- The Washington Times - Thursday, July 6, 2006

12:59 p.m.

ALBANY, N.Y. (AP) — New York’s highest court ruled today that homosexual “marriage” is not allowed under state law, rejecting arguments by same-sex couples who said the law violates their constitutional rights.

The Court of Appeals, in a 4-2 decision, said New York’s marriage law is constitutional and clearly limits marriage to union between a man and a woman.

Any change in the law would have to come from the state Legislature, Judge Robert Smith said.

“We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives,” Judge Smith wrote.

Gov. George E. Pataki’s health department and state Attorney General Eliot Spitzer’s office had argued that New York law prohibits issuing licenses to same-sex couples. The state had prevailed in lower appeals courts.

“It’s a sad day for New York families,” said plaintiff Kathy Burke of Schenectady, who is raising an 11-year-old son with her partner, Tonja Alvis. “My family deserves the same protections as my next-door neighbors.”

The judges declined to follow the lead of high court judges in neighboring Massachusetts, who ruled that same-sex couples in that state have the same right to wed as straight couples.

The four cases decided today were filed two years ago when the Massachusetts decision helped usher in a series of same-sex “marriage” controversies from Boston to San Francisco.

With little hope of getting a same-sex “marriage” bill signed into law in Albany, advocates from the American Civil Liberties Union, Lambda Legal and other advocacy groups marshaled forces for a court fight. Forty-four couples acted as plaintiffs in the suits, including the brother of comedian Rosie O’Donnell and his longtime partner.

Plaintiff Regina Cicchetti said she was “devastated” by the ruling, but the Port Jervis resident said she and her partner of 36 years, Susan Zimmer, would fight on, probably by lobbying the New York Legislature for a change in the law.

“We haven’t given up,” she said. “We’re in this for the long haul. If we can’t get it done for us, we’ll get it done for the people behind us.”

In a dissent, Chief Judge Judith Kaye said the court failed to uphold its responsibility to correct inequalities when it decided to simply leave the issue to lawmakers.

Judge Kaye noted that a number of bills allowing same-sex “marriage” have been introduced in the Legislature over the past several years, but none has ever made it out of committee.

“It is uniquely the function of the judicial branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation,” she wrote. “The court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Judge Albert Rosenblatt, whose daughter has advocated for same-sex couples in California, did not take part in the decision.

Since the Massachusetts ruling, about a dozen states have approved constitutional bans on same-sex “marriage,” and 19 outlaw it. There is a push in Massachusetts for a state constitutional amendment to ban same-sex “marriage.”

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