They Did It for the Kids: High Court Nixes Gay Nups


The state’s highest court ruled today that gays and lesbians have no constitutional right to marry in New York.

In a 4-2 decision authored by Judge Robert S. Smith, the Court of Appeals kicked the question back to the legislature.

“Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that that limitation is valid under the New York Due Process and Equal Protection Clause, and that any expansion of the traditional definition of marriage should come from the legislature,” Smith wrote.

That basis, he wrote, might have been a preference in the legislature to see children raised by heterosexual couples. “Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like,” Smith wrote.

The opinion appears to have come with some mixed feelings for the concurring judges. Near the end of Smith’s 17-page decision comes a disclaimer: “We emphasize once again that we are deciding the constitutional question. It is not for us to say whether same-sex marriage is right or wrong. . . . [A]nd we know, of course, that there are very powerful emotions on both sides of the question.”

Judges Susan Phillips Read, George Bundy Smith, and Victoria A. Graffeo joined Smith’s majority opinion, though Graffeo submitted a separate legal interpretation.

Chief Judge Judith S. Kaye penned a sharp dissent, blasting the notion that kids automatically benefit from heterosexual marriage.

“Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage–purportedly to encourage other people to procreate,” Kaye wrote in her dissent, joined by Judge Carmen Beauchamp Ciparick.

“I am confident that future generations will look back on today’s decision as an unfortunate misstep,” the chief judge wrote.

The spotlight now shifts from the courts to the state legislature and to openly gay state senator Tom Duane and assemblymembers Deborah J. Glick and Daniel J. O’Donnell.

Still, the legislative route promises to be long and hard, and it could take years, even decades, to see action from Albany on same-sex marriage.


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