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Courts in 2 states reject gay marriage

New York decision stuns advocates; Georgia ban upheld

WASHINGTON -- The highest courts of New York and Georgia ruled yesterday that same-sex couples are not entitled to marry, delivering a double setback to gay rights advocates that leaves Massachusetts as the only state in which such unions are legal.

The New York Court of Appeals ruled that a state law defining marriage as between a man and a woman is constitutional, finding that any new meaning for such an old institution would have to be written by the state Legislature, not the courts. The Georgia Supreme Court, meanwhile, upheld an amendment to that state's constitution, approved by three-fourths of Georgia voters, that prohibits gay partners from marrying or claiming benefits under a civil union.

Coming hours apart in one of the country's most liberal states and in one of its most conservative, the two rejections of same-sex marriage demonstrate the intense hold the issue has taken across the nation's legal and political landscape -- and the difficulty proponents face in trying to alter the status quo.

New York and Georgia were among eight states with pending litigation that gay rights activists targeted, regarding them as promising terrain to challenge state laws or constitutional amendments that prohibit homosexual partners from getting married. Of three additional states where similar challenges already have worked their way through the courts, such marriages remain illegal in two -- Hawaii and Alaska -- with Massachusetts the only exception.

The lawsuits have arisen at a time when 45 states have laws or constitutional amendments -- many of them recently enacted -- that specifically forbid same-sex couples from getting marriage licenses. The issue has emerged as one of the country's strongest ideological collisions, with gay rights activists fighting for marriage as a new civil right, and many conservatives, including President Bush, clinging aggressively to marriage's traditional definition.

In such a charged climate, advocates on both sides had been awaiting the New York opinion with anticipation, coming as it did from a relatively left-leaning court in a state with a large contingent of gay residents. The case, filed on behalf of 44 gay and lesbian couples , turned on questions of due process and equal rights. Georgia's case hinged on a narrower, technical question of how its amendment is worded.

The New York court, in a 4-to-2 opinion written by Judge Robert Smith, sidestepped the question of whether same-sex marriage is worthwhile. ``It is not for us to say whether same-sex marriage is right or wrong," the court wrote, saying that persuasive arguments exist on both sides.

Instead, the court focused on whether the state Legislature had a rational, nondiscriminatory basis for limiting marriage to a man and a woman. The judges concluded that legislators could reasonably believe that such marriages benefited children. Unlike racism, the judges concluded, ``the traditional definition of marriage is not merely a by-product of historical injustice."

Chief Judge Judith Kaye dissented. ``This state has a proud tradition of affording equal rights to all New Yorkers," she wrote in a separate opinion. ``I am confident that future generations will look back on today's decision as an unfortunate misstep."

After the ruling, the lead lawyer for the plaintiffs, Susan Sommer, vowed that she and other proponents would immediately begin to try to persuade the state Legislature to change the definition of marriage.

``It's amazing to be involved in a civil rights case that is so personal and be completely relegated to a position of feeling like a second-class citizen," said Daniel Hernandez, a real estate developer in Manhattan who initiated the suit with his partner of seven years, Nevin Cohen, a college professor, after they stopped at the city clerk's office on their way to work in March 2004 to apply for a marriage license and were turned down. ``You want to feel you're on the same playing field," Hernandez said, ``and I am not. That's been told to me today."

Yesterday's rulings end the two cases because they involve challenges to state laws that cannot be appealed to federal courts.

In New York and Georgia, the rulings produced swift ripple effects onto state politics, including gubernatorial elections this fall. New York's outgoing Republican governor , George Pataki , said he would veto any legislation that would allow same-sex marriages, as he praised the court for preserving ``what has been the law of this state for over 200 years."

The GOP candidate who hopes to succeed him, former state legislator John Faso, echoed Pataki's sentiment, saying, ``Same-sex marriage runs contrary to the religious traditions of millions of New Yorkers of all faiths."

The Democratic candidate for governor, Eliot Spitzer, as state attorney general has defended New York's definition of marriage. Yesterday, Spitzer said that work does not reflect his personal beliefs. ``Should that law be changed? Yes," he said.

In Georgia, Governor Sonny Perdue, running for reelection this spring as the state's first Republican governor in 135 years, had said he would call the Legislature into special session if the state Supreme Court sided with a lower-court judge who struck down the constitutional amendment.

At a news briefing yesterday, he praised the higher court's unanimous ruling. ``When we do a constitutional amendment, we are very respectful of the people's voice," he said. ``Gay Georgians are free to work and to live their lives, they're just not free to marry in Georgia."

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