By Karen Ocamb

In a 4-2 ruling considered “heart-breaking” by legal and marriage equality advocates, New York’s highest court upheld the state's ban on same-sex marriage as constitutional on July 6.

Writing the majority opinion for the Court of Appeal, Judge Robert S. Smith said, "Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals." Procreation and the welfare of children could be construed as a rational social goal of opposite-sex marriage. Nonetheless, he wrote, "We express our hope that the participants in the controversy over same-sex marriage will address their arguments to the legislature."

Chief Judge Judith S. Kaye, wrote in her dissent, "I am confident that future generations will look back on today's decision as an unfortunate misstep… Simply put, a history or tradition of discrimination—no matter how entrenched—does not make the discrimination constitutional. As history has well taught us, separate is inherently unequal."

"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 attorney on Hernandez v. Robles, one of four marriage cases before the court. "We call upon Mayor Bloomberg and Attorney General Spitzer to fulfill their promises to work with state legislators to allow gay and lesbian couples to marry."

“The New York decision is heart-breaking,” Lambda Legal’s Jenny Pizer told IN Los Angeles magazine. “Its legal reasoning is bankrupt and doubtless will be repudiated, as has happened on other issues of LGBT rights. But for the couples today, it’s a heart-breaking disappointment.”

Pizer was struck by the majority’s decision to disregard “relevant civil rights precedents,” which Chief Justice Kaye “took seriously” because of her “life experience” as a racial minority in an interracial marriage. Her analysis provided a “clear repudiation of the mistaken ideas that make up the majority.”

Pizer is part of the legal team, led by Shannon Minter of the National Center for Lesbian Rights, that argued marriage equality before the California Court of Appeal July 10.

But, Pizer told IN on July 6, New York and California are socially and politically very different and the New York decision “does not plow new ground.” For instance society long ago recognized that children have no choice in who their parents are and therefore should not be deemed illegitimate and denied state protection.

“We tend to equate the two because both were birth places for the modern LGBT liberation movement and both have a lot of Democrats,” Pizer said, “but California is way more diverse and the legal advances are far ahead of New York.”

To date, Massachusetts is the only state where the appellate court ruled that the state constitution required recognition of same-sex couples. Cases similar to the one presented in New York are pending court rulings in New Jersey and the state of Washington.

To read the full opinion, go to www.lambdalegal.org.