STEVE INSKEEP, host:
New York's highest court is considering whether gays and lesbians have the right to marry. Yesterday, the justices heard arguments from advocates representing more than 40 same-sex couples. They were denied marriage licenses. If the court rules in their favor, New York could move closer to being the second state to allow same-sex marriages.
NPR's Robert Smith reports.
ROBERT SMITH reporting:
It was more than two years ago that Joanne Shane(ph) and Mary Joe Kennedy(ph) dressed for their wedding day. The two women showed up at the New York City Clerk's Office, plopped down their money for a marriage license and were politely turned down.
Unidentified Woman #1: We brought our cameras and took pictures of it.
Unidentified Woman #2: And afterwards, actually, I sent out announcements via e-mail to my various friends. Instead of a wedding announcement it was a denial of wedding announcements, you know.
SMITH: Now, the New York State Court of Appeals will finally decide if that denial was Constitutional. Outside the Albany courthouse yesterday afternoon, same-sex couples from around the state, who also had been refused licenses, lined up to attend the oral arguments. The Court had consolidated four separate lawsuits.
Unidentified Woman #1: We're actually, today, introducing ourselves to the couples from other cases that we don't know.
Unidentified Woman #2: We've never met them before, and it's nice to meet some of the other plaintiffs.
(Soundbite of court proceedings)
Unidentified Man: Hear ye, hear ye, hear ye.
SMITH: Inside the courtroom, the justices were using the case to explore the history of marriage from, as one judge put it, the dawn of civilization to the very recent debate over no fault divorces. Advocates for the same sex couples tried to make a very simple case that the state's 97-year old marriage law, which refers to husband and wife, doesn't live up to modern standards of equal protection under the law. Terence Kindlon is one of the lawyers for the same sex couples.
Mr. TERENCE KINDLON (Attorney, Albany, New York): We are evolving as a society. And just because we did something 200 years ago or 100 years ago or 50 years ago, it's not necessarily a good justification to do it now.
Justice GEORGE BUNDY SMITH (Justice, New York State Court of Appeals): I agree with you entirely.
SMITH: Court of Appeals Justice George Bundy Smith.
Justice SMITH: And in that circumstance, shouldn't we leave it to the legislature to deal with it?
Mr. KINDLON: It's my position that we don't need the legislature.
SMITH: Kindlon made the case that the terms husband and wife only needed to be changed to spouse to solve the problem. Besides, the New York State legislature, the advocates argued, is too slow unwilling to adopt change. Protection of minorities they said has to come from the court. Attorneys for the State and City of New York, who were defending the marriage law, disagreed.
Marriage is a contract, they said, and the legislature sets the terms of that contract. Peter Schiff with the New York Attorney General's office argued that the state legislature has a reason to protect heterosexual marriage.
Mr. PETER SCHIFF (Attorney, New York Attorney General's Office): It hasn't been historically just because two people love each other. It's because there has been this relation to the possibility of procreation.
SMITH: If this all sounds familiar, it's because this is how the legal debate played out in the Massachusetts Supreme Court in 2003. There, the justices decided that the state had no rational basis for denying same sex couples the right to marry. Roberta Kaplan, a lawyer for the gay and lesbian couples, told the court that it turned out the Massachusetts justices were right.
Ms. ROBERTA KAPLAN (Attorney, Paul, Weiss, Rifkind Wahrton & Garrison): There is not people rioting in the streets in the Commonwealth of Massachusetts; there is not a break down of civil society in Massachusetts; and there surely isn't a break down of marriage in the Commonwealth of Massachusetts.
SMITH: The New York Court of Appeals isn't expected to rule on the case for at least a month, and even then there could something in between full marriage rights and denial. A couple of the justices asked whether civil unions would solve the issue, although neither side seemed to favor a compromise solution.
Robert Smith, NPR News, New York. Transcript provided by NPR, Copyright NPR.
