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N.Y. Judge: Same-sex marriage is not a fundamental right

A New York state judge rejects challenges to New York's Domestic Relations Law which only recognizes marriages between heterosexual couples.
( [email protected] ) Oct 23, 2004 03:38 PM EDT

A New York state judge Justice has ruled Thursday that Orangetown Town Clerk Charlotte Madigan acted correctly when she denied marriage licenses to 10 same-sex couples, which included Nyack Mayor John Shields and his partner.

The couples had filed suit to seeking to force Madigan to issue the licenses and to force the Health Department to recognize the licenses.

Shields said the judge made “a political decision rather than a decision for the civil rights of all people.” Weiner is one of the 13 candidates running for a 9th Judicial District state Supreme Court justice seat.

Justice Alfred Weiner upheld state Domestic Relations Law and ruled marriage licenses were only issued to heterosexual couples. He rejected arguments made by same-sex couples that the city and state violated their civil rights by denying the licenses. He said homosexuals have rights to marry, just not people of the same sex.

"Same-sex marriage is not a fundamental right protected by the due-process clause of the New York state Constitution," Weiner said in his ruling made available Friday. "The institution of marriage is a fundamental right founded on the distinction of sex and the potential for procreation. Homosexual marriages do not fall within those guideposts or serve such ends."

Weiner also stated that fundamental rights were those "deeply rooted in this nation's history and tradition” in response to plaintiffs’ claims that tradition did not constitute enough reason to keep the ban on same-sex marriage.

"For that reason," Weiner wrote, "the courts are necessarily reluctant to expand the scope and definition of fundamental rights. Exercising such restraint here, this court declines petitioners' request to include in those rights, considered fundamental to our concept of ordered liberty, the right to marry a person of the same sex."

The future of same-sex marriage should be determined by the state Legislature and not by the courts, the judge concluded.

Lambda Legal agreed in a statement issued on Oct. 22. "No doubt this question -- whether same-sex couples have an equal right to marry under the state's Constitution -- will be answered by the state's high court," the statement read.

In New York State, the Domestic Relations Law governs the marriage laws. The state does not have a Defense of Marriage Act.

Eleven states will vote on constitutional amendments banning same-sex marriage on Nov. 2.