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Wedded to the past

July 10, 2006

THE HIGHEST COURTS of New York and Georgia last week moved in the opposite direction of history and justice on same-sex marriage.

By a 4-2 vote, the New York Court of Appeals ruled Thursday that the state Legislature's limitation of marriage to heterosexual couples was a "long-accepted restriction" not based solely on "ignorance and prejudice against homosexuals."

Adding insult to injury, an opinion signed by three of the judges in the majority ruled that it was rational for the Legislature to ban same-sex marriage in the interests of protecting children. Noting that "an important function of marriage is to create more stability and permanence in the relationships that cause children to be born," Judge Robert S. Smith wrote that the state could "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." Never mind that childless heterosexual couples also receive legal benefits from civil marriage -- or that many gay couples are raising children.

The Georgia Supreme Court decision, also handed down Thursday, was narrower but still disappointing. The court rejected technical objections to a constitutional amendment banning same-sex marriage that was approved by state voters in 2004.

Neither of these decisions is binding on the courts of other states, any more than was the famous 2003 ruling by Massachusetts' high court that gay marriage couldn't be prohibited. So there's still hope that California's Supreme Court will take a more enlightened view of the issue when it next hears a challenge to heterosexual monopoly on civil marriage. Advocates of same-sex marriage have turned to the state courts since Gov. Arnold Schwarzenegger's ill-advised veto of a same-sex-marriage bill last year, but hopefully the Legislature will keep trying.

Gay-rights activists shouldn't underestimate the challenge ahead. In Georgia, the ban on same-sex marriages upheld last week passed with 76% of the vote. Meanwhile, even politicians who support gay rights consider it political suicide to mention the M-word. And conservatives continue to score points with the fallacious argument that legalizing same-sex marriage would make heterosexual marriage less attractive or, even more absurdly, damage the religious sacrament of matrimony.

It took the Supreme Court until 1967 -- 1967! -- to strike down odiously racist anti-miscegenation laws. Someday we'll look back on the anti-gay-marriage hysteria with the same revulsion. Until then, with a high court seemingly disinclined to address marriage, states such as California should take the lead.

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