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New York's highest court ruled on Thursday in a 4-2 decision that gays and lesbians have no constitutional right to marry in the state. The case combined four different suits brought by more than 40 same-sex couples who had spent two years fighting their case through the New York courts.

The majority decision, authored by Judge Robert S. Smith, found that limiting marriage to couples of the opposite sexes was based on legitimate societal goals, primarily the protection and welfare of children. It could well be argued, he said, that children are better off raised by a biological mother and father, rather than by a gay or lesbian couple.

"Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like," Judge Smith wrote in his 17-page opinion.

The court's chief judge, Judith S. Kaye, issued a sharp dissent, warning that future generations would look back at yesterday's decision as "an unfortunate misstep." She said that banning gay marriage was tantamount to banning interracial marriage, as laws formerly did, before it was eventually overturned in 1967.

"The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it," Judge Kaye wrote in a 27-page opinion, in which she was joined by Judge Carmen Beauchamp Ciparick.

Gay and lesbian groups in New York view the decision as a key setback given its history of gay activism and being the birthplace of the country's gay rights movement since Stonewall in 1969.

The defeat was felt in Georgia the same day as its Supreme Court reinstated a ban on same-sex marriage just hours after the New York ruling. Vermont's high court found that the benefits of marriage should be provided to same-sex couples, but deferred to the Legislature, which enacted a law providing for same-sex civil unions, rather than marriage.

The highest court in Massachusetts is the only appellate court in the country to have ruled that same-sex marriage is permitted by a state constitution while cases involving gay marriage are pending in the high courts of New Jersey and Washington State.

The rulings come at a time when the country is deeply divided over the issue of gay marriage. Surveys show that a majority of Americans oppose same-sex marriage, but that when the word "marriage" is not used in poll questions, people are more sympathetic to gay and lesbian issues, according to Public Agenda, a policy research group.

"Today is a sad day for all New Yorkers who believe in the constitutional guarantee of equal protection under law," said Roberta A. Kaplan, lead counsel with the American Civil Liberties Union and the New York Civil Liberties Union for the plaintiffs in one of four cases consolidated in the same ruling.

New York Gov. George E. Pataki, a gay marriage opponent, hailed the ruling - adding that he would not sign a bill legalising gay marriage if one was sent to him by the Legislature.

"Each New Yorker is free to choose wisely or poorly without regard to whether the marriage has the stamp of public approval, unless he or she would marry a partner of the same sex," Susan L. Sommer of Lambda Legal, and Jeffrey S. Trachtman, both lawyers representing the plaintiffs in Hernandez v. Robles, said in one brief submitted to the court.

In what The New York Times described as "an unusual split for the Court of Appeals," judges issued two separate opinions supporting the ruling. Judge Smith's ruling, which was signed by Susan Phillips Read and George Bundy Smith, made sociological arguments linking the purpose of the marriage law and promoting families with children.

The second majority opinion, written by Judge Victoria A. Graffeo, upheld the ruling but distanced itself from the argument. She wrote, ""Marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing."

She exhorted the Legislature to take up the issue, saying, "It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate."

The court's seventh judge, Albert M. Rosenblatt, recused himself. His daughter, Elizabeth L. Rosenblatt, has argued as a lawyer in favor of gay marriage before the courts of several other states.

Judge Kaye, who has served on the court for 13 years, said that the understanding of marriage had evolved and that the historical and cultural understanding of marriage did not justify discrimination.

"Only since the mid-20th century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support." She noted that as recently as the 19th century, wives were considered the property of their husbands and married women could not own property or enter into contracts not too long ago.

Bearing children, she said, is not a prerequisite of marriage, since the elderly and even prison inmates are permitted to marry, and many same-sex couples do have children.

Most people, she wrote, look forward to a wedding "as among the most significant events of their lives," and she said it was wrong for gays and lesbians to be denied marriage "because of who they love."

For the US LGBT communities' reaction to the decision, please visit the web sites of Lambda Legal (www.lambdalegal.org), Empire State Pride Agenda (www.prideagenda.org) and the American Civil Liberties Union's Lesbian & Gay Rights Project (www.aclu.org/lgbt).

Click on the next page for excerpts from the ruling written by Judge Robert S. Smith, and reports and commentaries from The New York Times.

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Excerpts from the Ruling: Written by Judge Robert S. Smith:
>#86 - Hernandez v Robles [July 6th, 2006]
First, the Legislature could rationally decide that for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born.
�
The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples� There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.

New York Nixes Gay Marriage
Richard Kim wrote in The Nation:
The court worked hard to avoid sounding homophobic in its decision, acknowledging that "there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past..."

Need a translation? Heterosexual New Yorkers are reckless, irresponsible sluts who breed without regard. Gays, however, must dutifully and deliberately pursue adoption, artificial insemination or "other technological marvels" and are thus more likely to raise kids in stable families. Consequently, gays don't need the "inducement" of marriage. Voila! And in just a few keystrokes, the stereotype of homosexual promiscuity is reversed -- though with the same anti-gay results.

Reports/commentaries in The New York Times

Editorial: Gay Marriage Setback
The ruling involved some twisted legal reasoning. Judges on both sides agreed that marriage is a fundamental right entitled to the highest level of constitutional protection. But the majority decision, written by Judge Robert S. Smith, an appointee of Gov. George Pataki, said this fundamental right applies only to heterosexuals. It said limiting marriage to opposite-sex couples could be based on a sense that children benefit from being raised by two natural parents, even without any hard evidence to show that.

The Judges: Pataki Gets a Decision He Wanted on the State's Highest Court
Judge Smith's opinion included passages that could spark arguments from both the left and the right. He referred to "the common-sense premise that children will do best with a mother and father in the home," and he also wrote that "there has been serious injustice in the treatment of homosexuals."

Neither his opinion nor a concurring one by Judge Graffeo contain the kind of strongly antigay language found in some state and federal court opinions in recent years.

For Gay Rights Movement, a Key Setback
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.