Facing aggressive questioning from six judges on the state’s highest court, advocates for same-sex marriage said the court should require that gay and lesbian couples be allowed to marry while opponents argued that the court should leave the state’s marriage law undisturbed and allow the Legislature to take up the issue.
“When constitutional rights are at stake and the Legislature is falling short in protecting them, it is the responsibility of this court,” said Susan Sommer, senior counsel at Lambda Legal, while making her closing argument before the Court of Appeals.
The May 31 hearing lasted nearly two-and-one-half hours as four attorneys representing 44 gay and lesbian couples made their case while lawyers representing New York City, the state attorney general’s office, and the city of Albany spoke in opposition.
Ithaca, which was named as a defendant in one of the four suits the court heard, did not submit briefs to the court and declined to participate in the oral arguments. The city is on record supporting gay marriage rights.
Much of the hearing was taken up with arguments concerning the legal theories and state and federal court decisions the Court of Appeals should use to decide the case.
Sommer began by saying that earlier cases had found that marriage is a fundamental right and, by extension, who a person chooses as a spouse should enjoy the same strong protections given to that fundamental right.
Marriage is a fundamental right “which implicitly includes the right to marry the person of one’s choice,” she said.
The judges immediately began asking if that meant that the state could place no restrictions on marriage. Would her argument mean that bigamy, polygamy, or marriage between an underage youth and an adult should be legal as well?
“You speak of the fundamental right to marry,” said Chief Judge Judith S. Kaye. “Are there any limitations on that? If we’re declaring a fundamental right to marry I think that we’d like to be sure that we’re not opening up all these other opportunities.”
“The government can still impose incidental burdens,” Sommer said.
The judges also asked about the centuries-long history during which marriage has been restricted to one man and one woman.
“Is it your position that we should pay no attention to historical meanings?” asked Judge George Bundy Smith.
“The history should not be dispositive here,” Sommer said.
Roberta Kaplan, an attorney with the law firm of Paul, Weiss, Rifkind, Wharton & Garrison, spoke on behalf of the American Civil Liberties Union and the New York Civil Liberties Union.
“My job is to explain to your honors that neither the State nor the City of New York can justify the exclusion of same-sex couples,” she said. Kaplan said the court should weigh the state marriage law using a heightened scrutiny standard, imposing a high burden on New York in explaining its policy, when deciding if that law discriminates on the basis of sex—because it bars people of one sex from marrying a person of the same sex—and sexual orientation.
That standard is used when considering laws that implicate gender. Both the city and the state argued that the court should use a rational basis standard, the test that presents the government with the lowest burden when justifying the constitutionality of a law.
Kaplan said that, even under the less stringent rational basis test, the law could not pass constitutional muster.
“If this court acts in accordance with the precedents it has we believe you will conclude that the exclusion of same-sex couples from marriage does not even satisfy the rational basis,” she said.
During her summation, Kaplan said that there were 46,000 same-sex couples with children living in New York.
“There is no dispute that there is no rational basis in excluding those families from marriage,” she said. “If there is no rational basis then this court must strike the statute.”
The judges also wanted to know what the consequences would be if they held that the state marriage law discriminates against gay and lesbian couples.
“What will happen is exactly what happened in Massachusetts, which is basically nothing,” Kaplan said. Massachusetts legalized gay marriage in 2004 and 8,000 gay and lesbian couples have married there since then.
The court also heard from Richard Stumbar, a partner at Bixler & Stumbar, an Ithaca law firm, who spoke on behalf of 25 same-sex couples from the Ithaca area, and Terence L. Kindlon, a partner at Kindlon & Shanks, an Albany law firm, who represented two couples.
“For the past hour you’ve been soaring the rarefied air of constitutional law,” Kindlon said. “I’m going to ask you to come down and discuss the human aspects of this case.”
One of his couples has been together for 30 years “and they will be together for the rest of their lives,” Kindlon said. The other has been together for 10 years.
Leonard Koerner, chief assistant corporation counsel in the city’s Law Department, argued that the court should allow the state Legislature to address same-sex marriage.
“The definition of marriage and who can marry was exclusively for the Legislature,” Koerner said citing an earlier federal court decision. “As of now there is exclusive control of the definition within the Legislature.”
The court should apply a rational basis test to decide the four cases, he said. Since promoting stable families in which straight couples raise children is the purpose of the state marriage law, and that is a reasonable means to achieve a legitimate government goal, the statute is constitutional, according to Koerner.
Koerner also said that because gay men and lesbians are not subject to discrimination, more stringent legal standards, such as heightened scrutiny, should not be used.
“The answer is no,” Koerner said when asked by Judge Robert S. Smith if they experienced discrimination. “The truth is they are politically effective.”
Peter H. Schiff, senior counsel in the state attorney general’s office, said it was the state Legislature’s job to change the marriage law.
“The bottom line here is if there are going to be changes they ought to be done by the Legislature,” he said. “After this court decides, hopefully in our favor, the Legislature will be more likely to act.
Schiff made an argument similar to Koerner’s saying that since “opposite-sex couples are the only ones who procreate by lying next to each other,” the state “has had a long interest in channeling opposite-sex relations into marriage.” Same-sex couples are “not comparable,” Schiff said.
Bundy Smith asked Schiff “Suppose we disagree with you and say there is a right to marry. What flows from that?”
Schiff said, “I have no way of really speculating in terms of the consequences whether there would be riots The benefits and the burdens that apply to opposite sex couples would apply to same-sex couples.”
Patrick K. Jordan, assistant corporate counsel who represented the city of Albany, also urged the court to leave any action to the state Legislature.
“It has to be taken step by step,” he said. “They are, it appears, taking incremental steps.”
The court is expected to issue a decision in one to two months. The Court of Appeals’ seventh judge, Albert M. Rosenblatt, recused himself because his daughter, Elizabeth L. Rosenblatt, an attorney, has worked on gay marriage cases in other states.