History > 2006 > USA > Gay rights (II-III)

Arthur and Larry Kramer, right, now fighting together for gay rights.

Erik Jacobs/The New York Times        NYT        June 24, 2006

Gay Brother, Straight Brother: It Could Be a Play        NYT

25.6.2006

http://www.nytimes.com/2006/06/25/nyregion/25kramer.html

Mass. judge

allows out-of-state gay couple to wed

Fri Sep 29, 2006

4:58 PM ET
Reuters
By Scott Malone

BOSTON (Reuters) - A Rhode Island lesbian couple on Friday won approval from a judge to marry in Massachusetts, paving the way for the first legal wedding of a same-sex couple from outside the only U.S. state where gay marriage is allowed.

The decision by Massachusetts Superior Court Justice Thomas E. Connolly means gay couples from states with ambiguous laws on gay marriage can marry in the state.

But the ruling reiterated that couples from states that clearly forbid gay marriage, including New York, could not marry in Massachusetts.

"We want our kids to grow up knowing that when something is unfair and something is discriminatory that they should fight and that it is possible to create change," said Wendy Becker, 45, of Providence, Rhode Island, the subject of the case.

She and her partner Mary Norton, 46, who have a 6-year-old daughter and a 3-year-old son, said they had not yet picked a wedding date.

Massachusetts Gov. Mitt Romney, a 2008 Republican presidential hopeful who has sought to prevent out-of-state same-sex couples from marrying in Massachusetts, urged the state's attorney general, Thomas Reilly, to appeal.

"The ruling has the effect of exporting same-sex marriage from Massachusetts to Rhode Island," Romney wrote to Reilly in a letter released to the media.

Conservative Christian groups have expressed concern that such marriages would turn the liberal New England state into America's gay-marriage capital.

But gay-rights advocates have campaigned to allow the practice since Massachusetts' highest court ruled in 2003 that it was unconstitutional to ban gay marriage. America's first same-sex marriages took place in May the following year.

Since then, more than 8,000 gay couples have wed.
 

'LAS VEGAS OF GAY MARRIAGE'

Friday's case was focused on a law passed in 1913 that bars out-of-state couples from marrying in Massachusetts if their own states fail to recognize the union.

Massachusetts lawmakers are due to vote in November -- after the state and national elections -- on whether to amend the constitution to ban gay marriage.

Kris Mineau, president of the Massachusetts Family Institute, which opposes same-sex marriage, said the ruling would muddy the waters for states.

"This creates a new level of legal chaos for regulators and lawmakers in ... any state that does not expressly forbid same-sex marriage," Mineau said. "It also furthers the notion of Massachusetts becoming the Las Vegas of gay marriage."

What remains to be seen, one expert said, is what the ruling will mean in practice for Rhode Islanders.

"What happens when they go back to Rhode Island? Will they be treated as if they're married? That's sort of the million-dollar question," said Lee Badgett, research director for the Williams Center for Sexual Orientation Law and Public Policy at UCLA Law School.

Becker and Norton said they had not yet told their daughter the news, but suspected she would be pleased.

"For the last two and a half years she has been picking out wedding dresses for herself," Becker said.

    Mass. judge allows out-of-state gay couple to wed, NYT, 30.9.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-09-29T205831Z_01_N29217990_RTRUKOC_0_US-RIGHTS-GAYS-MASSACHUSETTS.xml&WTmodLoc=Home-C5-domesticNews-3

Number of gay-friendly companies growing: study

Tue Sep 19, 2006 1:40 PM ET
Reuters
By Ellen Wulfhorst

NEW YORK (Reuters) - A record number of U.S. companies are trying to be gay-friendly, according to a survey released on Tuesday showing a growing number offering benefits and protections to gay and lesbian employees and customers.

An unprecedented 138 major U.S. companies scored 100 percent in a Corporate Equality Index compiled by the Human Rights Campaign, a Washington-based gay rights advocacy group.

That number was up from 101 companies last year and was 10 times higher than the 13 companies with that score in 2002, said the campaign, which conducts research and education programs and lobbies Congress.

Top companies offer such benefits as medical coverage and family leave to same-sex partners, prohibit discrimination against transgender workers or advertise in ways that respect gays, lesbians, bisexuals and transgender people, it said.

"More companies are not only implementing very comprehensive workplace policies that cover gay employees and their families but more companies are doing it faster and also seeking recognition for it," said Daryl Herrschaft, director of the group's workplace project.

Consistent high scorers since the group began the index in 2002 have been IBM Corp. IBM.N>, Citigroup, J.P. Morgan Chase & Co., Levi Strauss & Co and Nike Inc., he said.

"I think corporations are responding to a basic American value that has served them well for hundreds of years, that does not change with the political winds," Herrschaft said. "That is giving everybody equal opportunity at work, and making them feel like valued employees is not only the right thing but it's also good for the bottom line."

Research shows gay and lesbian consumers spend some $641 billion a year, he said. Also, gays and lesbians are likely to pay attention to workplace policies, are brand-loyal and have higher amounts of disposable income, Herrschaft said.

The campaign looked at 1,520 companies from such lists as the Fortune 1000 and Standard & Poor's 500 and culled enough information to rank 446 on its index.

Three companies scored zero -- Exxon Mobil Corp., Midwestern retailer Meijer Inc. and Plano, Texas-based Perot Systems technology consultants.

None offered minimal benefits or workplace protection for gay employees, the campaign said.

Representatives of Exxon Mobil, Meijer and Perot Systems did not return calls seeking comment.

    Number of gay-friendly companies growing: study, R, 19.9.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-09-19T174024Z_01_N18315405_RTRUKOC_0_US-LIFE-WORK.xml&WTmodLoc=Home-C5-domesticNews-2

Gay Groups Renew Drive Against ‘Don’t Ask, Don’t Tell’

September 14, 2006
The New York Times
By LIZETTE ALVAREZ

MADISON, Wis. —The three young men who tried to enlist at an Army recruiting station here appeared to be first-rate military material.

Two were college students, and the other was a college graduate. They had no criminal records. They were fit and eager to serve at a time when wars on two fronts have put a strain on American troops and the need for qualified recruits is great.

But the recruiter was forced to turn them away, for one reason: they are gay and unwilling to conceal it.

“Don’t judge me because of my sexuality,” said one of the three, Justin Hager, 20, a self-described Republican from a military family who has “a driving desire to join” the armed forces. “Judge me because of my character and drive.”

As the Pentagon’s search for soldiers grows more urgent, gay rights groups are making the biggest push in nearly a decade to win repeal of a compromise policy, encoded in a 1993 law and dubbed “don’t ask, don’t tell,” that bars openly gay people from serving in the military.

The policy, grounded in a belief that open homosexuality is damaging to unit morale and cohesion, stipulates that gay men and lesbians must serve in silence and refrain from homosexual activity, and that recruiters and commanders may not ask them about their sexual orientation in the absence of compelling evidence that homosexual acts have occurred.

The push for repeal follows years of legal setbacks, as well as discord among gay rights groups about how, or even whether, to address the issue. Now, rather than rely on the courts, advocates are focusing on drumming up support in towns across the nation, spotlighting the personal stories of gay former service members and pushing a Democratic bill in the House that would do away with the policy.

In August the gay rights group Soulforce opened a national campaign by recruiting openly gay people, including the three young men in Madison, who would have enlisted in the military if not for “don’t ask, don’t tell.” [As part of that campaign, two young people who were rejected as applicants on Tuesday at a recruitment center in Chicago returned there on Wednesday and engaged in a sit-in. They were arrested but later released without charges.]

The move to change the policy faces stiff resistance from the Pentagon and Republicans in Congress, who, in a time of war during a tough election year, have no longing for another contentious debate about gay troops. The House bill, introduced last year by Representative Martin T. Meehan, Democrat of Massachusetts, has picked up 119 supporters, but only five of them Republicans.

“In the near term, it has zero chance,” said Daniel Gouré, a vice president at the centrist Lexington Institute. “It’s hard to see how anyone would want to give potential opponents any ammunition to knock them off.”

A 2004 report by the Urban Institute concluded that at least 60,000 gay people were serving in the armed forces, including the Reserves and the National Guard. But since 1993, at least 11,000 members have been discharged for being openly gay, among them 800 in highly crucial jobs, according to the Government Accountability Office, Congress’s investigative arm.

For all of that, gay rights groups, gay veterans and some analysts say much has changed since the policy was adopted. A Gallup poll in 2004 found that 63 percent of respondents favored allowing gay troops to serve openly, and a similar survey, by the Pew Research Center this year, put the number at 60 percent; those majorities did not exist in 1993. Young people in particular now have more tolerant views about homosexuality.

In addition, 24 foreign armies, most notably those of Britain and Israel, have integrated openly gay people into their ranks with little impact on effectiveness and recruitment. In Britain, where the military was initially forced to accept gay troops by the European Court of Human Rights, gay partners are now afforded full benefits, and the Royal Navy has called on a gay rights group to help recruit gay sailors.

The new debate on “don’t ask, don’t tell” also coincides with multiple deployments that are being required of many American troops by a military that has lowered its standards to allow more high school dropouts and some convicted criminals to enlist.

“Would you rather have a felon than a gay soldier?” said Capt. Scott Stanford, a heterosexual National Guard commander of a headquarters company who returned from Iraq in June. “I wouldn’t.”

Lt. Gen. Daniel W. Christman, retired, former superintendent at West Point and onetime assistant to the chairman of the Joint Chiefs of Staff, said both the British experience and the shifts in attitudes at home would cause the American armed forces to change, though slowly.

“It is clear that national attitudes toward this issue have evolved considerably in the last decade,” said General Christman, now a senior vice president at the United States Chamber of Commerce. “This has been led by a new generation of service members who take a more relaxed and tolerant view toward homosexuality.”

In fact, a growing number of gay service members have told advocacy groups that fewer heterosexual troops are making homosexuality an issue. In some cases, they say, commanders look the other way when someone is suspected of being gay or even avows it, especially if that service member is valuable. Since the war in Afghanistan began in 2001, discharges of openly gay members have fallen by 40 percent.

“People are really blasé about the issue,” said Tim Smith, 24, a former marine who was discharged last year after a civilian chaplain, told of Mr. Smith’s homosexuality by congregants, alerted his commander.

Mr. Smith, who was married when he entered the Marine Corps in 2001, hopes to dispel a stereotype of the “promiscuous, night-going, street-dancing” gay man by telling his story and sharing the reaction that disclosure of his orientation elicited. That reaction was largely favorable. At the end, he said, his commander even told the commanding general in a letter that Mr. Smith would be impossible to replace.

On the other side of the divide, Elaine Donnelly, president of the conservative Center for Military Readiness, said permitting gay men and lesbians to serve openly would prompt recruitment rates to drop and disrupt unit cohesion, a linchpin in the decision to allow gay troops to serve only in silence.

“People in the military live in conditions of little or no privacy,” said Ms. Donnelly, who advocates a full ban on gay troops. “In conditions of forced intimacy, people should not have to expose themselves to other persons who are sexually attracted to them.”

Further, the policy lets unhappy troops, straight or gay, ditch the military service to which they have committed. About 85 percent of those discharged under the policy had declared a homosexual orientation, according to the Servicemembers Legal Defense Network, a gay rights watchdog; roughly half that number had volunteered the information simply to get out of the military.

“It lets people kind of get out of jail free,” said Aaron Belkin, director of the Center for the Study of Sexual Minorities in the Military, a research group at the University of California, Santa Barbara, that has sided with the effort to eliminate “don’t ask, don’t tell.”

Mr. Hager, the young man rejected at the recruiting center here in August along with John Alaniz, 25, and Derek House, 19, had expected that outcome. Joining the Soulforce campaign, he said, was about making a point.

He had tried to enlist in the Navy in high school, when his sexual orientation was still hidden, and had scored high in his aptitude test. His father had served in Vietnam, and his grandfather, a concentration camp survivor, had instilled in him a drive to safeguard America. But a broken ankle dashed his plans then.

This time it was his own words that sidelined him.

“I am openly homosexual,” he said, “and that opportunity won’t be there for me.”

    Gay Groups Renew Drive Against ‘Don’t Ask, Don’t Tell’, NYT, 14.9.2006, http://www.nytimes.com/2006/09/14/us/14gay.html?hp&ex=1158292800&en=7051664f5b08cb99&ei=5094&partner=homepage

Episcopal church summit fails to agree on gays

Wed Sep 13, 2006 2:06 PM ET
Reuters
By Michael Conlon

CHICAGO (Reuters) - A high-level meeting called by the Archbishop of Canterbury failed to find a way to stop the U.S. Episcopal church from splintering even further over gay issues, church leaders announced on Wednesday.

"We were unable to come to common agreement on the way forward," said 11 bishops representing differing views on the volatile issues after a two-day meeting in New York.

The summit was called after seven U.S. dioceses asked to be removed from the jurisdiction of the U.S. church leadership. They suggested being placed under oversight elsewhere, perhaps a Latin American or an African bishop who shares their opposition to the 2003 consecration of the church's first gay bishop and the blessing of same-sex unions.

Archbishop of Canterbury Rowan Williams, who called the New York meeting and sent a top emissary to it, suggested in July that the solution for America's 2.4 million Episcopalians and other liberal churches might be a "two-tier" church. Some churches under his plan would have "associate" or something less than full membership in the communion.

The bishops said they had "confronted the depth of the conflicts that we face" but "we could not come to consensus on a common plan to move forward to meet the needs of the dioceses that issued the appeal for (alternative oversight)."

Their statement said the "level of openness and charity in this conference allow us to pledge to hold one another in prayer and to work together until we have reached the solution God holds out for us."

Williams issued a statement from London welcoming the "frank and honest" tone of the New York meeting which he said offered "signs of hope for the future."

CHURCH 'BROKEN'

But Bishop Robert Duncan of Pittsburgh, a meeting participant and moderator of the conservative, 200,000-member Anglican Communion Network, said "this is the first real admission that the church is broken in two parts, both of which claim to be the Episcopal church."

He told Reuters the worldwide Anglican primates would take up the oversight question in a February meeting, and he predicted that a "staggeringly high" number of Episcopalians could eventually align with a different Anglican leadership.

The 77-million-member Anglican Communion, a loose federation of national churches, has struggled since 2003 to hold together its liberal minority and the conservative majority, mostly in Africa, which vigorously opposed the naming Gene Robinson, an open homosexual, as bishop of New Hampshire.

Robinson became the first bishop known to be in an openly gay relationship in more than 450 years of Anglican history.

The Anglican leadership had been pressuring the U.S. church to promise not to consecrate any more gay bishops. At its meeting in June, the Episcopal Church adopted a non-binding resolution that fell well short of a full promise.

It called on those in authority "to exercise restraint" by not consecrating any future bishops "whose manner of life presents a challenge to the wider church and will lead to further strains on communion."

The U.S. church at the same meeting chose Nevada Bishop Katharine Jefferts Schori, who backed the Robinson elevation, as its next presiding bishop. When installed later this year she will be the first woman to head any branch in the Anglican church.

    Episcopal church summit fails to agree on gays, R, 13.9.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-09-13T180618Z_01_N13432312_RTRUKOC_0_US-RELIGION-EPISCOPALS.xml&WTmodLoc=Home-C5-domesticNews-3

Some parts of military still hostile to gays

Sun Aug 6, 2006 9:47 AM ET
Reuters
By Kristin Roberts

WASHINGTON (Reuters) - Gays in the U.S. military face regular hostility on some bases and ships where commanders fail to prohibit harassment more than a decade after the "Don't Ask, Don't Tell" law was enacted, although seeds of greater tolerance may be taking root, advocates and witnesses report.

While some leaders have created environments where harassment is not tolerated, others have not and the evidence, according to witnesses, is both verbal and visual.

On the Navy's USS Theodore Roosevelt aircraft carrier, for example, anti-gay statements and jokes are on display and have been incorporated into a video about the F-14 Tomcat fighter aircraft, recently shown to reporters on the carrier.

Pilots on the Roosevelt sported T-shirts, also shown to reporters including this Reuters correspondent, that said, "I'm a Tomcat guy and you're a homo." The commander of the fighter squadron, in fact, wore the shirt.

"The line between that and threats and violence can be quite thin," said Aaron Belkin, director of the Center for the Study of Sexual Minorities in the Military at the University of California-Santa Barbara.

Openly gay people are prohibited from serving in the U.S. military under a 1993 law known as "Don't Ask, Don't Tell." The military can't ask if a service member is gay, but those who say they are gay are discharged.

The U.S. military argues that banning gays from the military is critical to maintaining a unit's "cohesion," the trust among service members crucial to combat effectiveness.

Harassment of gays, however, is prohibited. The Pentagon, in a 2000 memo to the armed services and commanders, said "mistreatment, harassment and inappropriate comments or gestures" based on sexual orientation were not acceptable.

That followed a report from the Defense Department's inspector general that found 80 percent of service members surveyed had heard anti-gay comments and 37 percent had witnessed harassment against people thought to be homosexual.

CHANGING ENVIRONMENT?

The anti-gay displays aboard the Roosevelt should be seen as harassment, said Steve Ralls, communications director for the Service members Legal Defense Network, a group working to see the Don't Ask, Don't Tell law repealed.

"That type of behavior has real consequences," Ralls said, pointing to the anti-gay graffiti allowed at Fort Campbell in Kentucky before the 1999 murder of Pfc. Barry Winchell, thought to be a gay soldier.

In response to questions from Reuters, Navy Rear Admiral Denby Starling, commander of the Naval Air Force, U.S. Atlantic Fleet, said the anti-gay messages witnessed on the Roosevelt were "contrary to Navy policy and core values and have no place within Naval Aviation or the Navy."

"Immediately upon notification of your observations, Naval Aviation leadership engaged to take corrective action," he said in an e-mail. "Steps have been taken to ensure that the offending messages have been removed. Squadron and air wing leadership have been counseled regarding the inappropriate tone set by such messages and poor judgment demonstrated in allowing their display."

Starling said other steps would be taken and the incident would be used to reinforce policy across the force.

The University of California's Belkin said his research shows attitudes against allowing openly gay people to serve may be changing, especially among younger service members.

But he said pressure to conform in an organization that places heavy value on tradition could inhibit change, noting servicemen may be "socialized to act anti-gay."

The military has dismissed more than 11,000 people for Don't Ask, Don't Tell violations, Ralls said. According to the Pentagon's latest data, 726 people were dismissed in fiscal 2005, representing 0.3 percent of all discharges that year.

Derek Sparks was discharged in 2002 after 14 years in the Navy when he admitted he was gay amid an investigation into alleged homosexual activity. He denied committing the acts.

The former sailor, part of a group of plaintiffs in a suit against the Defense Department, said anti-gay remarks were tolerated in the Navy throughout his career. He hid his homosexuality because he wanted to serve, he said.

"I loved serving and I loved being in the military so much that it was a sacrifice I was willing to make," Sparks said.

    Some parts of military still hostile to gays, R, 6.8.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-08-06T134719Z_01_N04465611_RTRUKOC_0_US-RIGHTS-MILITARY-GAYS.xml&WTmodLoc=Home-C5-domesticNews-2

Washington Court Upholds Ban on Gay Marriage

July 27, 2006
The New York Times
By ADAM LIPTAK and TIMOTHY EGAN

In an angrily divided 5-to-4 decision, the Washington Supreme Court yesterday upheld a state law banning same-sex marriages.

The justices issued six opinions in the case, with some in the majority emphasizing that the Legislature remained free to extend the right to marry to gay and lesbian couples.

The four dissenting justices said the majority relied on speculation and circular reasoning to endorse discrimination.

Massachusetts remains the only state that sanctions same-sex marriages. New York’s highest court, by a vote of 4 to 2 earlier this month, upheld state laws limiting marriage to opposite-sex couples. The New Jersey Supreme Court is expected to rule soon on the legality of same-sex marriages there.

Legal scholars said the closeness of the Washington and New York decisions suggested that the legal status of same-sex marriages would remain unsettled and controversial. That alone, they said, represents a significant change in public and judicial attitudes.

When the Washington courts last addressed the question of same-sex marriage in 1974, by contrast, an appeals court unanimously voted against the plaintiffs and the State Supreme Court refused to hear the case.

“You’ve gone in 32 years from something that was more or less a slam dunk to where the court is almost evenly and very bitterly divided,” said William B. Rubenstein, a law professor at the University of California, Los Angeles, and author of “Sexual Orientation and the Law.” “The issue is in play.”

Opponents of same-sex marriage said yesterday’s decision demonstrated that the public and the courts remained opposed to altering the traditional definition of marriage.

“Today is a great day for marriage and the family,” said Mathew D. Staver, the chairman of Liberty Counsel, a group that opposes the legal recognition of same-sex marriages. “We are pleased that this latest attempt by the homosexual agenda to radically redefine our culture has been stopped dead in its tracks.”

The decision consolidated two cases in which state trial courts had struck down a 1998 state law prohibiting same-sex marriages. The cases were brought by 19 gay and lesbian couples seeking the right to marry or to have their marriages from other jurisdictions recognized. State and local laws in Washington protect people there from discrimination based on sexual orientation and provide some benefits to same-sex couples, but the state has no civil-union law.

Beth Reis, one of the plaintiffs, said the decision was a setback for her, her partner, Barbara Steele, and their four children.

“We are saddened that the court has said that my 28-year committed relationship and my children, grandchildren and great-grandchildren aren’t entitled to the same legal protections and obligations as other Washington families,” Ms. Reis said.

The controlling opinion in yesterday’s decision, signed by three justices, reversed the lower court’s, holding that the 1998 law, the Washington Defense of Marriage Act, was supported by rational reasons.

“Limiting marriage to opposite-sex couples,” Justice Barbara A. Madsen wrote in that opinion, “furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.”

In a dissent signed by three other justices, Justice Mary E. Fairhurst questioned the logic of that assertion. “Would giving same-sex couples the same right that opposite-sex couples enjoy injure the state’s interest in procreation and healthy child rearing?” Justice Fairhurst asked.

Justice Bobbe J. Bridge, also dissenting, equated the majority’s position with the endorsement of racial discrimination. The majority, Justice Bridge wrote, contended “that it is not our place to require equality for Washington’s gay and lesbian citizens.” Under that reasoning, she said, “there would have been no Brown v. Board of Education,” the 1954 United States Supreme Court school desegregation case.

Justice Madsen repeatedly emphasized the limited nature of the court’s ruling. All that was required for the 1998 law to pass constitutional muster, she wrote, was some rational basis.

“We see no reason, however,” Justice Madsen added, “why the Legislature or the people acting through the initiative process would be foreclosed from enacting the right to marry to gay and lesbian couples in Washington.”

The justices who signed the controlling opinion said they were sympathetic to the fact that “many day-to-day decisions that are routine for married couples,” including ones involving children, health care and death, “are more complex, more agonizing and more costly for same-sex couples.”

The decision seemed to invite targeted constitutional challenges to the denial of equal treatment to homosexual couples.

Jane Schacter, a law professor at Stanford, said the reaction to the 2003 decision of the Massachusetts Supreme Judicial Court legalizing same-sex marriage there might have left other courts gun-shy about making sweeping rulings.

“There is a real self-consciousness in this decision and the New York decision about the role of the courts,” Professor Schacter said. “We’ve traditionally looked to the courts to buck public opinion to defend liberty and equality, but we’re not seeing that here.”

Gary Randall, the president of the Faith and Freedom Network and Foundation, a Washington religious group, took the opposite view, saying the decision was “a decisive victory that upholds the values of the faith community.”

Two justices in the majority, James M. Johnson and Richard B. Sanders, took a harder line in opposing same-sex marriage in a concurring opinion. There is, Justice Johnson wrote, “a compelling governmental interest in preserving the institution of marriage.”

“This conclusion,” he continued, “may not be changed by mere passage of time or currents of public favor and surely not changed by courts.”

    Washington Court Upholds Ban on Gay Marriage, NYT, 27.7.2006, http://www.nytimes.com/2006/07/27/us/27gay.html?hp&ex=1154059200&en=a12efe7a97e6e4e6&ei=5094&partner=homepage

House G.O.P. Lacks Votes for Amendment Banning Gay Marriage

July 19, 2006
The New York Times
By KATE ZERNIKE

Correction Appended


WASHINGTON, July 18 — House Republicans failed Tuesday in an effort to pass a constitutional amendment banning same-sex marriage, part of a proposed “values agenda” that they hope will rally voters in midterm elections in November.

The vote was 237 to 187, with one member voting “present,” well short of the two-thirds majority needed to amend the Constitution.

The vote was largely symbolic because the Senate rejected a similar bill in May. But the amendment’s supporters said they were gaining in their efforts to define marriage as a relationship between a man and a woman, a move necessary to “safeguard the American family” and block “radical” judges from promoting same-sex marriage.

Democrats said such an amendment would enshrine hatred and discrimination in the nation’s founding document.

“The Constitution is for expanding rights, opportunities and aspirations,” said Representative Tammy Baldwin, Democrat of Wisconsin, who is a lesbian. “I want to see the day when I can connect with my family, my life partner of 10 years, through the same laws, the same obligations and rights as can straight Americans.”

The Democrats accused Republicans of raising the issue even as they ignored what the Democrats said were more pressing problems, including the war in Iraq, an expanding conflict in the Middle East, high gasoline prices and North Korean missile tests.

But Representative Jack Kingston, Republican of Georgia, said the marriage issue was “just as important and a top-tier issue as any of those.”

Another Georgia Republican, Representative Phil Gingrey, said support for traditional marriage “is perhaps the best message we can give to the Middle East and all the trouble they’re having over there right now.”

A House vote on a similar amendment before the 2004 elections was 227 to 186, and Republicans vowed they would continue to make gains.

“We will be tenacious because we believe marriage is worth standing for,” said Representative Marilyn Musgrave, Republican of Colorado, who sponsored the amendment.

But Democrats said it was unfair to deny rights to partners of the same sex.

“How does the existence of same-sex marriage discourage or retard heterosexual marriage?” asked Representative Barney Frank, Democrat of Massachusetts, who is gay, calling it “the most illogical argument I’ve ever heard.”

Mr. Frank and others on the Massachusetts delegation said the state’s social fabric had not unraveled in the two years since its highest court recognized a right to same-sex marriage, a decision that set off a nationwide battle against it.

“It’s had no effect on my marriage,” said Representative Jim McGovern, Democrat of Massachusetts, “except we get invited to more weddings.”



Correction: July 21, 2006

An article on Wednesday about a House vote on a proposed constitutional amendment banning gay marriage incorrectly rendered part of a statement by Representative Tammy Baldwin, a Wisconsin Democrat, who opposed the amendment. She said, “I want to see the day when I can protect my family, my life partner of 10 years, through the same laws, the same obligations and rights as can straight Americans.” She did not say she wanted to see the day when she could “connect with” her family and her life partner.

    House G.O.P. Lacks Votes for Amendment Banning Gay Marriage, NYT, 19.7.2006, http://www.nytimes.com/2006/07/19/washington/19marriage.html?ex=1154145600&en=644f29d4a19e7687&ei=5070

Proposal to Ban Same-Sex Marriage Renews Old Battles

July 11, 2006
The New York Times
By PAM BELLUCK

BOSTON, July 10 — Massachusetts, the only state in which same-sex marriage is legal, is bracing for a vociferous battle this week over a proposal to ban it.

At a constitutional convention on Wednesday, more than two years after the first gay and lesbian couples took their wedding vows, legislators will consider a proposed constitutional amendment to define marriage as solely between a man and a woman. If a quarter of the legislators approve it this year and once more before 2008, the amendment will be presented to voters in November 2008.

The outcome is hardly a foregone conclusion, and after last week’s sizable defeat for gay rights supporters in New York — a court ruling that the state’s Constitution does not require a right to same-sex marriage — what happens in Massachusetts is being watched closely.

“This is a potentially cataclysmic point in the history of this issue,” said Jeffrey M. Berry, a political scientist at Tufts. “There’s been such uncertainty around who had the votes and what the outcome would be that it’s heightened a lot of the anxiety.”

The amendment drive, sponsored by the Massachusetts Family Institute, a conservative public policy group, gathered 170,000 petition signatures, a record in the state. For the referendum to get on the ballot, the amendment must get the votes of at least 50 of the state’s 200 legislators this year and in another constitutional convention in 2007-8.

People on both sides say the amendment has a strong chance of getting 50 legislators’ votes in this state, where the largely Democratic legislature is heavily Catholic and not as overwhelmingly liberal as many outsiders think. Although the leaders of the House and the Senate are against the amendment, some rank-and-file members support it, while others oppose it but want citizens to get to vote on it.

“We’re very confident that we have the votes,” said Kristian M. Mineau, president of the Massachusetts Family Institute.

Arline Isaacson, co-chairwoman of the Massachusetts Gay and Lesbian Political Caucus, said a vote on Wednesday to approve the amendment “would be devastating” because gay advocates would then have to spend time and money fighting the issue for months, through elections for governor and the legislature in November and the next constitutional convention.

“We are facing a very serious threat to retaining our right to marry,” Ms. Isaacson said.

While gay rights advocates are lobbying legislators to vote no, they are also considering other strategies. One tactic is for legislators to spend all day on the 19 items before gay marriage on the agenda and then postpone the marriage amendment to a later session. Another strategy involves adjourning before the marriage amendment comes up, a move requiring at most 101 votes, not the 151 needed to defeat the amendment.

But adjourning could set off a tug of war with Gov. Mitt Romney, a Republican opponent of same-sex marriage who has been emphasizing his conservative views as he considers a run for president.

If the legislature adjourns, Mr. Romney could call it back into session. He cannot force legislators to vote on the measure, political scientists say, but can try to embarrass them by accusing them of shirking their responsibilities.

Mr. Romney renewed his call to put the amendment on the ballot at a recent State House appearance with the Boston archbishop, Cardinal Sean P. O’Malley.

“Is there anything more fundamental to the commonwealth and this country than the principle that the power is reserved for the people, that government is the servant, not the master?” the governor asked.

About 8,000 same-sex couples have married since their doing so became legal in May 2004, said Marc Solomon, campaign director of MassEquality, a group leading the anti-amendment effort. Polls of state residents since then have generally found that just over half of those surveyed support same-sex marriage, but about the same number want the amendment to go before voters.

Backers of the amendment are supported by the state’s bishops, and have lobbied legislators with meetings, phone calls, e-mail messages and newspaper and radio advertisements. “I’ve had legislators complain to me about the volume of e-mails, which is a good thing,” Mr. Mineau said. “It shows they are taking notice.”

Gay rights supporters asked Massachusetts’ highest court, which legalized same-sex marriage, to throw out the amendment on the grounds that citizens could not challenge a high court ruling. But on Monday, the court ruled unanimously that the amendment could be considered by the legislature.

Now, advocates of a right to same-sex marriage say they hope their lobbying efforts will pay off. Those efforts include a full-page advertisement in The Boston Globe on Monday signed by 165 of the state’s most prominent business and community leaders, including the owner of the New England Patriots and the heads of major hospitals and banks.

One signer, Ralph C. Martin II, a Republican former district attorney, said same-sex marriage was “a powerful, emotional issue for some people, certain constituencies, and there are good people who are just opposed to this.”

But Mr. Martin added: “I think at a certain point it’s important to recognize it as an issue that has been decided in the courts, and, you know, there’s been an open and complete discussion. I guess I’m one of several people who believe that we need to move on.”

MassEquality has also arranged meetings between same-sex couples and legislators and has enlisted couples and volunteers to go door to door in swing legislative districts asking people to sign postcards and call their legislators.

Jenni White, 41, of Holyoke, Mass., met last week with State Representative Michael Kane, a Democrat who has voted against same-sex marriage, telling him, “There’s been marriage for two years, and society hasn’t fallen apart at the seams.”

And on Saturday, Paul Meoni, 46, and Tom Kidd, 54, a married couple from Randolph, Mass., walked Nantasket Beach asking sunbathers and swimmers to sign postcards opposing the amendment. Most people signed, especially women, but one woman told Mr. Meoni, “Live the way you want, but marriage is out of the question.” Another muttered, “What is this world coming to?”

Mr. Meoni said he found those responses “disturbing,” but added, “We just have to keep moving on and find people that support us.”

Debate Reopened in California

By The New York Times

SAN FRANCISCO, July 10 — A California appeals court reopened the legal debate over same-sex marriage on Monday in a review of six cases that seeks to determine the constitutionality of a state law that defines marriage as a union between a man and a woman.

Arguments before a three-judge panel of the First District Court of Appeal focused on a need to retain the definition of marriage because of tradition. Same-sex couples said domestic partner laws did not provide the same protection as marriage.

Deputy Attorney General Christopher Krueger said the law did not discriminate against same-sex couples because they are granted equal rights as domestic partners. Therese Stewart, the chief deputy city attorney of San Francisco, called the dual approach discriminatory.

Katie Zezima contributed reporting for this article.

    Proposal to Ban Same-Sex Marriage Renews Old Battles, NYT, 11.7.2006, http://www.nytimes.com/2006/07/11/us/11gay.html

Massachusetts Court Backs Gay Marriage on Ballot

July 10, 2006
By THE ASSOCIATED PRESS
Filed at 10:19 a.m. ET
The New York Times

BOSTON (AP) -- The same court that made Massachusetts the first state to legalize gay marriage ruled Monday that a proposed constitutional amendment to ban future same-sex marriages can be placed on the ballot, if approved by the Legislature.

The ruling was the result of a lawsuit brought by gay-rights supporters who argued that Attorney General Tom Reilly was wrong to approve the question, saying that the state constitution bars any citizen-initiated amendment that seeks to reverse a judicial ruling.

In a unanimous decision, the Supreme Judicial Court said the constitution does not bar citizen initiatives from making prospective changes to the constitution, even if that effectively overrules the effect of a prior court decision, because that change would not be a reversal.

The state Legislature is expected to take up the question Wednesday during a constitutional convention.

Citizen-initiated ballot questions must be certified by the attorney general and then approved by two consecutive legislative sessions. Before the marriage question could be placed on the 2008 ballot, supporters would need to win the votes of 50 lawmakers -- 25 percent of the Legislature -- in two consecutive sessions.

Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders, said she was disappointed but knew it would be an uphill battle. She said the fight is not over.

''So now obviously the focus is going to turn to the Legislature, which has a chance on Wednesday during the constitutional convention to do the right thing and defeat this amendment,'' said Swislow, whose organization filed the lawsuit in January.

With a landmark 2003 ruling, the state's highest court cleared the way for same-sex marriages to begin in Massachusetts in May 2004. More than 7,000 gay couples have married since.

    Massachusetts Court Backs Gay Marriage on Ballot, NYT, 10.7.2006, http://www.nytimes.com/aponline/us/AP-Gay-Marriage.html

Georgia Court Upholds a Referendum Banning Same-Sex Marriage

July 7, 2006
The New York Times
By BRENDA GOODMAN

ATLANTA, July 6 — In a unanimous reversal of a lower court decision, six justices of the Georgia Supreme Court ruled Thursday that the state's 2004 ban against same-sex marriage was constitutional.

Seventy-six percent of Georgians who voted in a referendum in November 2004 supported the ban, but a Superior Court judge ruled in May that it violated the Georgia Constitution because the ballot question addressed more than one issue, including civil unions.

The Supreme Court ruling was expedited at the request of Gov. Sonny Perdue, a Republican, who had threatened to call a special legislative session if the court did not act on an appeal by August. Critics said it was a move to rally conservative voters for his re-election race.

"I'm delighted that they ruled unanimously in favor of the people of Georgia, that they clearly understood what they were voting for," Mr. Perdue said at a news conference.

Gay and civil rights groups had hoped the court would toss out the sweeping amendment because they said its dual purposes — to limit the definition of marriage as the union of a man and a woman and to refuse legal benefits and protections to same-sex couples in civil unions — were unfairly linked in the referendum. They said this forced voters who might have agreed with only one part to have to approve both.

Moreover, the section of the amendment dealing with those legal benefits and protections was not printed on the November 2004 ballot or posted at polling places. Voters could see only the section that limited marriage to a man and a woman.

The opinion came on the same day the New York State's highest court, the Court of Appeals, decided that the state had no legal obligation to recognize same-sex marriages.

"I was very disappointed," said Karla Drenner, a Georgia state representative who led the fight against the amendment here. "It's a very sad thing when the empire state of the South and the empire state of the North decide to discriminate on the same day."

Ms. Drenner, a Democrat, said, "I think the public was deceived here in Georgia."

The Georgia Supreme Court, however, ruled that voters had not been misled by the two-part question.

Justice Robert Benham, who wrote the court's opinion, found that the section on civil unions did not "address a different objective than that of the amendment as a whole," and thus did not violate state law. One of the court's seven justices, Harold D. Melton, did not participate in the ruling.

    Georgia Court Upholds a Referendum Banning Same-Sex Marriage, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/us/07georgia.html

The Mayor

Bloomberg Vows to Press for a Change in State Law

July 7, 2006
The New York Times
By DIANE CARDWELL

The issue of gay marriage is one that haunted Mayor Michael R. Bloomberg as he ran for re-election, with his Democratic opponents and gay-rights advocates criticizing him for appealing a court decision that could have allowed same-sex couples to marry in New York.

But yesterday, as the state's highest court essentially followed the reasoning of the city's Law Department and ruled that the State Constitution does not give gays the right to marry, Mr. Bloomberg said that he was working to devise a strategy to guarantee that right by law.

"I will personally campaign to change the law," he said at a news conference. "I've talked to some people in the gay community that want to get the law changed, and we've started to work on a strategy, but it will eventually mean trying to convince the people in the Legislature that they should change the law."

Though Mr. Bloomberg has a record of supporting gay rights, his reluctant journey to supporting gay marriage has been tinged with an ambivalence that has cost him some trust among advocates of the issue.

His support for gay causes goes back at least to his days running Bloomberg L.P., among the first media companies to offer benefits for domestic partners. As mayor, he has signed laws recognizing gay marriages and civil unions from other jurisdictions and adding transgendered people to those protected under the city's human rights law.

But for years he refused to express an opinion on gay marriage. In 2004 he told an audience of gay and lesbian journalists that he favored changing state law to legalize same-sex unions. But a few days later, while saying that civil unions should have the same protections as marriage, he shied away from further detailing his views, saying, "I've gone back and forth in my mind as to where I really stand, but I think everybody deserves to have the same rights."

It was not until last year that Mr. Bloomberg said he thought gay marriage should be legal, a position he announced as he explained the city's decision to appeal a state court ruling that opened the door to such marriages in New York. His explanation was that the appeal was necessary to clarify the scope of the law.

By authorizing that appeal, Mr. Bloomberg in some ways accelerated the push to change state law, an approach some advocates of same-sex marriage call a more lasting way to ensure the right to marry.

And though he has already convened a meeting of gay leaders to discuss strategies for pushing the change through Albany, it is not clear how central he will be.

"The strategy will now be determined, and it will be determined by leaders of the L.G.B.T. community," said City Council Speaker Christine C. Quinn, the city's highest-ranking openly gay official, referring to lesbians, gays, bisexuals and transgendered people. "We began to have some discussions about that strategy when we had breakfast at Gracie Mansion with the mayor, but that is really up to us now to come up with the strategy, and then to reach out to people like the mayor."

It remains to be seen how much Mr. Bloomberg wants to make the battle his own. His response to the ruling yesterday was muted, even as he cast it both as a vindication and a call to action. He spoke of the need to sway Albany legislators to change the law, but expressed little of the determination he has displayed on other issues. "If they do, that's great; and if they don't," he said, "that's what it will be."

    Bloomberg Vows to Press for a Change in State Law, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/nyregion/07bloomberg.html

Albany

Spitzer Says He Would Do What Pataki and Courts Have Not

July 7, 2006
The New York Times
By DANNY HAKIM

ALBANY, July 6 — Attorney General Eliot Spitzer said on Thursday that he would draft and propose legislation to legalize gay marriage in New York State if elected governor in November. His comments came after the State Court of Appeals deferred to the Legislature on the issue, leaving the fate of gay marriage in New York to elected officials.

Although the right of gay couples to marry has widespread support among Democrats, it has little chance in the Republican-led Senate, with the majority leader, Joseph L. Bruno, reiterating his opposition on Thursday.

Any possibility of changing the law in New York State could hinge on the ability of Democrats to overturn the 35-27 Republican majority in the Senate, a development that many in politics do not see as likely in November. Mr. Bruno, however, has been known to change his mind, and gay-rights advocates and lawmakers said his views on civil rights for gay people had shifted markedly during the nearly dozen years he has been majority leader.

Supporters of gay marriage rights in New York have often pinned their hopes on the courts to legalize such unions, perhaps mindful of the opposition of Gov. George E. Pataki. Now that the courts have rebuffed them, the effort to change the law through legislative means may gain new steam, particularly with Mr. Pataki leaving office.

Mr. Spitzer, who holds a commanding lead in opinion polls in the race for governor, restated his support even though his office had argued against gay marriage in its official capacity representing the executive branch.

"I believe same-sex marriage should be constitutional, should be legal, should be authorized statutorily," he said on Thursday. "I think in New York there is recognition that this is the right thing to do from a civil rights perspective, and whether that will be sufficient in both the Assembly and the Senate, we'll have to wait and see, but it is something I will draft and propose."

Mr. Spitzer's signal that he will actively back the legislation could help its prospects among Albany lawmakers, although many Republicans remain committed to defeating such legislation.

The Republican candidate for governor, John Faso, praised the court's ruling and said, "If elected governor, I will work to ensure that marriage remains a relationship between a man and a woman."

The Nassau County executive, Thomas R. Suozzi, Mr. Spitzer's Democratic challenger, said he did not support gay marriage, but hoped "we can come together to find other ways to provide gay and lesbians in long-term committed relationships the same economic rights and legal protections."

The measure is not even a foregone conclusion in the overwhelmingly Democratic Assembly, where gay marriage bills have stalled for several years, though approval there is far more likely than in the Senate.

"The Court of Appeals decision is going to put this issue on the front burner for the Legislature, so while there has not been a focused effort to move the bill out of committee in the past, that changed this morning," said Assemblyman Richard N. Gottfried of Manhattan, the sponsor of a gay marriage bill.

"I would suspect there would be a strong majority for the bill on the floor of the Assembly, but I don't know if anyone has done a head count," he added.

Advocates have been frustrated that the Assembly has not already passed legislation. "Their excuse has been they've been waiting on the courts," said Matt Foreman, executive director of the National Gay and Lesbian Task Force and the former executive director of the Empire State Pride Agenda, the main lobbying group for gay rights in the state.

"The reality is there has been no leadership on this issue, or very little," he said.

Bryan Franke, a spokesman for Speaker Sheldon Silver of the Assembly, said: "The speaker plans to take up the issue of gay marriage with his conference. He thinks it's premature to talk about the matter without first discussing it with the members of the Assembly."

But the main battleground would certainly be in the Senate, which has emerged as the unpredictable force in Albany as its Republican leadership courts more moderate voters in the efforts to remain in power.

"I am opposed to gay marriage because I believe in the sanctity of marriage between a man and a woman," Mr. Bruno said on Thursday.

But he has softened his stance considerably over the years. When he became majority leader in 1994, Mr. Bruno rescinded domestic partner benefits for Senate staff members and also repeatedly blocked hate crimes legislation from coming to a floor vote. But he later reinstated domestic partner benefits and supported hate crime legislation.

In 2002, he spoke out in favor of the long-stalled Sexual Orientation Nondiscrimination Act, known as Sonda, saying, "Maybe I have become more enlightened."

"I am going to vote for this legislation to express tolerance, antidiscrimination, and just to recognize that people have the right to live their lives as they see fit," he added at the time.

Senator Thomas K. Duane, a Manhattan Democrat who is gay, said of Mr. Bruno, "He has absolutely evolved in his thinking, and without his support, hate crimes, Sonda, would not have come to the floor."

"On the issue of marriage, he never made a commitment to me, but he never closed off a discussion, and he never tried to dissuade me," he added.

Mr. Foreman said Mr. Bruno had moved "180 degrees on his empathy for gay people, but he will not move before the Assembly does."

Political pressure, and money, should not be discounted.

While the Conservative Party has opposed gay marriage, gay donors have been flexing their financial muscle. Alan Van Capelle, the executive director of the Empire State Pride Agenda, said his group's political contributions grew from $40,000 two years ago to an expected $300,000 this year, including contributions to candidates and spending on voter outreach. Recipients have included Senator Michael A. L. Balboni, a Nassau County Republican, who has sponsored legislation supported by the gay-rights groups. The group has also been courting and receiving support from major union leaders.

"Undoubtedly, this is going to be a major debate that we are going to have to take up in the next session," said Senator Nicholas A. Spano of Yonkers, another Republican who has sponsored legislation supported by the gay rights groups in the past.

"There's no doubt this will be a difficult debate," said Mr. Spano, who said he supports domestic partnerships but has "not taken a position on gay marriage."

Karen James and Jennifer Medina contributed reporting for this article.

    Spitzer Says He Would Do What Pataki and Courts Have Not, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/nyregion/07albany.html

The Judges

Pataki Gets a Decision He Wanted on the State's Highest Court

July 7, 2006
The New York Times
By RICHARD PÉREZ-PEÑA

From the time he took office, Gov. George E. Pataki vowed to remake the state judiciary, calling it too liberal and too eager to usurp elected officials' powers. In his 12th and final year in office, yesterday's decision on gay marriage may be the most important step New York's highest court has taken in the direction the governor charted.

The Court of Appeals ruled that it was up to the Legislature, not the courts, to decide whether to allow same-sex unions. That was exactly the sort of conclusion that the governor, a Republican, has advocated under the banner of judicial restraint, in cases ranging from school financing to the death penalty.

And it was mostly his appointees who delivered it. Three judges chosen by Mr. Pataki and one named by his predecessor, Mario M. Cuomo, formed the majority in the 4-2 decision. One Pataki appointee did not take part, and the two dissenters were named by Mr. Cuomo, a Democrat.

People in both parties have wondered aloud what legacy Mr. Pataki can claim. He arrived as a fiscal conservative but presided over big increases in spending. His death penalty law was overturned. Almost five years after the World Trade Center was destroyed, the future of the ground zero rebuilding project remains questionable.

A more conservative judiciary is one thing Mr. Pataki will leave behind, especially at the Appellate Division, the intermediate appeals court. At the Court of Appeals, the transformation has arrived more slowly, in fits and starts.

The governor has been able to fill just four of the court's seven seats, whereas Mr. Cuomo had named all seven judges who sat on the bench when he left office. And the Cuomo appointees Mr. Pataki has been able to replace included relatively conservative judges.

"The Court of Appeals is largely a centrist court" that has changed over the last decade, "but not radically," said Stewart E. Sterk, a professor at the Benjamin N. Cardozo School of Law at Yeshiva University.

At times, the court plays the role Mr. Pataki intended for it — as it did yesterday — but the makeover is incomplete. He gained a majority on the court in early 2003 with his fourth appointment, but that did not guarantee that he would get his way. Five months later, the court ruled against him, 4 to 1, in finding that the state had not met its obligation to finance New York City schools, and the next year, on a 4-to-3 vote, it overturned the death penalty law the governor had signed.

Both times, a Pataki appointee, Judge Albert M. Rosenblatt, joined the judges named by Mr. Cuomo to form the majority. Judge Rosenblatt recused himself from the marriage case. His daughter, a lawyer, has argued in favor of gay marriage before the courts of several other states.

Chief Judge Judith S. Kaye, a Cuomo appointee, has often been able to pull together coalitions that included more conservative judges, "but that's been breaking down," said Vincent M. Bonventre, a professor at Albany Law School who studies the court. In the marriage case, she wrote an impassioned dissent, joined by Judge Carmen Beauchamp Ciparick.

Two Pataki appointees, Judge Victoria A. Graffeo and Judge Susan Phillips Read, had backgrounds in state government as aides to Republican officials, and they have been the most reliably conservative votes on the court, said Mr. Bonventre, who signed on to a brief in favor of the gay couples in the marriage case. He said the other two, Judge Rosenblatt and Judge Robert S. Smith, "have been more independent and unpredictable, especially in criminal cases, where they side with the defendants much more often."

Mr. Pataki will have a chance to put his stamp more firmly on the court in September, with the expiration of Judge George Bundy Smith's 14-year term. Judge Smith, a Cuomo appointee and the court's only black judge, is hoping to be reappointed. He is often described as the most liberal of the seven, but he joined the majority in ruling against gay marriage yesterday.

One striking feature of this Pataki court is the prominence of the newest judge, Robert Smith, who joined the bench two and a half years ago, after a career as a trial lawyer, replacing an earlier Pataki appointee.

He wrote the dissent when the court threw out the state's death penalty law. He wrote the majority decision when the court sided with the governor in a fundamental power struggle with the Legislature over who can write budget bills. And he wrote the majority opinion in yesterday's gay marriage ruling.

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.

"They are going out of their way to say they are not prejudiced, which you would not see in most states," said Joanna L. Grossman, a professor and associate dean at Hofstra University Law School, who has closely followed gay marriage cases around the country.

"I think it's a pretty conservative view that children need to have a mother and a father, but the New York court would not be considered that conservative in a lot of states."

    Pataki Gets a Decision He Wanted on the State's Highest Court, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/nyregion/07justices.html

News Analysis

For Gay Rights Movement, a Key Setback

July 7, 2006
The New York Times
By PATRICK HEALY

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. [Page A14.]

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 happen here.

"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 pending.

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 broken-home situations.

"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.

    For Gay Rights Movement, a Key Setback, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/nyregion/07gays.html?hp&ex=1152331200&en=c2a63bf5dad8cae5&ei=5094&partner=homepage

Reaction

Disappointed, Gay Couples Seem Resigned to Long Fight

July 7, 2006
The New York Times
By ANDREW JACOBS

So much for the rented yacht, the salsa band and the twilight ceremony in New York Harbor that would have celebrated the union of Alice Muniz and Oneida Garcia. The Court of Appeals decision yesterday that quashed immediate hopes for same-sex marriage also dashed the plans of thousands of gay and lesbian New Yorkers.

The platinum engagement rings will stay on their hands, but Ms. Muniz and Ms. Garcia must postpone the wedding they were planning.

"I can't tell you how disappointed we are," said Ms. Muniz, 33, a former city police officer who is raising two teenagers with Ms. Garcia, 36, a hotel manager. "In our eyes, we are married. It would have been nice if society could see us that way, too."

Their reaction was personal. But around the state, the ruling drew responses almost as intense from those whose lives it would not touch so directly. While gay men and women were disappointed and those who backed their cause were disheartened, those who oppose gay marriage hailed the decision.

Opponents — about a third of New Yorkers, according to recent polls — said the issue was not for appointed jurists but for the Legislature.

"Marriage predates American history, even recorded history, so it would have been a shame to see a panel of judges redefine marriage in a fundamental way," said Dennis Poust, a spokesman for the New York State Catholic Conference, which joined the case as a friend of the court.

Many opponents, like Gov. George E. Pataki, applauded the court, but the disappointed supporters tended to be more vocal. Civil libertarians and religious leaders joined gay men and women in protests in seven cities, among them Syracuse, Rochester and Buffalo. "Convicts can marry their pen pals, and although we've spent our lives together, we're being told our love doesn't count," said Curtis Woolbright, 39, a plaintiff in the case with his partner, Daniel Reyes, 32. "It's heartbreaking."

Some supporters said they would push the Legislature to make gay marriage legal and expected a long fight, noting that the state's gay rights law took 31 years to enact.

"We're not going to give up," said Regina Cicchetti, a retired vocational counselor who has been with her partner, Susan Zimmer, for 36 years. "The only sad thing is that the right to marry may not happen in my lifetime, but you can be sure it will happen one day."

In the decision, the court said that the framers of the State Constitution intended marriage to apply to opposite-sex unions. The ruling went on to say that the logic behind this was reasonable, in the court's view, because an argument could be made that opposite-sex unions produce children and can be considered the best environment in which a child can be raised.

"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 Robert S. Smith wrote in his decision.

Lavi Soloway, a gay-rights lawyer in Manhattan, said he was particularly offended by those portions of the decision, saying that they denigrate same-sex parents by suggesting that it is preferable for children to grow up with a mother and a father. "It's a slap in the face to millions of gays and lesbians who are raising children," Mr. Soloway said.

Ms. Cicchetti said she had been hoping for legal sanction to validate her union and provide the benefits that heterosexual couples get by handing over $40 to the county clerk.

As they enter their 60's, Ms. Cicchetti and Ms. Zimmer, who met as college freshmen and live in Port Jervis, said they worried about inheritance, taxes and long-term-care insurance.

"We pay taxes and do everything that married couples do, but we don't get the protections they get," said Ms. Cicchetti. "I worry what happens if one of us goes into a nursing home."

The Rev. Tom Stiles, a spokesman for New Yorkers for Constitutional Freedoms, a Christian lobbying group, said the thousands of religious leaders and lay people on their e-mail alert list were thrilled by the ruling.

"There's a sense of relief and joy," he said, speaking from the group's offices in Rochester. If the decision had gone the other way, he said the organization had been prepared to prod the Legislature to pass a measure invalidating same-sex marriage. Still, he said yesterday's ruling did not mean the group could let its guard down.

"This phase of the battle is over, but the war is still going on," he said. "The other side will regroup and put pressure on the Legislature, and we'll be ready to push back."

    Disappointed, Gay Couples Seem Resigned to Long Fight, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/nyregion/07react.html

New York Judges Reject Any Right to Gay Marriage

July 7, 2006
The New York Times
By ANEMONA HARTOCOLLIS

Correction Appended


New York's highest court rejected yesterday a broad attempt by gay and lesbian couples across the state to win the right to marry under state law, saying that denying marriage to same-sex couples does not violate the State Constitution.

By a 4-2 majority, the Court of Appeals found that the State Legislature, in laws dating back nearly 100 years, intended to limit marriage to a union between a man and a woman, and that the Legislature had a rational basis for doing so.

The court said it would be up to lawmakers to decide whether same-sex marriage should be permitted, and the ruling had politicians and others mobilizing immediately for a fight in Albany. [Page B1.]

The majority decision, written 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.

"Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals," 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 barring gay marriage was tantamount to barring interracial marriage, as laws formerly did.

"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 viewed the decision as a setback, though it was not unexpected. "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.

The ruling was hailed by many others, including Gov. George E. Pataki, who said the decision was the "right one," because marriage between a man and a woman had been the law of the state "for more than 200 years."

Mr. Pataki, who is in the final year of his third and last term, said that he would not sign a bill legalizing gay marriage if one were sent to him by the Legislature.

The Family Research Council, a conservative Christian lobbying group that had filed a "friend of the court" brief opposing gay marriage, issued a statement praising the judges in the majority for not "substituting their own social policy preferences" for those of "the people."

Alan Van Capelle, executive director of Empire State Pride Agenda, said, "Deep down we've been preparing for a defeat."

Mr. Van Capelle, whose organization is a lobbying group that focuses on gay rights, said it had taken 31 years for the state to pass a law prohibiting discrimination on the basis of sexual orientation, and added, "I promise the couples that it won't take 31 years."

The decision comes at a time when the country is deeply divided over the issue of gay marriage.

So far, 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. Cases involving gay marriage are pending in the high courts of New Jersey and Washington State.

The Georgia Supreme Court reinstated a ban on same-sex marriage yesterday, 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. Connecticut, too, permits civil unions of same-sex couples.

The plaintiffs in New York, 44 couples across the state in four lawsuits, argued that under the State Constitution, gay and lesbian couples have a right to equal treatment under the state's marriage laws. The current of the version of the Domestic Relations Law dates to 1909 and uses terms like "bride" and "groom."

The plaintiffs argued that anything less than marriage — civil union, for instance — might provide some of the same legally mandated benefits, but would relegate gay and lesbian couples to second-class citizenship.

"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 February 2005, Hernandez v. Robles, which was filed against the city clerk of New York, who issues marriage licenses, became the only one of the four cases to win in a lower court, and it was appealed by Mayor Michael R. Bloomberg, who at the time was facing a primary campaign for re-election. Yesterday's decision closely tracked the arguments raised by his corporation counsel and by lawyers for Eliot Spitzer, the attorney general.

Mayor Bloomberg, appearing with Governor Pataki at an unrelated event yesterday, declined to discuss the substance of the court's ruling, but said, as he has in the past, that he would "personally campaign to change the law."

In an unusual split for the Court of Appeals, two separate opinions were issued supporting the decision.

The one written by Judge Robert Smith, a Pataki appointee, was signed by two other judges, Susan Phillips Read, another Pataki appointee, and George Bundy Smith, who was appointed by Mario M. Cuomo, a Democratic governor, and who is seeking reappointment in September.

The second majority opinion, written by Judge Victoria A. Graffeo, a Pataki appointee, upheld the Smith opinion but seemed to distance itself from its sociological arguments that the purpose of the marriage law was to promote families with children.

"Marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing," Judge Graffeo said, in a 22-page concurrence.

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. He has a daughter, Elizabeth L. Rosenblatt, who has participated as a lawyer in similar cases in other states.

In the majority opinion, Judge Smith said that because same-sex marriage was not deeply rooted in history and tradition, barring it did not violate fundamental rights and liberties.

The majority decision argued that any comparison with anti-miscegenation laws — overturned by the United States Supreme Court in 1967 — was flawed. "Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil," the opinion said. In contrast, the opinion said, "The idea that same-sex marriage is even possible is a relatively new one."

On the issue of child-rearing, the majority wrote that despite scientific advances, most children are still born to heterosexual couples, so the state has a legitimate interest in promoting their marriages over others.

"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," the judges said.

Judge Kaye, however, argued in her dissent that the historical and cultural understanding of marriage did not justify discrimination.

"Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional," the chief judge said. "As history has well taught us, separate is inherently unequal."

Judge Kaye, who has served on the court for 13 years, said that the understanding of marriage had evolved. Until well into the 19th century, for instance, wives were considered the property of their husbands and married women could not own property or enter into contracts, she noted.

"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 wrote.

She said that while encouraging opposite-sex couples to marry could be good for the welfare of children, denying marriage to same-sex couples did not further that desire in any way.

"The state's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses," Judge Kaye wrote.

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.

"Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage — purportedly to encourage other people to procreate," she wrote.

Judge Kaye's dissent was a departure from the dry legal language of the main decision. She noted that the plaintiffs represented a cross-section of ordinary New Yorkers, including a police officer, a doctor, a teacher and an artist, who wanted "only to live full lives, raise their children, better their communities and be good neighbors."

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."

Diane Cardwell, Sarah Garland and Danny Hakim contributed reporting for this article.


Correction: July 11, 2006

A front-page article on Friday about a decision by the New York State Court of Appeals that rejected any right to same-sex marriage misstated the number of years Chief Judge Judith S. Kaye has served on the court. It is 23, not 13. (She has been chief judge for 13 years.)

    New York Judges Reject Any Right to Gay Marriage, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/nyregion/07marriage.html?ex=1154145600&en=aa56c5402dd822bc&ei=5070

New York Judges Reject Any Right to Gay Marriage

July 7, 2006
The New York Times
By ANEMONA HARTOCOLLIS

New York's highest court rejected yesterday a broad attempt by gay and lesbian couples across the state to win the right to marry under state law, saying that denying marriage to same-sex couples does not violate the State Constitution.

By a 4-2 majority, the Court of Appeals found that the State Legislature, in laws dating back nearly 100 years, intended to limit marriage to a union between a man and a woman, and that the Legislature had a rational basis for doing so.

The court said it would be up to lawmakers to decide whether same-sex marriage should be permitted, and the ruling had politicians and others mobilizing immediately for a fight in Albany.

The majority decision, written 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.

"Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals," 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 barring gay marriage was tantamount to barring interracial marriage, as laws formerly did.

"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 viewed the decision as a setback, though it was not unexpected. "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.

The ruling was hailed by many others, including Gov. George E. Pataki, who said the decision was the "right one," because marriage between a man and a woman had been the law of the state "for more than 200 years."

Mr. Pataki, who is in the final year of his third and last term, said that he would not sign a bill legalizing gay marriage if one were sent to him by the Legislature.

The Family Research Council, a conservative Christian lobbying organization, which had filed a "friend of the court" brief opposing gay marriage, issued a statement praising the judges in the majority for not "substituting their own social policy preferences" for those of "the people." The statement described the court's decision as "a shining example" for other courts across the nation.

Alan Van Capelle, executive director of Empire State Pride Agenda, said, "Deep down we've been preparing for a defeat."

Mr. Van Capelle, whose organization is a lobbying group that focuses on gay rights, said it had taken 31 years for the state to pass a law prohibiting discrimination on the basis of sexual orientation, and added, "I promise the couples that it won't take 31 years."

The decision comes 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.

So far, 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. Cases involving gay marriage are pending in the high courts of New Jersey and Washington State.

The Georgia Supreme Court reinstated a ban on same-sex marriage yesterday, 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. Connecticut, too, permits civil unions of same-sex couples.

The plaintiffs in New York, 44 couples across the state in four lawsuits, argued that under the State Constitution, gay and lesbian couples have a right to equal treatment under the state's marriage laws. The current of the version of the Domestic Relations Law dates to 1909 and uses terms like "bride" and "groom."

The plaintiffs argued that anything less than marriage — civil union, for instance — might provide some of the same legally mandated benefits, but would relegate gay and lesbian couples to second-class citizenship.

"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 February 2005, Hernandez v. Robles, which was filed against the city clerk of New York, who issues marriage licenses, became the only one of the four cases to win in a lower court, and it was appealed by Mayor Michael R. Bloomberg, who at the time was facing a primary campaign for re-election. Yesterday's decision closely tracked the arguments raised by his corporation counsel and by lawyers for Eliot Spitzer, the attorney general.

Mayor Bloomberg, appearing with Governor Pataki at an unrelated event yesterday, declined to discuss the substance of the court's ruling, but said, as he has in the past, that he would "personally campaign to change the law."

In an unusual split for the Court of Appeals, two separate opinions were issued supporting the decision. The one written by Judge Robert Smith, a Pataki appointee, was signed by two other judges, Susan Phillips Read, another Pataki appointee, and George Bundy Smith, who was appointed by Mario M. Cuomo, a Democratic governor, and who is seeking reappointment in September.

The second majority opinion, written by Judge Victoria A. Graffeo, a Pataki appointee, upheld the Smith opinion but seemed to distance itself from its sociological arguments that the purpose of the marriage law was to promote families with children.

"Marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing," Judge Graffeo said, in a 22-page concurrence.

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. He has a daughter, Elizabeth L. Rosenblatt, who has participated as a lawyer in similar cases in other states.

In the majority opinion, Judge Smith said that because same-sex marriage was not deeply rooted in history and tradition, barring it did not violate fundamental rights and liberties.

The majority decision argued that any comparison with anti-miscegenation laws — overturned by the United States Supreme Court in 1967 — was flawed. "Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil," the opinion said. In contrast, the opinion said, "The idea that same-sex marriage is even possible is a relatively new one."

On the issue of child-rearing, the majority wrote that despite scientific advances, most children are still born to heterosexual couples, so the state has a legitimate interest in promoting their marriages over others.

"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," the judges said.

Judge Kaye, however, argued in her dissent that the historical and cultural understanding of marriage did not justify discrimination.

"Simply put, a history or tradition of discrimination — no matter how entrenched — does not make the discrimination constitutional," the chief judge said. "As history has well taught us, separate is inherently unequal."

Judge Kaye, who has served on the court for 13 years, said that the understanding of marriage had evolved. Until well into the 19th century, for instance, wives were considered the property of their husbands and married women could not own property or enter into contracts. she noted.

"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 wrote.

She said that while encouraging opposite-sex couples to marry could be good for the welfare of children, denying marriage to same-sex couples did not further that desire in any way.

"The state's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses," Judge Kaye wrote.

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.

"Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage — purportedly to encourage other people to procreate," she wrote.

Judge Kaye's dissent was a departure from the dry legal language of the main decision. She noted that the plaintiffs represented a cross-section of ordinary New Yorkers, including a police officer, a doctor, a teacher and an artist, who wanted "only to live full lives, raise their children, better their communities and be good neighbors."

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."

Diane Cardwell, Sarah Garland and Danny Hakim contributed reporting for this article.

    New York Judges Reject Any Right to Gay Marriage, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/nyregion/07marriage.html

Excerpts

Excerpts from the Ruling

July 6, 2006
The New York Times

From the Majority Opinion

Written by Judge Robert S. Smith.

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. It thus could choose to offer an inducement - in the form of marriage and its attendant benefits - to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. …el4 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. It is obvious that there are exceptions to this general rule - some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes - but the Legislature could find that the general rule will usually hold. …

In sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. Plaintiffs have not persuaded us that this long accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn. …

Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. …

From the Minority Opinion

Written by Chief Judge Judith S. Kaye.

The court concludes, however, that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty. But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. …

Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them. …el4 The claim that marriage has always had a single and unalterable meaning is a plain distortion of history. In truth, the common understanding of "marriage" has changed dramatically over the centuries. …

The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it. …

Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the state, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone. …

Of course, there are many ways in which the government could rationally promote procreation - for example, by giving tax breaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave for parents. Any of these benefits - and many more - might convince people who would not otherwise have children to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage. …

The state plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare. …

The state's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses. …

It is uniquely the function of the judicial branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today's decision as an unfortunate misstep.

    Excerpts from the Ruling, NYT, 7.7.2006, http://www.nytimes.com/2006/07/06/nyregion/07excerptsweb.html



 

New York's Highest Court Set to Rule on Gay Marriages

July 4, 2006
The New York Times
By ANEMONA HARTOCOLLIS

In what one legal scholar called a contest between judicial hearts and minds, parsing of legal texts and private sympathies, New York's highest court is expected to rule Wednesday on whether to permit gay and lesbian marriages in the state.

There are several directions the Court of Appeals could take, lawyers said. The most sweeping would be a clear affirmation of a constitutional right of same-sex couples to marry, which would make New York the second state in the nation after Massachusetts to allow such marriages. In that case, the court could order the Legislature to rewrite the state's marriage law.

Stephen Gillers, a law professor at New York University, suggested that a majority of the six judges deciding the case — a seventh recused himself — are personally sympathetic to what the plaintiffs are asking for. But the issue, he said, will be how they read New York State's marriage law, the state constitution, and legal precedents, which are all different from those in Massachusetts.

"The question will be where will their brains be," Mr. Gillers said this week. "The question is whether they can intellectually do what I think intuitively and emotionally they'd like to do."

Supporters have been waiting eagerly for the decision.

"On the one hand, if there is a victory in the case, it would be a great and historic day," said Roberta A. Kaplan, one of the lawyers who argued for gay marriage before the high court in May. "On the other hand, I'm sure we'll all look at this issue five years from now and say, what was the big deal? Because there is a clear line of authority now moving in our direction." One "friend of the court" brief arguing against same-sex marriage said that opposition "is not rooted in animus towards gay and lesbians," but in the conviction that "only opposite-sex unions can both create the next generation and connect those children to the mother and father who made them."

The court could also take a more administrative tack, by simply ruling that words like "husband" and "wife" in the marriage code should be changed to gender-neutral words like "spouse."

The decision expected today would combine four different lawsuits, representing 44 gay and lesbian couples around New York State. The highest-profile case is Hernandez v. Robles, in which five couples are suing New York City's clerk, who issues marriage licenses. It is the only case in which plaintiffs have won a victory in the lower courts.

In that case, state Supreme Court Justice Doris Ling-Cohan ruled in February 2005 that state marriage law violated the due-process and equal-protection clauses of the state constitution. The appellate division overturned her decision last December, saying that it was up to the Legislature to change the state's traditional views of marriage and family. That court called marriage between biological parents, "the optimal situation for child-rearing."

Neither side in the case was willing to handicap the outcome, but lawyers noted that the Court of Appeals has a long history of trailblazing, going back to a golden age in the 1920's under Chief Judge Benjamin Cardozo.

Even now that Gov. Pataki, a Republican, has appointed four of its seven members, the court is still seen as one of the more progressive in the country, legal experts said.

Professor Gillers said that on issues that can be perceived as liberal or conservative, such as gay rights and the death penalty, the New York court's "center of gravity" is about the same as that of the high court in Massachusetts, the Supreme Judicial Court.

That court ruled in 2003 that it was unconstitutional to deny same-sex couples the right to marry. Thousands of gay and lesbian couples have been married there since 2004.

The New York court could also reach a compromise position by finding that the current law is a violation of equal protection, but ruling that establishment of civil union, rather than full-scale marriage, for same-sex partners would be enough to cure the violation.

Even if the court rules that gay and lesbian New Yorkers do not have a state constitutional right to marry their partners, advocates said the litigation — and the attention it has attracted — have moved public opinion closer to their position on the issue.

Polls show a slight rise in the percentage of New Yorkers who favor allowing gay marriage — to just over half — in the last three years, while the percentage opposing it has decreased sharply to just over one-third, advocates said.

The plaintiffs have received friend-of-the-court briefs supporting their position from such establishment groups as the New York City Bar Association, the American Academy of Matrimonial Lawyers, dozens of New York law professors (including Mr. Gilles), the American Psychological Association, the NAACP Legal Defense and Education Fund, and a number of religious organizations including Episcopal, United Methodist, Presbyterian, United Church of Christ, Unitarian and Reform Jewish groups.

Friend-of-the-court briefs opposing same-sex marriage came from James Q. Wilson, professor emeritus at the University of California, among other public policy, legal and family scholars; the New York State Catholic Conference; the Family Research Council, a lobbying group; and the New York State Conservative Party, among others, according to New York City's corporation counsel.

The Wilson brief argues that as the connection between marriage and procreation weakens, communities face higher rates of poverty, crime, welfare dependency, child abuse, unwed teenage motherhood, education failures and other social problems.

A compromise ruling establishing civil union but not marriage would fall short of what the plaintiffs want. They argue that such an arrangement relegates gay and lesbian couples to second-class citizenship — an argument the Massachusetts court agreed with.

Three of the six judges sitting in the New York case were appointed by a Democratic governor, Mario Cuomo, and three by Governor Pataki, a Republican, suggesting an even split between liberals and conservatives. But legal scholars said the court has a history of independence, and tie votes have been very rare. This case is expected to follow that pattern.

One of the judges, George Bundy Smith, a Cuomo appointee, is seeking reappointment in September. But lawyers said he is unlikely to pull any punches for the sake of reappointment, because as a liberal member of the court, in conflict with Gov. Pataki's goal of solidifying his conservative majority, his chances of remaining on the court may be small anyway.

In an indication of its progressive tradition, the New York court overturned the state's anti-sodomy statute in 1980, more than two decades before the United States Supreme Court struck down Texas's anti-sodomy laws, in the case of Lawrence v. Texas, in 2002. Four years ago, New York's court struck down the state's death penalty, albeit on a technicality in the law.

"So that just shows the very disparate views of culture and tradition in this state, as opposed to the rest of the country," Ms. Kaplan said.

Even though the plaintiffs in New York are raising state constitutional issues rather than federal ones, the Supreme Court's Texas ruling could have an impact on New York's gay marriage ruling.

During oral arguments, one of the New York judges, Robert S. Smith, asked whether the plaintiffs agreed with Justice Antonin Scalia in Lawrence v. Texas. In his dissent, Justice Scalia wrote that by removing the moral justification for anti-sodomy laws, the Supreme Court had opened the way for recognition of same-sex marriage.

    New York's Highest Court Set to Rule on Gay Marriages, NYT, 4.7.2006, http://www.nytimes.com/2006/07/04/nyregion/04cnd-marriage.html?hp&ex=1152072000&en=0fa54edb3b734955&ei=5094&partner=homepage

Court Overturns Arkansas Ban on Same-Sex Foster Parents

June 30, 2006
By THE ASSOCIATED PRESS
The New York Times

LITTLE ROCK, Ark., June 29 (AP) — Arkansas cannot bar gay men and lesbians from becoming foster parents because there is no link between their sexual orientation and a child's well-being, the State Supreme Court ruled Thursday.

On a vote of 7 to 0, the justices agreed with a lower court judge that the state's Child Welfare Agency Review Board, which adopted the ban in 1999, had improperly tried to regulate public morality and had violated the separation of powers between the executive branch and the General Assembly, Arkansas's legislature.

In approving the policy, the board had said children should be in traditional two-parent households headed by a man and a woman because, it said, they would be more likely to thrive. Four Arkansas residents, represented by the American Civil Liberties Union, filed suit claiming discrimination and privacy violations against gay men and lesbians who otherwise qualified as foster parents.

The justices agreed Thursday, saying the ban was "an attempt to legislate for the General Assembly with respect to public morality."

"There is no correlation between the health, welfare and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual," Associate Justice Donald L. Corbin wrote in the opinion.

In addition, the court said, the testimony of a member of the child welfare board demonstrated that "the driving force behind adoption of the regulations was not to promote the health, safety and welfare of foster children but rather based upon the board's views of morality and its bias against homosexuals."

The court also said that contrary to what the state had argued, being raised by homosexuals did not cause academic or sexual identity problems.

Julie Munsell, a spokeswoman for the Arkansas Health and Human Services Department, which oversees the child welfare board, said that the ban had not been applied since the lower court ruling in 2004 and that the plaintiffs had not sought foster-parent status since then.

    Court Overturns Arkansas Ban on Same-Sex Foster Parents, NYT, 30.6.2006, http://www.nytimes.com/2006/06/30/us/30gays.html

Anglican Plan Threatens Split on Gay Issues

June 28, 2006
The New York Times
By LAURIE GOODSTEIN and NEELA BANERJEE

In a defining moment in the Anglican Communion's civil war over homosexuality, the Archbishop of Canterbury proposed a plan yesterday that could force the Episcopal Church in the United States either to renounce gay bishops and same-sex unions or to give up full membership in the Communion.

The archbishop, the Most Rev. Rowan Williams, said the "best way forward" was to devise a shared theological "covenant" and ask each province, as the geographical divisions of the church are called, to agree to abide by it.

Provinces that agree would retain full status as "constituent churches," and those that do not would become "churches in association" without decision-making status in the Communion, the world's third largest body of churches.

Conservatives hailed the archbishop's move as an affirmation that the American church stepped outside the bounds of Christian orthodoxy when it ordained a gay bishop three years ago.

The archbishop wrote, "No member church can make significant decisions unilaterally and still expect this to make no difference to how it is regarded in the fellowship."

Leaders of the Episcopal Church — the Communion's American province, long dominated by theological liberals — sought to play down the statement's import, saying it was just one more exchange in a long dialogue they expected to continue within the Communion.

The archbishop said his proposal could allow local churches in the United States to separate from the Episcopal Church and join the American wing that stays in the Communion. But that process could take years, and some American parishes are already planning to break from the Episcopal Church. Entire dioceses may announce their intention to depart, as soon as today.

The 38 provinces that make up the global Communion have been at odds since 2003, when the Episcopal Church ordained Bishop V. Gene Robinson, a gay man who lives with his partner, as bishop of the diocese of New Hampshire.

The archbishop's statement is the most solid official step yet in a long march toward schism. Twenty-two of the 38 provinces had already declared their ties with the American church to be "broken" or "impaired," but until now the Communion had hung together, waiting for guidance from the Archbishop of Canterbury. He is considered "the first among equals" in the Communion but does not dictate policy as the pope does in the Roman Catholic Church.

For the proposal to be enacted would take at least half a dozen major church meetings spread out over at least the next four years, the Rev. Canon Kenneth Kearon, secretary general of the Anglican Communion, said in a telephone interview.

What should be included in a covenant could become the next focus of debate. The idea of a covenant was first proposed in the "Windsor Report," issued in 2004 by a committee commissioned by the archbishop. Canon Kearon said, "Many churches welcome the idea of a covenant, but they didn't particularly welcome the text that was proposed." He said he did not regard the archbishop's proposal as a step toward schism but as a means to clarify "identity and common decision-making procedures" in the Communion.

Church liberals said that any "covenant" would be crafted with the participation of the American church and other provinces that favored full inclusion of gay people.

"I think the archbishop takes a long view and underscores the fact that we are involved in a process rather than a quick fix," Presiding Bishop Frank T. Griswold of the Episcopal Church said in a telephone interview.

Several church officials in communication with the archbishop's office said he wrote his six-page communiqué, which he called a "reflection," after the close of the Episcopal Church's convention last Wednesday in Columbus, Ohio.

At the convention, the church fell short of the demands in the Windsor Report for an explicit apology and a full "moratorium" on ordaining gay bishops. Instead, the church approved a conciliatory statement encouraging American dioceses to refrain from ordaining gay bishops.

But the convention also offended the conservatives by electing a new presiding bishop, Katharine Jefferts Schori of Nevada, who has been an outspoken advocate of full inclusion for gay people and who allows gay union ceremonies in churches in her diocese.

Bishop Jefferts Schori, who takes office after Bishop Griswold retires in November, will represent the American church in meetings with the world's primates, some of whom do not approve of women as priests or bishops.

She said in an interview yesterday that she was heartened by Archbishop Williams's comments in the letter that he would not be able to mend rifts over sexuality single-handedly.

"There were expectations out there that he would intervene or direct various people and provinces to do certain things, and he made it quite clear that it's not his role or responsibility to do that," Bishop Jefferts Schori said.

The Anglican Communion has about 77 million members in more than 160 nations. Members in conservative provinces far outnumber those in the liberal provinces. The Episcopal Church has about 2.3 million members but contributes a disproportionate amount to Anglican Communion administration, charities and mission work. The Anglican Communion Network, a group leading the conservative response, said it had 200,000 members last year.

The archbishop's proposal was greeted with satisfaction by conservative leaders in the United States, who had formed a powerful alliance with prelates in many of the provinces in Africa and in Asia, and in some parts of Latin America. The conservatives have insisted all along that it is the American church that destabilized the Anglican ship and should be pushed overboard if it will not relent.

The Rev. Canon David C. Anderson, president of the conservative American Anglican Council, said: "We really believe that the Episcopal Church wants to follow a course that takes it out of both Anglicanism and Christianity, as Christianity is historically known. So a two-tier approach looks good in theory."

Canon Anderson said the plan could be difficult in actuality, because many parishes and dioceses were ready to sever ties with the Episcopal Church now, years before the archbishop's plan for reorganization could take effect. He said that churches and dioceses had already asked to be put under the authority of bishops in Africa and Latin America and that many more would do so in coming months.

"The floodgates are starting to open," he said.

The division has already led to legal battles over church property. Under Episcopal Church bylaws, parish assets belong to the dioceses, but churches in some states have challenged that in court.

Archbishop Williams said in his statement, "The reason Anglicanism is worth bothering with is because it has tried to find a way of being a church that is neither tightly centralized nor a loose federation of essentially independent bodies."

But that decentralization will continue to be a cause of conflict unless it is addressed, he said, adding, "What our Communion lacks is a set of adequately developed structures which is able to cope with the diversity of views that will inevitably arise in a world of rapid global communication and huge cultural variety."

    Anglican Plan Threatens Split on Gay Issues, NYT, 28.6.2006, http://www.nytimes.com/2006/06/28/us/28episcopal.html?hp&ex=1151553600&en=c430e21d859b78d0&ei=5094&partner=homepage

    Related http://www.anglicancommunion.org/acns/articles/41/50/acns4161.cfm

Gay Brother, Straight Brother: It Could Be a Play

June 25, 2006
The New York Times
By ANEMONA HARTOCOLLIS

In his wrenching autobiographical play about AIDS in New York in the 1980's, Larry Kramer made his brother the face of evil in an uncaring world.

The conflict between the brothers in that play, "The Normal Heart," was the consummate coming-out story, a tale reflected in many families. The straight brother couldn't find it in his heart to renounce his gay sibling, yet couldn't wholeheartedly accept him as normal, either.

Their story came to define an era for hundreds of thousands of theatergoers.

More than 20 years after the play opened, Larry and Arthur Kramer are talking again. Their lives have trumped art. Their relationship has gone through a series of changes, and in the last decade, the brothers have become close collaborators on gay rights issues.

Last month, Arthur Kramer's law firm was among those arguing for gay marriage before New York State's highest court, and a decision in that case could come as soon as this week. His firm has spent countless hours of overtime working on other gay causes across the country, from adopting children to serving as scoutmasters.

How true was the fictional account of Kramer v. Kramer? Have times changed at the same pace as the brothers? In some ways, the arc of their relationship is, writ small, the arc of the culture war raging across the stage of American life and politics.

The changes didn't happen overnight, like a religious awakening. They happened slowly, almost imperceptibly.

"It was me learning through my activism and growth that being gay wasn't bad, and I wasn't going to let it be bad," Larry said. "And having to convince him and the world it wasn't bad, and him coming around."

Now, he said, "He and my lover are the two most meaningful people in my life."

For Arthur, the reconciliation came as he accepted that his brother was not going to change, and that being gay was a matter of biology, not choice or family dysfunction. "I was persuaded over time that there was nothing you could do about it, and it was my problem," Arthur said. "That's the way he is."


Ned: You can only find room to call yourself normal.

Ben: You make me sound like I'm the enemy.

— "The Normal Heart," by Larry Kramer


In the play, first produced at the Public Theater in 1985, Larry is Ned Weeks, the Cassandra of the nascent AIDS epidemic, and Arthur is Ben, his diffident brother, more concerned with building his $2 million house in Connecticut than with taking to the ramparts. Arthur recalls that Calvin Trillin, the humor writer and a friend of both brothers, once called "The Normal Heart," "the play about the building of your house."

Sitting in his living room the other day, with a majestic view of the Washington Square Arch, Larry, who found out in 1987 that he was H.I.V. positive, said he still gets "the shivers" from the scenes between the brothers, which he pronounces "the best written stuff in the play."

He is so fond of his alter ego that he uses Ned Weeks as his e-mail identity.

His brother and two lawyers from his brother's law firm joined him for the interview to talk about gay marriage and the family drama in "The Normal Heart," which Larry said was "true, all true."

Sinking into a black leather couch, Larry nestled his head against Arthur's shoulder. They still bicker affectionately over the smallest things, like how old they are.

"I'm nine and a half years older than Larry," said Arthur, who is 79.

"Eight and a half," corrected Larry, who is turning 71 today.

How did they get to this point? "You have to take it back further in our relationship," Larry said. "Arthur more or less brought me up, and looked after me, because we both shared a mutual distaste for our parents."

"No," Arthur begged.

"What, you don't want to see that in print?" Larry insisted. "They're both dead."

Capitulating, Arthur explained that Larry was the unwanted second child of a lawyer who was a Phi Beta Kappa member at Yale but never lived up to the promise of his early brilliance.

Arthur became Larry's protector. As a lonely Yale freshman in 1953, Larry tried to kill himself by overdosing on aspirin. He confessed to his brother that he was gay, and Arthur hired a psychiatrist to cure him.

Thinking Larry needed to be cured, Arthur says now, was the well-intentioned mistake of someone taken in by the prevailing psychoanalytic wisdom of the time. Larry forgives him because the psychiatrist — one of many — did some good.


"Ben always dresses in a suit and tie, which Ned never does. Ben's approval is essential to Ned."

— Stage directions for "The Normal Heart"


The brothers wear their differences on their sleeves. Arthur sticks to his lawyer's uniform, a gray suit and a blue oxford shirt. He retired from Kramer Levin Naftalis & Frankel 10 years ago, but maintains strong emotional ties to the firm, which still bears his name.

Larry has a "Queer Eye" fashion sense, mixing denim overalls — to hide a waistline misshapen by the liver transplant he got because of hepatitis B — with an incongruously GQ pair of tasseled brown loafers. His hooded Eskandar T-shirts, to ward off chills, make him look like Peter O'Toole in "Lawrence of Arabia." To his delight, they have attracted stares in Muslim neighborhoods of London. Being an outsider becomes him.

When Larry was studying English at Yale, a fortune teller told him turquoise would protect him, and he has followed her advice ever since, adding more rings and bracelets as his health has worsened.

"When the photographer comes, I have to put on my 'Where is the outrage' T-shirt," Larry said. Not just any T-shirt: This one is sold by Marc Jacobs.

They have clashed over Larry's outrage, and Arthur's lack of it, many times.

In the 1980's, when Larry asked his brother to take on Gay Men's Health Crisis, the fledgling nonprofit organization he helped found, as a client, Arthur said he had to run it past his firm's intake committee, an answer which Larry saw — "rightly," Arthur says now — as a dodge.

Behind Arthur's back, Larry went to another partner, Maurice Nessen, who said, basically, 'Why not?' Larry, furious, stopped talking to Arthur in the first of many rifts.

Around the same time, Larry threatened to call a gay boycott of MCI, one of the Kramer firm's most lucrative clients, because MCI was being accused of discrimination by a former employee who was gay.

"I thought this was a hostile act towards me," Arthur said. He stopped speaking to Larry.

In the 1990's, after Colorado voters passed an anti-gay rights referendum, Arthur refused to cancel a ski trip to Aspen. Once again, Larry stopped talking to him.

Yet in 2001 Arthur gave $1 million to start a program in gay and lesbian studies in Larry's name at Yale. Times had changed, says Arthur, also a Yale alumnus, and so had he — and Yale, which had rebuffed Larry's previous attempts to do something similar.

"Act 1 is me screaming at him to be our lawyer, and Act 7 is him giving $1 million to Yale," Larry said.

Ned: Why didn't you guys fight for the right to get married, instead of the right to legitimize promiscuity?

— "The Normal Heart"


At the end of "The Normal Heart," a sympathetic doctor symbolically marries Ned and his dying lover, Felix, in Felix's hospital room.

Gay marriage, however, is an unfinished act of the play that is the brothers' life.

To the consternation of Jeffrey S. Trachtman, co-counsel with Lambda Legal on Hernandez v. Robles, one of the gay marriage cases now before the Court of Appeals, and Norman C. Simon, a gay associate working on the case, Larry Kramer is not their biggest advocate. His ambivalence is surprising for someone who has been portrayed by detractors as the gay Jerry Falwell, hectoring gay men to "grow up" and repent their hedonistic ways.

At the moment, he says, he is interested in marriage only to take advantage of federal estate tax laws, which the piecemeal, state-by-state approach to gay marriage will do nothing about. "I want to get married if it means the U.S. government will allow me to pass along my estate, which is not inconsiderable, to David," he said, referring to his partner, David Webster, an architect. They have been together for 15 years.

What about marriage as a publicly sanctioned declaration of love? Mr. Simon asks.

His parents' strained marriage was hardly the model of a loving relationship, Larry says. "Why are we perpetuating such a terrible thing?" he said of the institution of marriage. "I'm amazed by how little support for gay marriage comes from gay people."

Maybe, he concedes, if David — who has been resistant — agrees to marry him, he will feel differently.

Arthur, married 53 years, with four children, derides the opposition to gay marriage as politically driven "hoo-hah."

But Arthur pointed out that Larry once thought about getting married to David. "You asked me to ask Nick," Arthur said, meaning Eugene H. Nickerson, a former partner at Kramer, Levin, who became a federal judge in Brooklyn.

"As a federal judge, he had the power to marry people. It was not an appropriate request to make, but I did it. You were trying to establish the principle."

As Arthur remembers it, Judge Nickerson, who has since died, said he didn't perform marriages of any kind. Larry remembers his saying it wouldn't work, because it would not be legal.

Later, Larry consulted Eve Preminger, a friend and surrogate judge at the time. "She offered to do it anyway and see what would happen, but that didn't come to pass," he said.

Yet for all his cynicism about marriage, Larry is delighted when Mr. Simon tells him that he and his partner have been together for 13 years. "Holy moly," he said, making it sound like congratulations.

For a famously angry man, he can be awfully sweet. "Everybody says that," he agreed, and then proceeded to bait his brother.

"Benjamin Disraeli was gay," Larry said to Arthur, as they went out to lunch.

"He was married," Arthur retorted. One has the funny feeling they have been down this road before.

    Gay Brother, Straight Brother: It Could Be a Play, NYT, 25.6.2006, http://www.nytimes.com/2006/06/25/nyregion/25kramer.html?hp&ex=1151294400&en=a5fe16f067d60029&ei=5094&partner=homepage

Stay Tuned, as 2 Churches Struggle With Gay Clergy

June 24, 2006
The New York Times
By LAURIE GOODSTEIN

The only certain result of the Episcopal and Presbyterian church conventions that ended this week is that the participants will return to fight another day — and at future church conventions — over homosexuality.

For the Episcopal Church U.S.A. and the Presbyterian Church (U.S.A.), as with other mainline Protestant churches, the summertime convention season has become a painful ritual. In each church, the conservatives and the liberals are bound together like brawling conjoined twins.

The liberals dominate the power centers of the denominations — the national offices and the legislative arms. The conservatives have threatened to walk away, but most have not because they say the church is rightfully, theologically, theirs.

"It's all very well to threaten divorce, but it's another thing to go to the divorce court," said David C. Steinmetz, a professor of the history of Christianity at Duke Divinity School who has spent the last few years on schism watch.

Members of both churches had looked to this year's conventions to clarify their positions on ordaining gay clergy members and blessing same-sex couples.

But instead, each convention produced the kind of parliamentary doublespeak that some Episcopalians call "Anglican fudge," a concoction often used to smooth over differences at meetings of the global Anglican Communion, of which the Episcopal Church is the American branch.

The Presbyterians, on the sixth day of their eight-day General Assembly in Birmingham, Ala., approved the proposal of a bipartisan "Theological Task Force on Peace, Unity and Purity of the Church," which had spent five years trying to devise a compromise that would keep the church from splitting. The vote was 57 percent to 43 percent.

The proposal gives congregations and regional districts known as presbyteries the leeway to ordain gay clergy members and elders, despite church standards banning the ordination of gay leaders, which the delegates voted to reconfirm at the convention.

Liberals who favor a "live and let live" solution were relieved. But the ball is now in the conservatives' court, and in the post-convention wrap-up, conservative leaders said in interviews that they were not in unity.

Some said they knew of individuals who would surely leave the Presbyterian Church and of churches that intended to "separate themselves" from the denomination, at least temporarily.

But the leaders of most conservative caucuses in the church are encouraging their members to stay and fight, and to challenge the first ordinations of gay clergy members in ecclesiastical courts. A victory or two would give them the precedent they need to undermine this "compromise," they said.

The Rev. Michael R. Walker, executive director of Presbyterians for Renewal, a large conservative group, said: "It's going to increase confusion and rancor in the church, and it's certainly going to result in a quagmire within church courts. So, far from promoting peace, unity and purity, it actually promotes unrest and disunity and impurity."

He said the compromise solution, in which each church or presbytery could make up its own mind, was not acceptable to many conservatives because they felt "guilty by association" with a church that had "compromised biblical standards" on sexuality and morality.

Terry Schlossberg, executive director of the Presbyterian Coalition, another conservative group, said: "We're tired. We don't want to keep fighting the same battles over again, but there are battles to fight that we could prevail in. We are going back to work. We will recommit ourselves to seeing this rescinded at the next General Assembly."

Stay tuned in 2008.

The Episcopalians went into their convention under pressure from conservatives in the United States, and in Africa, Asia and elsewhere, to express regret for consenting to the ordination of a gay bishop — V. Gene Robinson of New Hampshire — at their convention three years ago.

The demands were in the Windsor Report, a document commissioned by the Archbishop of Canterbury in an effort to referee the ruckus that erupted after Bishop Robinson's consecration. The report asked the Episcopal Church to place a moratorium on the election of gay bishops, and to stop blessing same-sex couples.

The decision came down to the last day of the church's convention in Columbus, Ohio, on Wednesday. The House of Deputies, made up of priests and lay people, was apparently in no mood to comply with the report's demands.

Then, at the urging of the church's newly elected presiding bishop, Katharine Jefferts Schori, the House of Deputies passed a statement saying the church should "exercise restraint" in electing bishops "whose manner of life presents a challenge to the wider church and will lead to further strains on communion."

Some advocates of gay inclusion were disappointed, but some of their liberal allies said it would buy the Episcopal Church time to remain in the Anglican Communion and persuade the bishops of other nations to accept the American position.

"I don't see it as a setback," said Bishop J. Jon Bruno of Los Angeles, a liberal. "I see it as a detour in the path to full inclusion of gay and lesbian people."

Bishop Bruno said he had been assured by the Archbishop of York, who was at the Columbus meeting, that the American statement would be sufficient to prevent the Americans from being excluded from the next major meeting of Anglican bishops, the Lambeth Conference in 2008.

The conservatives, however, insisted that the Americans' mea culpa was insufficient.

"If the communion puts its stock in this promise, it's going to be terribly deceived," said Bishop Robert Duncan of Pittsburgh, moderator of the Anglican Communion Network, a conservative group that has formed an alliance with conservative Anglicans in the developing world.

Bishop Duncan suggested in an interview that he had received assurances that the Anglican Communion would soon reprimand the Episcopal Church for disregarding orthodoxy.

"That's the stuff of reformations," he said. "And no reformation goes quickly."

    Stay Tuned, as 2 Churches Struggle With Gay Clergy, NYT, 24.6.2006, http://www.nytimes.com/2006/06/24/us/24church.html

US Presbyterian church opens door to gay clergy

Wed Jun 21, 2006 2:00 AM ET
Reuters
By Verna Gates

BIRMINGHAM, Alabama (Reuters) - The largest U.S. Presbyterian Church body approved a measure on Tuesday that would open the way for the ordination of gays and lesbians under certain circumstances.

The new policy was approved on a vote of 57-43 percent among 500 church representatives at the biennial meeting of the Presbyterian Church U.S.A. It gives local church organizations more leeway in deciding if gays can be ordained as lay deacons and elders as well as clergy, provided they are faithful to the church's core values.

"It permits local governing bodies to examine candidates on a wider criterion than sexual orientation ... it allows these bodies to look at the whole person and not categorize them," said Jon Walton, pastor of First Presbyterian Church in New York's Greenwich Village and a member of the "Covenant Network of Presbyterians" which backed the change.

Kim Clayton Richter of the Columbia Theological Seminary in Atlanta, a member of the same group, said it's wrong to interpret the Bible literally on homosexuality.

"You cannot pick out two or three passages to prove your point. You have to look at the whole witness of Jesus Christ. We've changed our mentality on slavery and the role of women. We have to change with reality," Richter said.

But Donald Baird, a pastor from Sacramento, California, said the Bible is very specific about homosexuality, and he worried about Tuesday's vote undermining church unity.

"We used to act as one church," he said. "Now we'll have 11,000 churches ... chaos," he said.

The 2.5 million-member church is the largest body of that denomination in the United States. It's policy in the past has been against the ordination of anyone not living faithfully in a heterosexual marriage or a single chaste life.

    US Presbyterian church opens door to gay clergy, UT, 21.6.2006, http://today.reuters.com/News/newsArticle.aspx?type=topNews&storyID=2006-06-21T055939Z_01_N20195923_RTRUKOC_0_US-RELIGION-PRESBYTERIANS.xml

Episcopal church struggles with gay issues

Fri Jun 16, 2006 9:51 PM ET
Reuters
By Michael Conlon

COLUMBUS, Ohio (Reuters) - A key committee trying to craft the U.S. Episcopal Church's response to the anger and alienation caused by the consecration of an openly gay bishop wrestled with disagreements on Friday over how to apologize and what to promise for the future.

"I do not regret the decision we made," said committee co-chairman the Rev. Frank Wade, referring to the church's consecration three years ago of Gene Robinson of New Hampshire, the first bishop known to be in an openly gay relationship in more than 450 years of Anglican church history.

Another member of the panel said the group should state outright it "regrets the offenses caused" and offer an apology to the 77 million-member Anglican Communion, as the worldwide church is called, as well as promise not to consecrate more bishops who are "living in a same-sex union."

Robinson's elevation prompted some U.S. churches to affiliate themselves with a network of fast-growing Anglican churches in Africa, where homosexuality is largely taboo.

The special committee is meeting at the U.S. church's triennial convention. Its assignment is to come up with a resolution or a package of resolutions that the convention can vote on before adjourning next week.

The 2.3 million-member U.S. branch of the Anglican Communion is under pressure to respond to the Windsor Report, a paper issued at the behest of the archbishop of Canterbury, Rowan Williams, which demanded the U.S. church apologize for the Robinson elevation, not do any more like it and make it plain that it is against the blessing of same-sex unions.

At the end of Friday's meeting, the committee decided to break into three smaller groups to consider the issues, and try to come up with agreed-upon language sometime on Saturday. The church leadership had hoped to have the gay-related issue disposed of before Sunday when the church elects a new presiding bishop, but it was not clear if that deadline could be met.

The panel is working with three principal resolutions crafted by a commission formed by the church leadership earlier this year. Some committee members were on that commission.

The resolutions include an admonishment that church congregations use "very considerable caution" in elevating gays to bishop; that clergy not authorize public blessings of same-sex unions until the broader church agrees on a policy; and that the entire convention reiterate a statement the Episcopal bishops made last year saying they regretted the pain the Robinson consecration caused.

"We definitely have to make a choice," said member Michael Howell, adding that if the panel did not put forth a statement that expressed regret many would find the response inadequate.

Wade, the retired rector of St. Alban's in Washington, said the committee needed to find a middle ground that reflected both the church's desire for autonomy yet recognized its interdependence with the broader Anglican community.

    Episcopal church struggles with gay issues, R, 16.6.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-06-17T015134Z_01_N16180294_RTRUKOC_0_US-RELIGION-EPISCOPALS.xml&WTmodLoc=NewsArt-L3-U.S.+NewsNews-3

Senate Rebuffs Same-Sex Marriage Ban

June 8, 2006
The New York Times
By CARL HULSE

WASHINGTON, June 7 — As expected, the Senate on Wednesday rejected a proposed constitutional amendment to ban same-sex marriage, rebuffing both President Bush and the social conservative movement.

After two days of sometimes emotional argument, the Senate voted 49 to 48 to shut off debate on a call to bring the amendment to the floor. The total fell well short of the 60 votes needed to actually end debate, let alone the 67 votes required to approve a constitutional amendment.

The decision effectively killed the issue for the year in the Senate, though the House is expected to consider its own version this summer.

Democratic critics of the proposal said its Republican authors had advanced it to rally conservative voters, even though lawmakers knew it would be defeated. They said the proposal was tantamount to writing discrimination into the Constitution.

Opponents also said marriage should remain regulated by the states, dismissing assertions that federal intervention was needed to protect marriage as a traditional union between a man and a woman.

"All over the country, married heterosexual couples are shaking their heads and wondering how exactly the prospect of gay marriage threatens the health of their marriages," said Senator Russell D. Feingold, Democrat of Wisconsin.

Supporters of the ban gained one vote from the last time the Senate considered the issue, before the 2004 election. But they were still unable to break the symbolic 50-vote threshold despite an increase in the Republican majority, the lobbying pressure by religious conservatives and President Bush's repeated calls for approval of the amendment.

In a statement after the Senate action, Mr. Bush expressed disappointment but said the vote "marks the start of a new chapter in this important national debate."

"Our nation's founders set a high bar for amending our Constitution — and history has shown us that it can take several tries before an amendment builds the two-thirds support it needs in both houses of Congress," he said.

Two Republicans who sided with the amendment's advocates in 2004, Senators Arlen Specter of Pennsylvania and Judd Gregg of New Hampshire, switched positions. Over all, seven Republicans opposed the amendment, and two Democrats supported it.

"The courts have basically upheld the right of states to legislate and protect themselves, and that was not the case last time," Mr. Gregg said. "I don't think we have to put it in the Constitution until there is some sort of court decision that would put the states at risk."

Senate champions of the amendment said they were not deterred by the outcome and promised to continue to press the issue. They said they were gaining ground at the state level, where voters and state legislatures continue to approve initiatives banning same-sex marriage.

"We have 45 states that have defined marriage as a union of a man and a woman," said Senator Sam Brownback, Republican of Kansas. "Since the last time we voted in the Senate, we've seen a total of 14 states take this issue up on the ballot."

Though some Republicans have suggested that the Senate would be better served politically by focusing on issues that voters see as more pressing, the author of the amendment said he did not see it that way.

"If it's up to me," that senator, Wayne Allard of Colorado, said, "we'll have a vote on this issue every year. I think it's important to the American people."

Senator Edward M. Kennedy, Democrat of Massachusetts and a leading opponent of the ban, said the Senate should now return to the "real threats facing American families today," like gasoline prices and the cost of health care.

Leaders of social conservative groups had pressed Senator Bill Frist of Tennessee, the majority leader and a possible Republican presidential candidate, to force a vote on the amendment, arguing that they had earned the opportunity after getting behind Mr. Bush in his re-election effort. The vote was also sought by Senate conservatives like Senator Rick Santorum of Pennsylvania, who is in a tough fight for re-election.

Other Republicans argued that the political benefits of the fight against same-sex marriage were uncertain and that some Republicans running in more moderate states in the Northeast and elsewhere could be hurt by it.

    Senate Rebuffs Same-Sex Marriage Ban, NYT, 8.6.2006, http://www.nytimes.com/2006/06/08/washington/08cong.html

Bush to Press for U.S. Ban on Same-Sex Marriage

June 3, 2006
The New York Times
By JIM RUTENBERG

WASHINGTON, June 2 — President Bush is beginning a major push for a constitutional amendment banning same-sex marriage, part of a new campaign to appease cultural conservatives who say he and his party abandoned their issues after the 2004 elections.

Mr. Bush plans to declare strong support for the amendment — scheduled for a vote in the Senate next week — in his radio address on Saturday, and at an event at the White House on Monday with conservative activists and religious leaders, White House officials said Friday.

Taken together, the events will be the first time Mr. Bush has so strongly promoted his opposition to same-sex marriage since his re-election campaign nearly two years ago. Democrats accused the White House of trotting out a reliable hot-button issue to help soothe and re-energize disgruntled conservative voters five months before the midterm Congressional elections. "Everybody's going to see through it," said Howard Dean, chairman of the Democratic National Committee.

But, in a new twist this year, some conservative activists expressed similar cynicism. They said Mr. Bush and the Republicans in Congress had a long way to go to convince social conservatives that they viewed the issue as anything but a politically convenient tool that they picked up only when they needed to motivate their core voters.

After the 2004 campaign, they say, Mr. Bush put his energies into domestic issues like Social Security and immigration rather than into the marriage amendment and other topics of interest to grass-roots conservatives.

"It was so central in the 2004 election," Tony Perkins, president of the Family Research Council, a conservative research group, said of same-sex marriage. "And the day after, the president began a crusade to reform Social Security and it went nowhere. Why not put energy into something that's vital for our society and our country?"

Mr. Perkins said he was encouraged by the White House plan to promote the amendment. But he said that as Washington's attention had been focused elsewhere, judges in several states had ruled against state laws banning same-sex marriage, including Georgia and Nebraska. And he and others said they were concerned by other court cases pending in states including New York, New Jersey and Washington.

Washington Republicans and so-called values voters, Christian radio stations and Internet blogs have been on fire with discussions of moves by what they call activist judges to destroy the institution of marriage as the immigration debate and developments in Iraq have dominated the mainstream news media.

Conservatives expressed still more alarm as Mary Cheney, the vice president's daughter, who is a lesbian, went on national television promoting her book this year and discussed her distaste for the president's opposition to same-sex marriage in 2004.

Adding to what conservatives describe as the fuzziness of the White House's position, the president's wife, Laura, said of same-sex marriage last month, "I don't think it should be used as a campaign tool."

Speaking on Fox News Sunday, Mrs. Bush added, "It requires a lot of sensitivity just to talk about the issue, a lot of sensitivity."

The Senate debate on the marriage amendment is the first in what is expected to be a series of efforts by the White House and its allies to highlight social conservative causes in the run-up to the fall campaign.

After having received widespread praise from conservatives for winning confirmation for two new Supreme Court justices last year, the White House has signaled that it intends to nominate another group of conservative federal judges. In addition, Congress is likely to vote on an amendment banning flag burning, and some Republicans hope to find ways to focus attention on efforts to restrict abortion further.

There is no assurance that the White House effort to motivate social conservatives will be as effective in the election year as it was in 2002 and 2004. Conservative leaders have grown increasingly disenchanted with the administration's record, and at the grass-roots level Mr. Bush is under fire for his position on immigration.

This week White House officials have emphasized that whatever the views of those around the president, his belief that marriage should be between a man and woman has never changed.

Tony Snow, the White House press secretary, on Friday batted down suggestions that the president's involvement in the same-sex marriage debate was politically motivated. Rather, he said, with a number of court cases in the works and the Senate's move to vote on the constitutional amendment on Tuesday, the time "is ripe."

The vote on the amendment is considered largely symbolic because it is not expected to pass by the required two-thirds majority in Congress, let alone the ratification by three-fourths of the states that a constitutional amendment requires. The amendment would not only define marriage as being between a man and a woman, but would also prevent courts from requiring that states allow civil unions.

Opponents say the amendment could prohibit the legal equivalents of marriage, like civil unions; supporters say it would leave that up to states but take away the right of courts to impose civil unions on states that have voted to ban same-sex marriages.

"Nobody thinks it's going anywhere," said Joe Solmonese, president of the Human Rights Campaign, a gay rights group, saying he believed the move was meant to divert attention from high gasoline prices and Iraq.

Tony Fabrizio, a Republican pollster, agreed that other issues sapping conservative enthusiasm — such as moves to open the way to citizenship for illegal immigrants — would overshadow any progress on gay marriage. But he said those most loudly complaining about the president's conservative agenda would never be appeased.

Citing the president's successful nominations to the Supreme Court of John G. Roberts Jr., the new chief justice, and Samuel A. Alito Jr., Mr. Fabrizio said, "I'm trying to think of what he hasn't done for them — talk about fair-weather friends."

Phil Burress, who organized the successful campaign against same-sex marriage in Ohio in 2004 that many credit with helping Mr. Bush there, said the president's involvement would call attention to the issue as several states moved on "defense of marriage" initiatives this election year.

Mr. Burress said the Senate's amendment was already paying off for a Republican senator in his state, Mike DeWine, who faces a tough re-election fight. Mr. Burress said that he was displeased with Mr. DeWine as being too silent about same-sex marriage, but that his opinion changed when Mr. DeWine co-sponsored the proposed amendment.

"It's going to send him back to Washington," Mr. Burress said.

    Bush to Press for U.S. Ban on Same-Sex Marriage, NYT, 3.6.2006, http://www.nytimes.com/2006/06/03/us/03bush.html

Highest Court in New York Confronts Gay Marriage

June 1, 2006
The New York Times
By ANEMONA HARTOCOLLIS

ALBANY, May 31 — As the issue of gay marriage finally reached New York State's highest court on Wednesday, the six judges who heard the passionate arguments from both sides put forth a fundamental question: Has marriage been defined by history, culture and tradition since the dawn of Western civilization, or is it an evolving social institution that should change with the times?

During the two and a half hours of oral argument, the judges on the Court of Appeals grappled with essential questions of social values, asking tough questions without tipping their hands as to their ultimate decision.

They wanted to know whether there were studies showing that children raised by mothers and fathers turned out better than those raised by same-sex couples, and they wanted to know whether opening the door to gay marriage would also open the door to bigamy or polygamy.

They wanted to know whether asking the courts to rewrite New York State's marriage laws was a way of letting the State Legislature escape responsibility for taking a position on a social controversy.

The case before the court was a challenge to New York State's marriage laws, filed by 44 same-sex couples. Their lawyers argued that marriage was a fundamental right, and compared laws assuming marriage to be a union of a man and a woman to the laws prohibiting interracial marriage, which the Supreme Court struck down in 1967.

Lawyers defending the marriage laws argued that even if the institution had evolved, it was the job of the Legislature — not the courts — to change them.

The plaintiffs' lawyers argued that the court merely had to change the gender-based language of the current law, which refers to "husband" and "wife," to something neutral, like "spouse." If the court agreed to legalize same-sex marriages, New York would become only the second state, after Massachusetts, to do so.

The judges' questions pointed to the precedent-setting nature of the debate. "Isn't this the only one where you have literally the whole history of Western civilization against you?" asked Judge Robert S. Smith of the state's domestic relations law. "That does go back right to the dawn of civilization."

After first citing traditional views of marriage, Judge Smith then asked whether the time was ripe for the courts to approve same-sex marriage. Judge Smith also wondered whether the issue of same-sex marriage deserved special attention because of the history of discrimination against gay people.

"Aren't homosexuals about the classic example of people who have been abused and discriminated against," and who therefore need the protection of the courts? he asked.

Peter H. Schiff, senior counsel to the state attorney general, said there was no urgent need to change the law, and pointed out that same-sex couples accounted for only 1.3 percent of all households in New York State, a "very small" number.

"I don't think anybody 100 years ago was thinking about this issue," Mr. Schiff said. "It wasn't on the radar screen."

The main lawsuit in this case was filed by a gay and lesbian rights group, Lambda Legal Defense and Education Fund, on behalf of five same-sex New York City couples against the city clerk, Victor L. Robles, who issues marriage licenses.

In New York, the legal dispute over same-sex marriage goes back two years. In February 2005, a State Supreme Court judge in Manhattan found that state marriage law violated the State Constitution. That decision was overturned last December by the Appellate Division of State Supreme Court, which said it was up to the Legislature to change the law.

In yesterday's hearing, the New York City plaintiffs were joined by three other groups of plaintiffs from across the state. New York City's lawyer, Leonard Koerner, said yesterday that even in its own case law, the Court of Appeals had affirmed the reason for marriage as "the begetting of offspring," not, as the plaintiffs argued, as the sanctioning of a loving and committed union between two people.

Mayor Michael R. Bloomberg has said that New York City is appealing the case to clarify the issue, and that he supports legislative change.

Roberta A. Kaplan, arguing for same-sex marriage on behalf of 12 of the couples across the state, said there were 46,000 families with children headed by same-sex couples in New York State, and that they could not wait until their children were grown for the law to change.

The seventh judge on the Court of Appeals, Albert M. Rosenblatt, removed himself from the case. His daughter, a lawyer, has argued on behalf of advocates for same-sex marriage in California. Judge Rosenblatt has been perceived as a swing vote in many cases. A spokesman for the court said that in the event of a 3-3 tie, another judge could be brought in. He said a tie had occurred only once in the last 20 years or so.

Judge Victoria A. Graffeo asked whether, under the plaintiffs' argument, the Legislature should afford more rights and benefits to other types of family arrangements, such as two sisters raising children. "Was the Legislature denying them due process or equal protection?" she asked.

Judge George Bundy Smith asked what the consequences of legalizing gay marriage had been in Massachusetts.

"Basically nothing," Ms. Kaplan replied. "There is not a breakdown of civil society in Massachusetts and there certainly isn't a breakdown of marriage."

Judge Bundy Smith also asked why gay couples were not satisfied with civil unions — a remedy that the plaintiffs argued would make them second-class citizens.

Chief Judge Judith S. Kaye said the court would have to decide the constitutional questions, "whether we do it frontally or whether we do it in some more subversive way," like changing language about gender.

To which Terence Kindlon, a lawyer for same-sex couples in Albany, replied, "Subversive is one of the words I've liked all my life, your honor."

    Highest Court in New York Confronts Gay Marriage, NYT, 1.6.2006, http://www.nytimes.com/2006/06/01/nyregion/01marriage.html