 2004, a lower court judge had dismissed it, saying it violated the state’s single-subject rule for ballot measures by lumping together marriage and civil unions—separate issues about which people had different opinions, she said.

But Georgia’s highest court unanimously overturned that ruling, agreeing with the state’s argument that voters knew what they were doing when they approved the ban.

The New York Court of Appeals’ 4-2 decision to uphold a law prohibiting same-sex couples from marriage in that state was more surprising and potentially more devastating than the Georgia ruling. It closed the books on Hernandez v. Robles, an eagerly anticipated case that combined separate lawsuits filed by Lambda Legal, the ACLU and cooperating attorneys seeking marriage rights for 44 gay and lesbian couples.

In a decision that was attacked as bizarre by editorialists around the nation, Judge Robert S. Smith said it was not up to the court to decide whether same-sex marriage was right or wrong but rather to determine whether the New York Legislature had a rational and non-discriminatory basis for enacting a ban against it. He ruled the ban was justified because heterosexual couples can accidentally conceive children and the state has an overriding obligation to ensure the welfare of those children by encouraging laws allowing them to be reared in stable households.

“The legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples,” Smith wrote. “These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more.”

In a scathing dissenting opinion, Chief Judge Judith Kaye wrote, “No one rationally decides to have children because gays and lesbians are excluded from marriage.”

In his opinion, Smith also dismissed the assertion that the marriage ban is discriminatory, saying it prevents heterosexuals as well as homosexuals from marrying members of the same sex.

But Smith stopped short of saying the state should not or could not allow same-sex marriage, only that the constitution does not require the state to allow it. “We express our hope that the participants in the controversy over same-sex marriage will address their arguments to the legislature,” Smith wrote.

After the ruling, Susan Sommer, the lead attorney for the plaintiffs and senior counsel at Lambda Legal Defense and Education Fund, vowed that she and other proponents will immediately try to persuade the state legislature to change the definition of marriage.

“The question for the legislature is an easy one: whether to follow through on the support of the majority of voters in this state to end discrimination against their gay friends and neighbors,” Sommer said. Recent polls show 53 percent of New Yorkers support marriage for same-sex couples.

New York Mayor Michael Bloomberg and state attorney general Eliot Spitzer, a Democratic gubernatorial candidate, have vowed to work with the legislature to enact a law allowing marriage rights for gays and lesbians. However, both of them lobbied the court to find that the state law prohibiting gay marriage was constitutional.

New York’s outgoing Republican Gov. George E. Pataki, who appointed Smith to the bench, said he will veto any legislation that would allow same-sex marriages. He praised the court for preserving “what has been the law of this state for over 200 years.”

Reaction to the ruling

“It’s amazing to be involved in a civil rights case that is so personal and be completely relegated to a position of feeling like a second-class citizen. You want to feel you’re on the same playing field and I am not. That’s been told to me today.”

—Daniel Hernandez, a real estate developer in Manhattan. He and his partner of seven years Nevin Cohen, a college professor, were litigants in the case.

“As Democrats, we believe that every American has a right to equal protection under the law and to live in dignity. Today’s decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal.”

—Howard Dean, chair of the Democratic National Committee

“Today’s tortured and intellectually strained decision is beyond disappointing. It is insulting to gay and lesbian people and our families. It is an egregious departure from the New York Court of Appeal’s long and proud tradition of advancing liberty and dismantling discrimination. It is a disgrace to the constitution and the people of New York.”

—Matt Foreman, executive director National Gay and Lesbian Task Force

“Our children don’t understand why their parents can’t get married.”

—Lauren Abrams, a plaintiff in Hernandez v. Robles with her partner Donna Freeman-Tweed


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