New York, Georgia Courts Rule Against Gay Marriage

ATLANTA —  The gay-marriage movement suffered two major defeats on the state level Thursday, as Georgia’s Supreme Court upheld an amendment banning the unions, and New York’s highest court ruled that its state constitution did not grant same-sex couples the right to wed.

Gay-marriage advocates found some solace that the New York ruling gave legislators the option of passing a state law allowing same-sex marriage.

But taken together, the rulings represent a legal low point for gay-rights advocates, especially compared with the peak of 2003 -- when the U.S. Supreme Court struck down anti-sodomy laws and the Massachusetts high court upheld what has become the nation’s only state law allowing same-sex marriage -- said David Buckel, marriage project director for the gay-rights group Lambda Legal.

Opponents of gay marriage see Thursday’s rulings as evidence they are gaining the upper hand in state-by-state battles over one of the nation’s most contentious cultural issues. They especially welcome the victories after the U.S. Senate last month did not approve a constitutional amendment banning same-sex marriages nationwide.

The Georgia case dealt with whether a state gay-marriage ban -- approved in 2004 by 76% of voters -- violated a state rule that ballot measures can address only one issue.

Lambda Legal and others argued that the ballot language appeared to ban gay marriages as well as gay civil unions. The attorneys said that was unfair to voters who might oppose gay marriage but support civil unions with some marriage-like benefits.

Georgia’s governor, Republican Sonny Perdue, had threatened to hold a special legislative session in August to reinstate the law if it was struck down in court.

On Thursday, he expressed pleasure with the ruling.

“The benefits of marriage, as defined by the people of Georgia, are afforded to a man and a woman,” he said in a statement.

The New York Court of Appeals ruled 4 to 2 against more than 40 same-sex couples challenging the state’s decades-old statute limiting marriage to opposite-sex couples. Compared with the Georgia ruling, New York’s majority opinion, signed by three of the four assenting judges, offered meatier language to cultural conservatives.

Judge Robert S. Smith wrote that limiting marriage to heterosexuals was not solely based on prejudice. Because childbirth is a natural consequence of heterosexual unions, he wrote, lawmakers could find a special benefit in promoting stability in those relationships.

Moreover, he said children generally thrived when raised by a mother and a father.

“Intuition and experience suggests that a child benefits from having before his or her eyes, every day, living models of what a man or woman are like,” he wrote.

Smith rejected comparisons to miscegenation laws, which banned interracial marriage until 1967, when the Supreme Court struck them down as unconstitutional.

In a strong dissent, Chief Judge Judith S. Kaye, joined by Judge Carmen Beauchamp Ciparick, condemned the majority decision as a step away from New York’s “proud tradition of affording equal rights.” Most New Yorkers, Kaye wrote, “can look back on, or forward to, their wedding as among the most significant events of their lives.”

Mike Johnson, senior legal counsel for the conservative Alliance Defense Fund, said the New York ruling was particularly important because it was issued by one of the “more progressive courts” in the country.

“Massachusetts looks even more extreme now, more radical,” said Johnson, who helped prepare friend-of-the-court briefs in both cases.

Some gay-rights advocates fear they have been losing momentum since March 2004, when the California Supreme Court halted a monthlong flurry of gay weddings sanctioned by San Francisco Mayor Gavin Newsom.

The Massachusetts law is under threat as well. In a special joint session Wednesday, state legislators plan to consider a constitutional amendment ending the provision allowing same-sex marriage.

To become law, the amendment must first win approval from at least 25% of state senators and representatives in the 2006 and 2007 legislative sessions. If the proposal passes that hurdle -- as is widely expected -- the amendment would come up for a popular vote in 2008.

None of the gay and lesbian marriages that have been solemnized in Massachusetts since 2004 would be invalidated by the constitutional ban.

To both sides in the gay-marriage debate, these state battles may have wider ramifications.

Some conservatives worry that “activist” judges could force states that oppose gay marriage to accept them as valid, based on the U.S. Constitution’s “full faith and credit clause,” which compels states to honor some rulings made by other states’ courts.

That is why those conservatives are not only fighting to stop gay-marriage movements in every state, but are also fighting for an amendment to the U.S. Constitution. Though Congress passed a law banning federal recognition of gay marriage in 1996, the conservatives believe that only a constitutional amendment would be certain to keep the issue out of judges’ hands.

For gay-rights advocates such as Buckel, the strategy is to chip away at anti-gay-marriage legislation state by state. The model, he says, is the long, chaotic process that undermined miscegenation laws on a state-by-state basis before the U.S. Supreme Court struck them all down.

Buckel said he had faith the courts would eventually follow a culture that was growing increasing tolerant of same-sex unions. He noted that Connecticut passed a civil union law last year.

“This isn’t like a valley we’re stuck in, and it’s over for the next decade,” he said. “We’re smack in the middle of a huge civil rights movement here.”

Today, more than 40 states have either statutes or constitutional amendments that ban gay marriage, Buckel said. Gay-rights advocates are waging legal challenges to such bans in six states: Washington; New Jersey; Maryland; Connecticut; Iowa; and California, where the issue is moving toward the state Supreme Court.

A San Francisco Superior Court judge last year struck down state laws that limited marriage to “a man and a woman” as unconstitutional, saying they violated a person’s fundamental right to marry and illegally discriminated on the basis of gender. His ruling was stayed pending an appeal; oral arguments in that case are scheduled for Monday.

Times staff writers Elizabeth Mehren and Lee Romney contributed to this report.