However, the judges ruled narrowly, and asked that the legislature resolved the question of marriage equality.

From the New York Times:

…the decision gave gay advocates a small victory because it was narrowly written and applied to a relatively small number of people.

In their majority ruling, four of the seven members of the court said they were making their decision on narrow grounds involving the specifics of each case, and not settling the broader question of whether same-sex marriages performed in other states should be recognized. Judge Eugene F. Pigott Jr., writing for the majority, expressed “hope that the Legislature will address this controversy.”

But in a concurring decision, three of the justices said that the court should have addressed the wider issue because New York law already allows for the recognition of marriages that are considered legal elsewhere.

Judge Carmen Beauchamp Ciparick, who wrote the concurring decision, said “that the orders under review should be affirmed on the ground that same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our state’s longstanding marriage recognition rule.”

The ruling leaves open the possibility that there could be future challenges on the issue in New York.

Gov. David Paterson issued an executive order last year extending state recognition to gay couples who are married in states where same-sex marriage is legal. The order was challenged by anti-equality activists who argued that marriage equality should be decided by the legislature.

A marriage equality bill has passed the New York State Assembly; it is not clear whether it will come up for a vote in the state senate.

*****
From Evan Wolfson:

The policy of honoring marriages on equal terms was upheld in a ruling today by the NY Court of Appeals, with a strong and repeated plea by the High Court to the Legislature to act on the underlying question of the freedom to marry here in NY.

A panel of the 9th U.S. Circuit Court of Appeals reversed a previous decision by U.S. District Judge Benjamin Settle in Tacoma to block release of the petitions. Settle held that releasing the names could chill the First Amendment rights of petition signers.

Despite the appeals court ruling, the names weren’t immediately released because a state court order remained in effect. Janelle Guthrie, a spokeswoman for Attorney General Rob McKenna, said her office must now persuade a Thurston County judge to lift a temporary restraining order issued Wednesday forbidding the release of the petitions until the 9th Circuit could rule.

An assistant to the judge said he would not hear arguments until next week at the earliest.

Settle’s ruling last month stunned open-government activists.

“These petitions are not like a secret ballot, but amount to taking part in our legislative process, which is required to be open and accountable,” Secretary of State Sam Reed said.

Referendum 71 asks voters to approve or reject the so-called “everything but marriage” law, which grants registered domestic partners the same legal rights as married heterosexuals.

Conservative Christian groups that sponsored R-71 want to keep the signed petitions out of public view because they fear harassment from gay-rights supporters, some of whom have vowed to post the names of petition signers on the Internet.

The conservative groups lost a fight to keep the identities of their campaign donors secret.

Referendum sponsor Gary Randall of Protect Washington Families said he, another campaign organizer and their lawyers were considering whether to ask the 9th Circuit for a rehearing with more judges.

“There’s been calls and harassment and confrontation of people who donated who just thought they were participating in the democratic process,” he said. “I don’t think it’s right.”

The state attorney general’s office argued that there’s little evidence of threats or harassment amounting to more than a few rude phone calls.

In its brief order, the 9th Circuit panel said Settle used the wrong legal standard in granting the preliminary injunction that barred release of the petitions, and that the injunction therefore must be reversed.

The judges said they would later issue an opinion explaining their reasoning.

The 9th U.S. Circuit Court of Appeals heard arguments Wednesday in Pasadena, Calif., on whether signatures collected to repeal a domestic partnership law passed by the Washington Legislature during the last session should be released.

R-71 asks voters to approve or reject a new law expanding domestic partnerships for gay couples.

The referendum’s conservative sponsors want to keep their signed petitions out of public view, because they fear harassment from gay-rights supporters.

A federal judge in Tacoma granted the sponsors’ request in September. But the state is appealing, citing its open-government laws.

U.S. District Chief Judge Vaughn Walker also signaled Wednesday that the measure’s sponsors will need to show that allowing gay couples to wed threatens traditional male-female unions.

Walker said significant questions remain about whether the voter-approved ban discriminates against gays and lesbians in violation of the U.S. Constitution.

Before ruling, Walker grilled a lawyer for the measure’s backers who asserted that Proposition 8 was legitimate because it fostered “naturally procreative relationships.”

The judge demanded to hear how that goal would be undermined if same-sex marriages were legal.

Attorney Brian Raum told state Court of Appeals judges that a law their court upheld three years ago defines marriage as between one man and one woman, based on “well established public policies linking marriage in New York to procreation and the welfare of children.”

Raum’s group – the Alliance Defense Fund of Scottsdale, Ariz. – is representing New York plaintiffs who are challenging state and county benefits for spouses of same-sex couples married in Canada or states where those marriages are legal.

The state has exceptions for marriages performed elsewhere that are considered abhorrent in New York, including incest and polygamy. Raum argued that same-sex marriage should be regarded as another exception.

He acknowledged when questioned by judges that a bill to legalize same-sex marriage in New York recently passed the state Assembly. He also acknowledged that the law defining marriage is a century old, and some more recent statutes protect gays in New York from discrimination.

“Broad recognition of out-of-state marriages is the law here,” Judge Susan Read said during Tuesday’s hearing. “It’s been the law for a long time.”

New York’s Department of Civil Service extended benefits to legally married same-sex spouses of state and local government workers in 2007. Westchester County also authorized benefits.

Lower courts upheld the benefits, though the midlevel appeals court split over the reasons why. Three justices cited New York’s recognition of legal marriages elsewhere, while two others noted the department’s narrower authority to determine which public workers are entitled to health coverage.

Attorney Susan Sommer, representing two same-sex couples, said the court should back the broader interpretation “to bring certainty and stability to families.”

Judge Eugene Pigott Jr. questioned whether it wasn’t just a question of semantics and opponents would still have a problem if the benefits were simply granted to dependents, as recognized by department officials, who included same-sex spouses.

Judge Robert Smith questioned whether the court would be establishing a basis for discriminating against New Yorkers at home, where they can’t legally marry. “Is it fair to say we don’t allow same-sex marriages, but if you get a bus ticket we do?”

The seven judges are expected to rule on the matter next month.

The state Department of Civil Service extended health insurance benefits to those spouses of state and local government workers in 2007. A year earlier, Westchester County agencies granted similar recognition and benefits.

The Court of Appeals will hear oral arguments Tuesday by the Alliance Defense Fund of Scottsdale, Ariz., contending those benefits are unlawful in New York, which does not permit same-sex marriages.

Lower courts upheld the benefits, saying New York generally recognizes marriages from elsewhere unless specifically prohibited or found abhorrent to public policy.

Texas Attorney General Greg Abbott said he’d appeal the ruling, which he labeled an attempt to strike down the ban approved by voters in 2005.

“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman,” Abbott said in a written statement. “Today’s ruling purports to strike down that constitutional definition – despite the fact that it was recently adopted by 75 percent of Texas voters.”

Abbott has argued that because the state doesn’t recognize gay marriage, its courts can’t dissolve one through divorce.

District Judge Tena Callahan’s ruled Thursday, however, that the court “has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction.”

Jennifer Pizer, marriage project director for the New York-based gay rights group Lambda Legal, said it is too early to predict the ultimate implications of the lawsuit, in which neither man is identified.

But Cathy Adams, president of the conservative Texas Eagle Forum, characterized the decision as a judicial overreach.

“Judicial activism is what they’re after, and it sounds as if they found someone in Dallas to participate in their endeavor,” she said. “The people of Texas have spoken very strongly in opposition to same-sex marriage.”

Peter Schulte, an attorney for the man who filed for divorce, told The Dallas Morning News that he and his client are “ecstatic” over the court’s ruling. Schulte said the decision was a surprise, and that he hoped to have the judge sign a divorce order in a few weeks.

Gov. Rick Perry said state lawmakers and voters have repeatedly affirmed marriage as being between a man and a woman.

“I believe the ruling is flawed and should be appealed,” Perry said.

Sen. Kay Bailey Hutchison, R-Texas, said she also supports Abbott’s decision to appeal. Hutchison, who is challenging Perry in the GOP gubernatorial primary, said she has “consistently voted to preserve the sanctity of marriage and as governor I will continue to defend traditional marriage.”

A phone message left by The Associated Press at court offices for Callahan was not immediately returned late Thursday. Callahan’s ruling was first reported in The Dallas Morning News.

Pizer predicted an eventual end to bans on gay marriage in Texas and across the country.

“Most people do recognize that, eventually, American law will treat gays and lesbians the same as every other American,” she said. “What we don’t know is how may chapters that story will be.”

Guadalupe Benitez, 36, of Oceanside, and her spouse sued doctors at North Coast Women’s Medical Group in Vista for discrimination in 2001. California’s highest court last year barred the Christian doctors from invoking religious beliefs, ruling state law prohibiting sexual orientation discrimination extends to the medical profession.

Attorneys for the doctors and Benitez said that they settled the case for an undisclosed sum of money.

The doctors said in a statement that they want all of their patients, including those who are lesbian and gay, to feel welcome in their medical practice.

Benitez has said the doctors treated her with fertility drugs and instructed her how to inseminate herself at home, but told her their beliefs prevented them from inseminating her.

One of the doctors referred her to another fertility specialist who didn’t have moral objections. Benitez has since given birth to three children.

“It’s been a long, hard fight to get to this point,” Benitez said following the settlement announcement. “But we know we’ve made a difference in the law that will help people in California and across the country.”

The statement issued by North Coast was encouraging, said Jennifer Pizer, Benitez’s attorney.

“It shows a journey that our whole society is taking together, away from intolerance and towards inclusion,” she said.

In court documents, the Justice Department makes it clear the Obama administration thinks the law is discriminatory and should be repealed. But the department, calling the law “constitutionally permissible,” said it has an obligation to defend federal laws when they are challenged in court.

The 1996 federal Defense of Marriage Act, known as DOMA, bars federal recognition of gay unions and denies gay couples access to pensions, health insurance and other government benefits.

The law was passed by Congress at a time when it appeared Hawaii would become the first state to legalize same-sex marriage. Opponents worried that other states would be forced to recognize such marriages.

Since then, six states have enacted laws or issued court rulings that permit same-sex marriage, including Massachusetts, Maine, Vermont, Connecticut and Iowa. New Hampshire’s law takes effect Jan. 1, 2010.

The Massachusetts lawsuit was brought by seven gay couples and three widowers, all of whom were married in Massachusetts after it became the first state in the country to legalize gay marriage in 2004. They argue that DOMA violates the equal-protection clause of the U.S. Constitution because it treats married gay couples differently than other married couples.

Beatrice Hernandez and Melba Abreu, plaintiffs in the lawsuit, have been married for five years, but they aren’t allowed to file a joint tax return, as heterosexual married couples can. Hernandez said they paid nearly $20,000 more in taxes between 2004 and 2007 than they would have if they had been able to file joint returns.

“It really is separate and unequal treatment,” Hernandez said. “When we were able to marry in 2004, we didn’t receive a different marriage certificate. We received one that was equal for all citizens here in Massachusetts.”

The Justice Department, however, argues that there is no fundamental right to marriage-based federal benefits and says Congress is entitled to address issues of social reform on an “incremental” basis.

“Congress is therefore permitted to provide benefits only to those who have historically been permitted to marry, without extending the same benefit to those only recently permitted to do so,” the government argued in its written response to the lawsuit.

“Congress may subsequently decide to extend federal benefits to same-sex marriages, and this Administration believes that Congress should do so. But its decision not to do so to this point is not irrational or unconstitutional.”

Gay & Lesbian Advocates & Defenders, the legal group that filed the lawsuit, said DOMA is an exception to a long history of the federal government deferring to determinations by the states as to what constitutes marriage.

“We’re seeking justice for the widows and widowers who are denied death benefits, for people who can’t get on their spouse’s health plan, for parents who can’t file taxes jointly and pay thousands extra each year that they could put away for their children’s education or family emergencies,” said Gary Buseck, GLAD’s legal director.

A bill to repeal DOMA was introduced in the U.S. House of Representatives on Tuesday by U.S. Rep. Jerrold Nadler, D-N.Y., but has little chance of making it to a vote this year.

U.S. District Judge Benjamin Settle in Tacoma granted the preliminary injunction involving petitions for Referendum 71 while a related case moves forward on the constitutionality of the state public records act.

The referendum, sponsored by a group called Protect Marriage Washington, asks voters to approve or reject the “everything but marriage” domestic partnership law that state lawmakers passed earlier this year.

In his ruling, Settle said he was “not persuaded that waiver of one’s fundamental right to anonymous political speech is a prerequisite for participation in Washington’s referendum process.”

Brian Zylstra, spokesman for Secretary of State Sam Reed, said that the judge’s decision “is a step away from open government.”

“When people sign a referendum or initiative petition, they are trying to change state law,” he said. “We believe that changing state law should be open to public view.”

A spokesman for the state attorney general’s office, which is representing Reed in the case, said they are weighing whether to appeal the preliminary injunction.

At a hearing before Settle last week, attorneys for Protect Marriage had argued that referendum signers’ names and addresses should be exempt from the public records disclosure law because release of the information would put them at risk of harassment, amounting to an unconstitutional infringement of free speech rights.

Referendum campaign organizer Larry Stickney said he’s already been subjected to threats and harassment for his involvement in the effort. The campaign also said it has heard from supporters who didn’t want to sign the petition for fear of reprisals.

However, Assistant Attorney General Jim Pharris told the judge that Protect Marriage hasn’t shown significant harm beyond rude comments or phone calls – nothing that would “be appropriate to overturning the state’s strong tradition for open government.”

In his ruling, Settle agreed with the state that there must be measures in place to prevent referendum fraud. But because of the secretary of state’s process of verifying signatures, “at this time the court is not persuaded that full public disclosure of referendum petitions is necessary,” the judge said.

Protect Marriage turned in nearly 138,000 signatures in July, with 121,780 being accepted. That was about 1,200 more than the minimum required to qualify for the ballot.

Two gay rights groups, WhoSigned.Org and KnowThyNeighbor.org, previously said they would post the names online, which sparked the legal action to keep them private.

Protect Marriage was unsuccessful in an effort to keep the names of its political donors secret when the state Public Disclosure Commission ruled last month that donors weren’t exempt from campaign finance laws requiring disclosure.

Protect Marriage Attorney Stephen Pidgeon said he was still deciding whether to appeal that decision. But in the meantime, he said that he is happy that the names of those who signed the referendum petitions will not be released.

“The court has said, and said rightly, that the ability to participate, even anonymously, in the political process is a long and respected right in the United States,” he said.

The legal battle to keep the referendum off the Nov. 3 ballot ended Wednesday when supporters of expanded rights for domestic partners said they wouldn’t appeal a Thurston County Superior Court judge’s refusal to block the vote.

Washington Families Standing Together chairwoman Anne Levinson said the group will now focus on a campaign to ensure the law is retained by voters.

After passage by the Legislature, the law was supposed to take effect July 26, but the referendum campaign put it on hold. Now, it will take effect only if approved by voters.

If the law is rejected at the polls, previously enacted legislation on domestic partnerships would remain in place.

More than 5,900 domestic partnership registrations have been filed in Washington since the first law took effect in July 2007.