(Albany, New York) A midlevel New York State appeals court is considering a challenge to the 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.

“That may change in New York, but it has to be left to the democratic process,” said Raum told the court.

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 was granted intervenor status in the appeal, representing 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, intervened in the case to protect their access to spousal health insurance.

“Peri Rainbow and Tamela Sloan, who are raising a special needs daughter adopted from foster care, deserve the family health insurance they receive as spouses under the New York Department of Civil Service policy recognizing their marriage,” said Susan Sommer, Senior Counsel for Lambda Legal.

The court did not indicate when it would rule in the case.

In May current governor, 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.