Gay couples take marriage fight to NY's top court

ALBANY, N.Y., June 1 (Reuters) New York State's highest court started hearing a case that gay rights activists hope will overturn as unconstitutional a state law defining marriage as the union of a man and a woman.

The New York case is one of several initiatives by gay rights activists across the United States where gay marriage has been a divisive issue in recent years, particularly in the 2004 presidential election.

''There are 46,000 families of same-sex couples with children in New York and there is no dispute they are stable families who are excluded from the benefits of marriage,'' said Roberta Kaplan, a lawyer for the American Civil Liberties Union who was representing many of the same-sex couples yesterday.

In more than two hours of argument before the State Court of Appeals, Kaplan said the court should change the state's ban on gay marriage just as in the past it threw out laws that had allowed marital rape and criminalized sodomy.

''Despite tradition, this court found that these laws were unconstitutional and didn't meet rational basis,'' she said.

Massachusetts is the only state to permit gays to marry, while Vermont allows same-sex couples the rights and benefits of marriage but calls them civil unions.

In the November 2004 election, ballot measures were passed in 11 states to ban gay marriages.

The New York case involves 48 gay and lesbian couples who filed four separate cases from across the state. The cases are being heard together by the court in Albany.

In one of the cases, couples were married by local clergy but denied marriage licenses at city hall.

Dan O'Donnell, an openly gay state lawmaker who brought one of the cases, was in the quiet but packed courtroom. He is the brother of entertainer Rosie O'Donnell, who married her lesbian partner in Massachusetts.

''We will prevail here,'' he said outside the courthouse.

''It's the right and just thing to do.'' Under 97-year-old state law, marriage is defined as between a man and woman. The same-sex couples claim the law violates their constitutional rights because it defends sex discrimination. They argue that the state constitution doesn't ban gay marriage and can be more loosely interpreted.

In February, the law was upheld in a lower appeals court, forcing the fight to the State Court of Appeals.

STATE LEGISLATURE New York's Deputy Solicitor General Peter Schiff said it was a matter for the state legislature to change the law.

''The state said it was a case for the state legislature, but I think it's a case of discrimination that needs to be addressed,'' said Cindy Swadba, a lesbian who married her partner in Massachusetts and came to show her support.

Seventeen-year-old Alya Shain came from New York City with her parents, Jo-ann Shain and Mary Jo Kennedy, who will celebrate their 25th anniversary together in June. ''These are my two parents and they have instilled values in me and they deserve the same rights as married people,'' Alya Shain said.

There was no sign of protesters against gay-marriage at the courthouse. Among groups that filed briefs ahead of the case, the Catholic Conference of New York State was one of the main opponents of same-sex marriage, along with other religious and family-based groups from around the nation.

Next month, Congress is set to introduce the Protection of Marriage Amendment. If the amendment is passed, a federal constitutional amendment will supersede any state laws.

Reuters VJ VP0530