NY- Gay couples seeking to marry in New York had their hopes crushed yesterday by a Manhattan panel of judges that said homosexuals have no “fundamental right” to get hitched unless the Legislature changes the law.
In a 4-to-1 ruling, the Appellate Division said Manhattan Supreme Court Justice Doris Ling-Cohan was wrong last February when she ruled that state law was unconstitutional because it did not permit gay marriages.
“We find it even more troubling that the court, upon determining the statute to be unconstitutional, proceeded to rewrite it and purportedly create a new constitutional right,” the court said.
“The power to regulate marriage lies with the Legislature, not the judiciary,” they wrote.
After rebuking the lower court for trying to make new law, the judges clearly indicated that they favor the old law, which, they said, legitimately defines marriage as “the union between one man and one woman.”
“The law assumes that a marriage will produce children and affords benefits based on that assumption. It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing,” they said, adding:
“Marriage laws are not primarily about adult needs for official recognition and support but about the well-being of children and society, and such preference constitutes a rational policy decision.”
Susan Sommer, an attorney for the Lambda Legal Defense Fund, which represented five gay couples in the litigation, said they will appeal the ruling to the state’s highest court, the Court of Appeals.
“We’re disappointed, but we always knew that ultimately the decision would have to go to the Court of Appeals,” she said.
She praised the one dissenter, Judge David Saxe, who said the law should not be bound by the “assumptions of previous generations” who also once assumed brides were “chattel.”
Mayor Bloomberg, whose lawyers fought to overturn Ling-Cohan’s decision, said that if the high court affirms this decision, “I will ask the Legislature to change the state’s Domestic Relations Law to permit gay marriage.”
One plaintiff, Daniel Hernandez, 48, a Manhattan architect, said the decision was “incredibly disappointing” for him and his partner, Nevin Cohen, 43, whose father died two weeks ago.
“We don’t get any younger and our parents don’t get any younger. Our families are so supportive but our parents are talking about how much time they have left and they wonder if they’ll ever see this happen,” he said.