Print Edition: March 8, 2015
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BY SABRINA ARENA FERRISIRegister Correspondent
ALBANY, N.Y. —The
movement that supports same sex “marriage” suffered setbacks in five courts in
The highest court in New York ruled against
it on July 6 in the case Hernandez v.
Robles. That same day, Georgia’s
highest court reinstated a constitutional amendment banning same-sex “marriage”
that had been approved by three-fourths of Georgia’s voters.
On July 12, a Connecticut Superior
Court judge decided that homosexual couples couldn’t call themselves “married”
even though they possess the same rights and protections as married couples
under the state civil union law.
And on July 14, a court in Nebraska reinstated a voter-approved ban on same-sex
marriage, while one in Tennessee
allowed a referendum to go forward. The New York Court of Appeals is the first
state high court, after Massachusetts,
to specifically deal with the question of the constitutionality of limiting
marriage to one man and one woman. To date, Massachusetts is the only state to allow
“It’s a good sign,” said Dwight
Duncan, law professor at the Southern New England School of Law and author of
amicus briefs in state courts on behalf of the Alliance for Marriage. “The New York State
Court of Appeals is a very prestigious court with a very rich and solid legal
reputation. This is an important battleground.”
Many supporters of same sex
“marriage” had expected the court to decide in favor of their cause,
particularly because New York
is considered more permissive on social issues.
“Today’s decision refuses to
recognize that gay and lesbian New Yorkers and their families are full citizens
of this state. But this struggle is far from over,” said Susan Sommer, senior counsel at Lambda Legal and lead plaintiffs’
attorney in Hernandez July 6.
Proponents of traditional marriage
were heartened by the 4-2 vote on the Court of Appeals panel and Judge Robert
Smith’s written opinion. Smith reasoned that the New York State Constitution
did not grant same-sex couples the right to marry and that this issue was best
left for the Legislature. The plaintiffs — 44 couples — had argued that their
right to marry came from the equal protection and due process clause of the
That constitution “protects
citizens from having their liberties taken without due process,” said Duncan. “Judge Smith says
that although the right to marry is a fundamental freedom, there is no right to
marry same-sex couples. There are no historical roots for it.”
Smith outlined a rationale by
which the Legislature could decide to restrict marriage to opposite-sex
“First, the Legislature could
rationally decide that for the welfare of children, it is more important to
promote stability, and to avoid instability, in opposite-sex than in same-sex
relationships,” Smith wrote in his decision.
Effect on Goodridge?
Smith also wrote about how
heterosexual relationships naturally lead to children.
“The Legislature could rationally
believe that it is better, other things being equal, for children to grow up
with both a mother and father,” he wrote. “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 woman are like.”
The plaintiffs argued that
opposition to same-sex “marriage” constitutes a form of bigotry not unlike
racism. Therefore under the equal protection clause, they wanted the same
rights as opposite-sex couples.
Smith responded by writing, “Until
a few decades ago, it was an accepted truth for almost everyone who ever lived,
in any society in which marriage existed, that there
could be marriages only between participants of different sex. A court should
not likely conclude that everyone who held this belief was irrational, ignorant
or bigoted. We do not so conclude.”
Praise for Smith’s opinion center
on his restraint and respect for the democratic process.
“This is a victory for judicial
restraint,” said Roger Adler, the lawyer who wrote the amicus brief for the
Conservative Party of New York State. “I think Smith’s decision will give
courage to those who want to resist Goodridge. It supports the democratic principle that these
issues are best left to elected officials.”
Adler referred to Goodridge v.
Department of Public Health, the 2003 ruling of Massachusetts’ Supreme Judicial Court that forced the
Legislature to legalize same-sex “marriage.”
“What we have is the beginning of
a legal trend resisting the Goodridge decision. Three courts have rejected the Goodridge
decision saying that there are important differences between men and women,” said Maggie Gallagher, president of
the Institute for Marriage and Public Policy.
“Same-sex ‘marriage’ advocates
have had no success after Massachusetts,”
said Dennis Poust, director of communications for the
New York State Catholic Conference. “They have attempted to circumvent popular
opinion by going to the courts. But if a liberal state like New York isn’t going to give them the
results they want, it’s unlikely that many other states will.”
Matt Daniels, president of the Alliance for Marriage,
believes other courts will follow Goodridge.
“The general trend in the courts
is in the other direction,” he said. “Ideas that are embraced at top laws
schools inevitably become the law. We can trace the example of this with the
‘right to privacy,’ which became Roe v.
Wade. It was created by academia long before. In many law schools, it is
taken for granted that support for traditional marriage is a form of bigotry.”
The New York Legislature will
probably address the issue of same-sex “marriage” after a new governor is
elected this fall.
“I think the debate will be framed
by whoever is the next governor,” said Poust. “Eliot
Spitzer, the Democratic candidate, is on record as favoring same-sex
‘marriage.’ He said he would introduce legislation. The Republican candidate,
John Faso, is opposed to same-sex ‘marriage.’ Spitzer is overwhelmingly favored
“It will require people who support
the traditional man-woman marriage to become more politically involved,” said
Gallagher. “The forces that support same-sex ‘marriage’ are very competent and
Sabrina Arena Ferrisi is based
in Mamaroneck, New York.
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