For Gay Rights Movement, a Key Setback
By PATRICK HEALY
Published: July 7, 2006
When Massachusetts became the first state to legalize gay marriage in
November 2003, gay rights advocates imagined a chain reaction that would
shake marriage laws until same-sex couples across the nation had the legal
right to wed.
Nowhere did gay marriage seem like a natural fit more than New York, where
the Stonewall uprising of 1969 provided inspiration for the gay rights
movement and where a history of spirited progressivism had led some gay
couples to envision their own weddings someday.
Yesterday's court ruling against gay marriage was more than a legal rebuke,
then — it came as a shocking insult to gay rights groups. Leaders said they
were stunned by both the rejection and the decision's language, which they
saw as expressing more concern for the children of heterosexual couples than
for the children of gay couples. They also took exception to the ruling's
description of homosexuality as a preference rather than an orientation.
"I never would have dreamed that New York's highest court would be so
callous and insulting to gay people — not in New York — to have a legal
decision that treats us as if we are alien beings," said Matt Foreman,
executive director of the National Gay and Lesbian Task Force.
The New York ruling came the same day that the Georgia Supreme Court
reinstated a ban on gay marriage.
The New York decision thrusts several challenges before gay activists: Do
they continue waging legal battles when more courts seem skeptical about
forcing gay marriage on the public? Should the cause turn toward more modest
goals like supporting civil unions and domestic-partner benefits, like the
law that Connecticut passed last year?
For now, at least, so-called marriage equality is the fight that both sides
want to wage, and opponents are predicting that New York will be remembered
as the beginning of the end of gay marriage.
"When people look back and write the history of this issue, they will view
the New York decision as the Gettysburg in this big contest," said Monte
Stewart, president of the Marriage Law Foundation.
Public opinion polls show that many Americans oppose gay marriage, and it is
an issue that even separates some gay people, who see the marriage debate as
a distraction from such pressing concerns as increasing federal and state
support for AIDS research. The debate, in turn, has helped intensify gay
marriage's effectiveness as a political weapon, which was widely noted last
month when Republicans in the United States Senate were defeated in a vote
on their proposed constitutional amendment banning gay unions. The House may
take up the issue soon.
Gay supporters who saw hopeful tidings nearly three years ago in the
Massachusetts ruling had not believed that a stinging new defeat could
"The New York Court of Appeals has a long tradition of protecting equal
rights for New Yorkers, but today the court let us down," said Christine C.
Quinn, the first openly gay speaker of the City Council in New York.
Before the decision, some gay leaders predicted that it would take only a
decade for several states to legalize gay marriage and the United States
Supreme Court to set a single standard of civil marriage for all states by
allowing gays to wed everywhere. Yesterday, some of those leaders said they
were dispirited enough to wonder if it would take two decades or more to
reach that goal. Not knowing seemed to hurt the most.
"New York just reminded us that we'll have to go through a long period of
conflict and confusion before we make it to the other side," said Shannon
Minter, legal director of the National Center for Lesbian Rights, who will
make arguments in a gay marriage case in California on Monday.
Both sides agreed that the legal analysis in the New York decision would be
read by, and perhaps influence, judges in other states who are considering
similar cases. A ruling in a New Jersey case is expected by August, and
another decision is forthcoming in a case in Washington State. Four other
states — California, Connecticut, Iowa and Maryland — have court cases
Opponents of gay marriage immediately hailed the New York decision as a sign
that the legal and political campaign toward gay marriage nationwide had
stalled. More than 40 states have laws that restrict marriage to a man and
woman, and no high court or state legislature has granted gays a right to
marry anywhere except Massachusetts.
Mr. Stewart, of the Marriage Law Foundation, said he was particularly
pleased by the "superb and straightforward legal analysis" of the New York
decision. He argued that it would provide a foundation for jurists in other
states to restrict civil marriage to a man and a woman.
Specifically, Mr. Stewart praised Judge Robert S. Smith for refusing to use
the racist legacy of miscegenation laws as a justification for extending
marriage rights to same-sex couples. Too often, Mr. Stewart said, trial
court judges and politicians are cowed by the premise that barring their
unions would be the same as barring people of different races to marry.
"It's going to carry a lot of intellectual clout with other judges around
the country," Mr. Stewart said.
David S. Buckel, senior counsel and director of the Marriage Project at the
Lambda Legal Defense and Education Fund, which is pressing court cases to
legalize gay marriage, acknowledged that the New York decision "will
certainly be an opinion that other states will look at."
Yet Mr. Buckel and other supporters of gay marriage said parts of the ruling
could shock judges and other Americans into seeing gay marriage in a
favorable light. In particular, they noted one section suggesting
heterosexual couples need marriage to be preserved as a way to shore up
their faulty relationships and protect their children who might suffer in
"It's a mess of a decision that in the end makes a very weak argument: That
you can justify barring same-sex couples from marrying because of the
unstable relationships of heterosexual couples," Mr. Buckel said.
With the New York case out of the way, the New Jersey case is taking on
particular prominence, given that some legal analysts say that the New
Jersey Supreme Court has a history as an assertive force for social change.
Seven long-time couples sued in 2002 for the right to marry; five of the
couples have children.
Joe Solmonese, the president of the Human Rights Campaign, a gay support
group, said he was surprised that the New York decision connected the rights
and responsibilities of marriage to child-bearing.
He also said he found Judge Smith's use of the phrase "sexual preference" to
describe homosexuality — instead of "sexual orientation" — to be
provocative, and he predicted that many readers of the opinion would view
the decision as retrograde.
"If nothing else, this ruling will cause people — gay and straight alike —
to reflect on this judge's unusual view of gay marriage and then come to
their own conclusions," Mr. Solmonese said.
Gay leaders also pointed out that more corporate leaders are standing by
their side. Yesterday, The Boston Globe reported that 165 business and civic
leaders in Massachusetts were mobilizing to protect gay marriage by fighting
a proposed constitutional amendment there. That amendment could go before
voters in 2008, raising the possibility that the number of states permitting
gay marriage could go back to zero.