Divisions Surface Anew Over Gay-Marriage Ruling
By Doug Chandler
Michele Trester and Ann Macklin, residents of Forest Hills, Queens, who have been partners for five years, consider themselves a married couple in nearly every aspect of the term.
They stood under a chupah in May 2005 as family and friends looked on and as their rabbi, Sharon Kleinbaum, officiated. They live together, share their finances and even seem to finish each other’s sentences, as they did in a phone interview earlier this week.
But it is impossible for Trester, 39, and Macklin, 37, to be legally married, a situation that deprives them of the same rights, responsibilities and benefits that heterosexual couples receive automatically as they tie the knot.
It’s also a situation that they were hoping would be reversed as New York’s highest court considered four cases in which the plaintiffs, 44 gay and lesbian couples from throughout the state, fought for the right to marry under state law.
Their hopes were dashed last week when the Court of Appeals ruled 4-2 that denying marriage to same-sex couples does not violate the state Constitution, a decision that throws the issue to the Legislature in Albany.
Searching for a word to describe their reaction, Trester came up with “crestfallen - that kind of thing. Like when you’re hoping for something and it kind of falls apart in front of you.”
Their rabbi used even stronger language, calling the decision bigoted and reserving much of her ire for the court’s reasoning, which found that limiting marriage to heterosexual couples was based, in part, on the protection and welfare of children.
Written by Judge Robert S. Smith, the opinion said lawmakers might reasonably conclude that children raised by heterosexual couples are better off than those raised by same-sex couples, although it acknowledged that little scientific evidence supports that view. “Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and woman are like,” the ruling said.
The majority also argued that restricting marriage to heterosexual couples encourages responsible procreation and said any comparison between the gay-marriage movement and the civil-rights movement was flawed. “Racism has been recognized for centuries - at first by a few people, and later by many more - as a revolting moral evil,” Smith wrote, while gay marriage is a relatively new concept.
“I don’t think I was particularly surprised that they ruled against the full rights of gay people,” said Rabbi Kleinbaum of Congregation Beth Simchat Torah (CBST), the West Village synagogue that serves the gay and lesbian communities. But the rabbi said she was shocked at what she considers “the viciousness of the language,” especially the logic that the discrimination faced by gays doesn’t have the same moral urgency as racism against blacks.
Her comments echoed the sharp dissent in the case issued by the court’s chief judge, Judith S. Kaye, who wrote that future generations would view the decision as “an unfortunate misstep.”
They also reflect the passionate involvement in the issue of much of the city’s Jewish population, which is sharply and, at times, bitterly divided on the matter along religious lines. A disproportionate number of Jews are active in the fight for gay rights, said Rabbi Kleinbaum, who noted the presence of several Jewish figures in the gay-marriage case, including Kaye and Roberta A. Kaplan, one of the lead counsels for the plaintiffs.
Among the Jewish organizations joining a “friend of the court” brief supporting the plaintiffs were the Anti-Defamation League and the Reform movement’s Religious Action Center.
On the other side of spectrum, Agudath Israel of America, an organization representing fervently Orthodox Jews, applauded the decision, saying the court “has served notice that there are limits to judicially instigated social revolutions.”
Kaplan told The Jewish Week the ruling came as “an enormous and terrible surprise” to her for several reasons, including her belief that the court “had to strain to reach its decision.”
There’s “no credible evidence,” for instance, that children raised in same-sex households are any less healthy or well-adjusted than kids in other households, Kaplan said, adding that to raise that argument and base it on “intuition,” as the court did, is simply prejudice.
Suzanne B. Goldberg, director of the Sexuality and Gender Law Clinic at Columbia University, made much the same point, saying she believes the ruling stems from “a bias toward and discomfort with gays. Where we see that is where the court admitted that it lacks factual support for its decision and relied, instead, on common sense and intuition, which are often stand-ins for prejudice.”
Both Kaplan and Goldberg, a member of CBST, also contended that the case had nothing to do with religion, touching solely on civil law.
If the ruling had gone in the opposite direction, “no rabbi in the world would have been forced to perform a same-sex marriage,” Kaplan said. “It was all about whether gay and lesbian couples could enjoy the same benefits under the law” as heterosexual couples do.
“The message I would give to religious institutions is that if you’re against marriage for gay and lesbian couples, don’t perform them,” Goldberg said. “But don’t try to prevent the state from performing civil marriages.”
But Rabbi Avi Shafran, public affairs director of Agudath Israel, believes that “civil law is a teacher. What it says will always trickle down, especially to young people,” he said. “So it’s somewhat of a cop-out to say that civil law doesn’t matter.”
As the battle moves to Albany, Alan Van Capelle, executive director of Empire State Pride Agenda, said his group will press the legislature for a gay-marriage law next year. The first step would involve electing Eliot Spitzer as governor, he said, referring to the Democratic front-runner in the race and the only candidate who supports gay marriage. The other candidates are Democrat Tom Suozzi and Republican John Faso.
Once that takes place, said Capelle, a member of CBST, his group would work with Assembly Democrats to draw up the appropriate measure. But as long as Republicans continue to dominate the state Senate, they would likely block any measure from becoming law.
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