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2 Top Courts Rule Against Gay Marriage

ALBANY, N.Y. (By Mark Johnson, AP) July 6, 2006 — The top courts in two states dealt setbacks to the gay marriage movement Thursday, with New York's highest court ruling same-sex unions are not allowed under state law and the Georgia Supreme Court reinstating a voter-approved ban on gay marriage.

In New York, the Court of Appeals said in a 4-2 decision that the state's marriage law is constitutional and clearly limits marriage to a union between a man and a woman.

Any change in the law would have to come from the state Legislature, Judge Robert Smith said.

"We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives," Smith wrote.

In Georgia, the state Supreme Court reversed a lower court's ruling, deciding unanimously that the ban did not violate the state's single-subject rule for ballot measures. The ban had been approved by 76 percent of voters in 2004.

Massachusetts is the only state that allows gay marriage, although Vermont and Connecticut allow same-sex civil unions that confer the same legal rights. Forty-five states have barred same-sex marriage through statutes or constitutional amendments.

The New York decision said lawmakers have a legitimate interest in protecting children by limiting marriage to heterosexual couples and that the law does not deny homosexual couples any "fundamental right" since same-sex marriages are not "deeply rooted in the nation's history and tradition."

"It's a sad day for New York families," said plaintiff Kathy Burke of Schenectady, who is raising an 11-year-old son with her partner, Tonja Alvis. "My family deserves the same protections as my next door neighbors."

The state had prevailed in lower appeals courts.

"I am satisfied that today's decision by the state's highest court to uphold our position that marriage is between a man and a woman is the right one," Gov. George Pataki, a Republican, said in a statement.

The lawsuit over the Georgia ban focused on the wording of the ballot measure that voters approved.

Lawyers for the plaintiffs had argued that the ballot language addressed more than one issues and that it was misleading because it asked voters to decide on both same-sex marriage and civil unions, separate issues about which many people had different opinions.

State officials held that Georgians knew what they were voting on when they overwhelmingly approved the ballot measure.

In New York, 44 couples acted as plaintiffs in a series of lawsuits filed two years ago after the Massachusetts decision legalizing gay marriage sparked gay marriage controversies across the country.

With little hope of getting a gay marriage bill signed into law in Albany, advocates marshaled forces for a court fight. Among the plaintiffs were the brother of comedian Rosie O'Donnell and his longtime partner.

Plaintiff Regina Cicchetti said she was "devastated" by the ruling. But the Port Jervis resident said she and her partner of 36 years, Susan Zimmer, would fight on, probably by lobbying the Legislature for a change in the law.

"We haven't given up," she said. "We're in this for the long haul. If we can't get it done for us, we'll get it done for the people behind us."

In a dissent, Chief Judge Judith Kaye said the court failed to uphold its responsibility to correct inequalities when it decided to simply leave the issue to lawmakers.

"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," she wrote. "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."

High courts in Washington state and New Jersey are also deliberating cases in which same-sex couples argue they have the right to marry, and a handful of other states have cases moving through lower courts.