Lawyers argue gay
marriage
before New York
appeals court
By SAMUEL MAULL, AP
from Newsday.com on the Web, September 13, 2005
NEW YORK -- City lawyers told
an appellate panel on Tuesday that gay marriage is a legislative and not a
judicial issue, while attorneys for a homosexual legal group said the courts
should uphold the fundamental right to choose one's spouse.
Because same-sex marriage is an issue for lawmakers, city attorney Leonard
Koerner said, the five-judge panel of the state Supreme Court's Appellate
Division should reverse a lower court decision that approved such unions.
Susan Sommer, lawyer for the Lambda Legal civil rights organization, said
barring same-sex marriage denies gays the constitutional guarantees of equal
protection and due process. She asked the panel to uphold the lower
court's decision.
The disputed ruling was issued in February by state Supreme Court Justice Doris
Ling-Cohan, who found that a state law barring same-sex marriage was
unconstitutional. The decision was the first of its kind in New York City
and was a step toward allowing gay weddings.
Ling-Cohan found gays were denied rights available to heterosexuals and said the
city clerk could not deny a marriage license to any couple solely because they
are of the same sex.
"Under both the federal and New York state constitutions, it is beyond question
that the right to liberty, and the concomitant right to privacy, extend to
protect marriage," Ling-Cohan wrote.
Though arguing against same-sex unions, Koerner said Mayor Michael Bloomberg
favors gay marriage. But he said the mayor wants a definitive statewide
ruling or statute to avoid the "chaos" of a marriage being legal in New York
City but not in Buffalo.
Appellate Justice David Saxe asked Koerner "whether the freedom to choose the
sex of one's spouse is a constitutional right."
Koerner said that in every decision on marriage that the U.S. Supreme Court has
considered, "The court went out of its way to say there was no legal recognition
of same-sex marriage."
Sommer, the Lambda lawyer, replied that no U.S. Supreme Court decision has
directly addressed the right to same-sex marriage.
"While all the (Supreme Court's) marriage rulings have presumed man-woman
unions," she said, "that doesn't create a rule excluding same-sex marriage."
Koerner said the U.S. Supreme Court held that the legal terms of marriage are
subject to legislative review. So far, he continued, the Legislature has
said marriage is a union between a man and a woman.
The rational basis of the lawmakers' definition, Koerner said, was to create
stable situations for child rearing.
Sommer replied, "There is no rational reason for excluding 31,000 children being
raised by same-sex couples from the same stability as those raised by
heterosexuals."
Some of the judges seemed unreceptive to Sommer's arguments. They asked
several times whether her issues should be before the Legislature rather than
the courts.
Sommer said laws were subject to judicial review if they violated constitutional
rights and it was the court's duty to ensure the rights of the individual.
The judges also seemed to reject the suggestion that the high court's decision
in Loving vs. Virginia, which allowed marriages between people of
different races, was applicable in this case.
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