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State Can Bar Same-Sex Unions, N.Y. Court Rules

MICHELE NORRIS, host:

From NPR News Washington, this is ALL THINGS CONSIDERED, I'm Michele Norris.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

Today New York States highest court ruled that same-sex couples do not have a constitutional right to marry. A four-judge majority said that gay marriage is an issue for the state legislature to decide. The ruling is a setback for the gay rights movement, which saw New York's liberal court as one of its best chances to gain an incremental victory. NPR's Nancy Solomon reports.

NANCY SOLOMON reporting:

Gay activists thought New York would be the next state that would follow Massachusetts to legalize gay marriage, so it was a bitterly disappointed group of activists and lawyers who faced a phalanx of reporters, and tried to explain what had gone wrong. James Essex of the ACLU, says he's particularly surprised that the court sided questions about whether same sex couples should be able to raise children in its decision.

Just last week, Essex says, an Arkansas court ruled in favor of gay foster parenting.

Mr. JAMES ESSEX (ACLU): So what we have here we have the New York court of appeals, the highest court in the State of New York, issuing a decision today, that is decades behind Arkansas. And who would have thunk that?

SOLOMON: The case was brought by 44 lesbian and gay couples from across the state, some with and some without children. They argued that without a marriage license, they do not have equal access to the same health benefits, medical decision making, or inheritance laws. One couple Cindy Bink(ph) and Ann Parkner(ph) have been together 18 years and live in New York City. Bink said she changed jobs to obtain domestic partner health benefits for Parkner, but it hasn't been enough.

Ms. CINDY BINK (Gay Activist): Every time she goes to the doctor, into a hospital, in the emergency room, she's questioned you can't possibly be on this persons plan because you're not married and she's not your mother. It's the cultural prospective that, if your not married, there is always going to be a question, and that's the hard part.

SOLOMON: Of the four judges who signed the majority opinion, three were appointees of George Pataki, the Republican governor who has hinted at a run for the presidency - says he's pleased with the decision.

Governor GEORGE PETAKI (Republican, New York State): Marriage between a man and a woman has been the law of New York state since the beginning of this state. And any changes to that, should be made by the elected officials - the legislators working with the executives.

SOLOMON: Judge Robert Smith, writes in the opinion, that the prohibition against same sex marriage is not purely based on discrimination against gay people, the state may have a rational interest in defining what relationships should be encouraged to have children. Smith also takes it a step further, writing “It is not irrational for the legislature to provide an incentive for opposite sex couples, for whom children maybe conceived from casual, even momentary intimate relationships, to marry create a family environment, and support their children.”

New York University Law Professor, Stephen Gillers, called this reason astonishing, because it says gay people don't need marriage because their children are so well-planned.

Professor STEPHEN GILLERS (New York University): It is so unacceptable, I mean it is so weak, that it may give the gay rights community some traction, in going to the legislature.

SOLOMON: That's precisely what the activist say they plan to do next. They say it took 31 years to get New York to pass an anti-discrimination law for gays and lesbians. But New York City Major Michael Blumberg, says he'll personally campaign for a new marriage law, and with statewide polls showing 53 percent support for gay marriage, they say they expect to win in the legislature in the next few years. Nancy Solomon, NPR News, New York.

SIEGEL: Today's ruling in New York is the latest development in the debate over gay marriage. You can see how all 50 states stand on the issue, with an interactive map at NPR.org. Transcript provided by NPR, Copyright NPR.

Nancy Solomon