New York court says no to gay marriage Ruling says better ‘for children to grow up with both a mother and a father’ By Pete Williams Justice correspondent NBC News Updated: 11:42 a.m. ET July 6, 2006 WASHINGTON — New York's highest court ruled Thursday that state law does not permit gay couples to get married there and that such a restriction does not violate New York's constitution. "Whether such marriages should be recognized is a question to be addressed by the legislature," today's decision said. The seven-member court voted 4-2 with one judge not participating. The decision, by one of the nation's more liberal state supreme courts, came as a surprise to lawyers on both sides of the issue. The case was brought by 44 same-sex couples who had sought marriage licenses and were turned down. Advocates for gay rights immediately said they would now press the legislature to change the law. Matt Daniels of the Alliance for Marriage, a group that supports amending the U.S. Constitution to block gay marriage, called today's decision, "an example of the courts doing the right thing. The court properly defered to the legislative branch. There's no question that judges watch what other courts are doing. In that respect it will be helpful. Ruling cites stability as a concern In today's ruling, the court found that the state ban had a rational basis and was therefore constitutional. "For the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships," the majority said. And it ruled that a state legislature could also rationally conclude that "it is better, other things being equal, for children to grow up with both a mother and a father." Because today's decision involved purely state legal issues, no appeal is expected to the U.S. Supreme Court. The court based part of its ruling today on biology — the fact that opposite-sex couples can become parents "as a result of accident or impulse." "The legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples," who must plan more deliberately to raise children, the decision said. "That is absurd and outrageous," said James Esseks of the American Civil Liberties Union, which represented some of the same-sex couples in the case. "It turns on its head the arguments made about gay people for years, that they are not responsible and form fly-by-night relationships. Now the court is saying straight people need to be protected from their impulses." Dissent says denial a form of discrimination Writing for the court's two dissenters, Judge Judith Kaye said state law improperly discriminates against same-sex couples by denying them the right to marry. "Fundamental rights, once recognized, cannot be denied to particular groups on the ground that those groups have historically been denied those rights. I am confident that future generations will look back on today's decision as an unfortunate misstep," she wrote. In writing today's majority opinion, Judge Robert Smith offered a rejoinder. "We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives." Judge Albert Rosenblatt took no part in today's decision. He gave no reason, but his daughter is a lawyer involved in cases that raise similar issues in other states. Only Massachusetts permits same-sex couples to marry, and state officials say they have granted just over 8,100 such licenses in the past two years. Vermont allows civil unions. Pete Williams is NBC News Justice Correspondent.