NY court hears case against gay marriage benefits

ALBANY, N.Y. — A Christian legal group seeking to stop New York agencies from recognizing same-sex marriages performed outside the state argued in the state’s highest court Tuesday that the practice amounts to a policy decision that requires approval by lawmakers.

Attorney Brian Raum told state Court of Appeals judges that a law their court upheld three years ago defines marriage as between one man and one woman, based on “well established public policies linking marriage in New York to procreation and the welfare of children.”

Raum’s group — the Alliance Defense Fund of Scottsdale, Ariz. — is representing New York plaintiffs who are challenging state and county benefits for spouses of same-sex couples married in Canada or states where those marriages are legal.

The state has exceptions for marriages performed elsewhere that are considered abhorrent in New York, including incest and polygamy. Raum argued that same-sex marriage should be regarded as another exception.

He acknowledged when questioned by judges that a bill to legalize same-sex marriage in New York recently passed the state Assembly. He also acknowledged that the law defining marriage is a century old, and some more recent statutes protect gays in New York from discrimination.

“Broad recognition of out-of-state marriages is the law here,” Judge Susan Read said during Tuesday’s hearing. “It’s been the law for a long time.”

New York’s Department of Civil Service extended benefits to legally married same-sex spouses of state and local government workers in 2007. Westchester County also authorized benefits.

Lower courts upheld the benefits, though the midlevel appeals court split over the reasons why. Three justices cited New York’s recognition of legal marriages elsewhere, while two others noted the department’s narrower authority to determine which public workers are entitled to health coverage.

Attorney Susan Sommer, representing two same-sex couples, said the court should back the broader interpretation “to bring certainty and stability to families.”

Judge Eugene Pigott Jr. questioned whether it wasn’t just a question of semantics and opponents would still have a problem if the benefits were simply granted to dependents, as recognized by department officials, who included same-sex spouses.

Judge Robert Smith questioned whether the court would be establishing a basis for discriminating against New Yorkers at home, where they can’t legally marry. “Is it fair to say we don’t allow same-sex marriages, but if you get a bus ticket we do?”

The seven judges are expected to rule on the matter next month.