(Albany  New York) A mid-level New York State appeals court has upheld a policy granting benefits to the same-sex married partners of state workers.

The ADF, which fights LGBT issues across the country, is representing four upstate taxpayers. Attorney Brian Raum told the five justices of the Appellate Division that Spitzer had usurped the authority of the legislature.

Raum pointed to the 2006 ruling by New York’s highest court, the Court of Appeals, that same-sex couples do not have a constitutional right to marry but that the issue of same-sex marriage could be taken up by the Legislature.

The DCS was represented at the hearing by the state Attorney General’s Office.

Assistant Solicitor General Sasha Samberg-Champion told the court that the Assembly has passed legislation that would legalize same-sex marriage but the bill is stalled in the Senate.

LGBT rights group Lambda Legal represented Peri Rainbow and Tamela Sloan, two state employees who were married in Canada and are raising a special needs child adopted from foster care.

Rainbow and Sloan entered the case to protect their access to spousal health insurance.

The appeals court rejected the ADF arguments, allowing the lower court ruling to stand.

“Once an out–of–state same–sex marriage is recognized in New York,…each of its parties would be ‘a party to a marriage,’ and, thus, a ‘legal spouse’ who would be entitled to the benefits, rights and obligations of that status,” the three-judge majority opinion held. The other two panel judges filed a concurring opinion.

“Today the Appellate Court confirmed that New York’s state government follows the law by respecting out-of-state marriages of same-sex couples,” said Susan Sommer, Senior Counsel at Lambda Legal. “The Court has upheld important spousal health coverage for government employees in the process.”

ADF said it may appeal to the Court of Appeals.

Last May, Gov. David Paterson issued an executive order recognizing the marriages of all New York same-sex couples who were married in areas where they are legal. That order also is under court challenge by the ADF.