June 9, 2006

New York top court hears four cases seeking marriage

by Anthony Glassman
with wire reports

Albany, N.Y.--The state?s highest court heard arguments on May 31 in four cases seeking full marriage rights for same-sex couples.

Six judges of the New York Court of Appeals bombarded attorneys on both sides of the issue with questions. The seventh jurist recused himself from the case. While he did not give a reason, his daughter told Gay City News that it is because she was involved on the pro-gay side of similar cases in other states.

The combined cases involve 44 same-sex couples, including Rosie O?Donnell?s brother, Assemblyman Danny O?Donnell, and his partner John Banta.

Lower courts, with the exception of a New York City trial judge, have all ruled against the couples.

?We are evolving as a society, and just because we did something 200 years ago, or 100 years ago or 50 years ago, it?s not necessarily good justification to do it now,? said Terence Kindlon, one of the pro-marriage attorneys.

Peter H. Schiff, representing Attorney General Eliot Spitzer, noted, ?Our bottom line here is that if there are going to be changes, they?re going to be done by the legislature.

Leonard Koerner, representing New York City, agreed that it should be that body?s responsibility, not that of the courts, to implement same-sex marriage rights.

Judge George Bundy Smith?s questions to the plaintiffs? attorneys indicated a reticence to take that power out of the legislature?s hands.

?Why isn?t this a legislative matter?? he asked.

The justices were told that it was their duty to protect the constitutional rights of citizens by deciding the constitutionality of laws since the legislature has refused to pass same-sex marriage.

The attorneys for the gay side argued that restricting marriage to opposite-sex couples violates equal protection, privacy and due process provisions in the New York constitution.

Attorneys for the same-sex couples pointed to Massachusetts, the only state that allows same-sex marriage.

That state?s top court ruled in 2003 that it was a violation of the constitutional rights of same-sex couples to bar them from marrying and gave the legislature six months to rectify the issue or marriage would automatically be opened.

?For the past three years, gays and lesbians in Massachusetts have been able to get a common law marriage, and not one heterosexual person has been harmed by it,? said O?Donnell of New York City, brother to the lesbian comedian, after arguments were heard.

In Vermont, when the state?s highest court threw the issue to legislators, they passed a sweeping civil union law granting virtually all of the state privileges and responsibilities of marriage but drawing criticism that it amounted to a ?separate but equal? status, and ended at the state line.

New York Law School professor Arthur S. Leonard, in a Gay City News analysis, noted that Schiff, representing the attorney general?s office, seemed barely prepared for his role, attributing it in part to Spitzer?s stated support for same-sex marriage.

The attorney general is the Democratic challenger to Republican Gov. George Pataki in this fall?s election.

A ruling could come as early as this summer. State supreme courts are also expected to rule on the issue in New Jersey, whose court heard arguments in February, and in Washington state, where the top court heard arguments over a year ago.

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