Rather than deal with the concurring opinion in Robles right now (I analyzed the main opinion here), here are a number of quotes from the dissent of Chief Judge Judy Kaye in support of a constitutional right to same-sex marriage. Even though the dissent has no legal effect, it can be cited in court cases in other states, as well as by pro-marriage legislators when the debate in Albany comes.

“Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”

“The purported ‘right’ of gays and lesbians to enter into marriages with different-sex partners to whom they have no innate attraction cannot possibly cure the constitutional violation actually at issue here.”

“In other words, it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State’s interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.”

“But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.”

“But no one rationally decides to have children because gays and lesbians are excluded from marriage.”

“Indeed, the protections that the State gives to couples who do marry — such as the right to own property as a unit or to make medical decisions for each other — are focused largely on the adult relationship, rather than on the couple’s possible role as parents.”

“Nor does the plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State’s interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage–even apart from the totality of marriage itself–does not independently violate plaintiffs’ rights to equal protection of the laws. The breadth of protections that the marriage laws make unavailable to gays and lesbians is ‘so far removed’ from the State’s asserted goal of promoting procreation that the justification is, again, ‘impossible to credit’ (Romer, 517 US at 635).”

“The State’s interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses.”

“To say that discrimination is ‘traditional’ is to say only that the discrimination has existed for a long time.”

“But this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might
some day render the question presented academic.”

“The Court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.”

“I am confident that future generations will look back on today’s decision as an unfortunate misstep.”