ALBANY, N.Y. —The movement that supports same sex “marriage” suffered setbacks in five courts in July.

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 homosexual “marriage.”

“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 state constitution.

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 couples.

“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 to win.”

“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 sophisticated.”

Sabrina Arena Ferrisi is based
in Mamaroneck, New York.