By The Associated Press
NEW YORK – Following the decision by a state appeals court reversing a ruling that would have permitted same-sex couples to wed in New York City, a group behind a drive to allow marriages for same-sex couples said it would appeal.
The state Supreme Court’s Appellate Division ruled 4-1 Dec. 8 that Justice Doris Ling-Cohan erred in February when she held that the state’s domestic relations law is unconstitutional since it does not permit marriage between people of the same sex.
“You bet we’re going to appeal,” said Susan Sommer, senior lawyer at Lambda Legal, the gay rights organization that spearheaded the same-sex marriage drive.
Mayor Michael Bloomberg, a Republican who supports gay marriage, also said he expected the ruling would be appealed.
“If today’s decision is affirmed by the Court of Appeals, I will urge the Legislature to change the state’s Domestic Relations Law to permit gay marriage,” said Bloomberg, a former Democrat who switched parties before running for office in 2001.
Assembly member Richard Gottfried has co-sponsored a bill that would recognize marriage for same-sex couples says the bill does not yet have a majority in either house in support of the legislation.
“Having someone of Mayor Bloomberg’s stature supporting the bill would very important,” he said. “But it’s long overdue.”
In its ruling Dec. 8, the court criticized the way Ling-Cohan proceeded, saying, “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 appellate court said this “was an act that exceeded the court’s constitutional mandate and usurped that of the legislature.” The appellate judges said it is not for the court to redefine terms that are given clear meaning in a legislative statute.
The appeals court was referring to Ling-Cohan’s ruling that the words “husband,” “wife,” “groom” and “bride,” as they appear in the domestic relations law, or DRL, should be defined to apply equally to men and women.
Ling-Cohan’s ruling favored five gay couples who sued New York City because the city clerk had denied their marriage license applications on the ground the state “does not authorize this office to grant marriage licenses to same-sex couples.”
Ling-Cohan then permanently barred the New York city clerk from denying a marriage license to any couple solely on the ground that the two were of the same sex. Her decision was the first of its kind in New York City and was a step toward allowing weddings for gays.
The appellate judges said that state laws regarding marriage “do not violate the due process and equal protection provisions of the New York State Constitution.”
“The role of the courts is ‘to recognize rights that are supported by the constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes,'” the appeals court wrote, quoting a 2003 decision handed down by a Massachusetts state court.
Justice David Saxe was the panel’s dissenter. He said he saw no important public interest in barring same-sex couples from marrying and said laws that prohibit it perpetuate legal discrimination.
The judges’ 4-1 reversal keeps the status quo on marriage. The judges noted that nothing in the DRL specifically bars same-sex marriage but its gender-specific terms have been interpreted to indicate the legislature never intended to allow gay marriage.
“The legislative policy rationale is that society and government have a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing,” the appeals court wrote.
“We’ve always known that this issue would have to be decided in the state’s highest court, and we’re eager to make our case there,” Sommer said. “We are gratified that the dissenting judge understood that denying civil marriage to gay and lesbian New Yorkers ‘perpetuates a deeply ingrained form of legalized discrimination.'”
In her argument before the Appellate Division, she said laws are subject to judicial review if they violate basic constitutional rights and it is the court’s duty to ensure the rights of the individual.
The appellate judges also rejected the suggestion, by both Ling-Cohan and Sommer, that the U.S. Supreme Court’s decision in Loving vs. Virginia, which allowed marriages between people of different races, was applicable in this case.