Appeals court continues ban on gay marriage in New York

By Ross von Metzke • December 9, 2005 - 0:00

The Appeals court found that Justice Doris Ling-Cohan was wrong to find that denying gay marriage was unconstitutional

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An appeals court has thrown out a ruling that would have allowed gay couples to marry in New York City, saying it is not the role of judges to redefine the terms 'husband' and 'wife'.

The state Supreme Court's Appeals Division ruled 4-1 that Justice Doris Ling-Cohan was wrong to find that denying gay marriage was unconstitutional.

"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 appeals court added.

The Supreme Court is New York's main trial-level court. It has its own appeals division.

Judge Ling-Cohan had ruled in favour of five gay couples who sued New York City because the city clerk had denied their marriage license applications. The gay couples complained that their equal protection and due process rights under the New York Constitution were violated.

Judge Ling-Cohan barred the city clerk from denying marriage licenses to gay couples. In her ruling, she said the words "husband," "wife," "groom" and "bride," as they appear in the domestic relations law, should be defined to apply equally to men and women.

But the appeals court said this "was an act that exceeded the court's constitutional mandate and usurped that of the Legislature."

The court said it is not up to judges to redefine terms that are given clear meaning in a statute. Also, the appeals court said state laws regarding marriage do not violate the state constitution.

In a dissent, Justice David Saxe said that he saw no important public interest in barring same-sex marriage and that laws that prohibit it perpetuate discrimination.

"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 rest of the court said.

Susan Sommer, a lawyer at Lambda Legal, the gay rights organization that spearheaded the same-sex marriage drive, said, "You bet we're going to appeal." "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."

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