The NY Court of Appeals concluded Thursday to strike down the right of homosexuals to marry in the state. In a 4-2 decision, Judge Robert Smith writing for the majority decided that child welfare is best promoted in a heterosexual married relationship than it is in a homosexual one. Marriage is deemed an institution for procreation that could only be born as a result of procreation between a man and a woman. Tradition that dictates marriage as between persons of the opposite sex was upheld.

I am so disheartened by this loss. NY, after all, is the bastion of Northeastern liberalism and to see it fail in its spirit is utterly deflating. I don’t even know why I’m so affected by this decision since I am not so convinced I want to marry myself. But as sure as I am of this ambivalence, I am unwavering in my conviction that gays and lesbians should be given the same rights as the straights as guaranteed by the Constitution of this land. The cop-out in civil unions (as is done in Vermont and Connecticut) is not enough. Separate, but equal is not equal.

I went to the Rosie O’Donnell Famiy Cruise Vacation last year as a guest of my friend, Eric, who was invited to write about it as part of press promotions (since he writes for a Broadway magazine and there were lots of Broadway stars performing on the cruise.) The cruise was marketed to gay and lesbian families who deserved a summer cruise vacation as a family but who would otherwise have felt uneasy on a more conventional cruise ship. The ship, holding 2000 strong, went into Nova Scotia in Canada, and Boston, Provincetown and Martha’s Vineyard in Massachusetts. I had been to a cruise before heading to the Bahamas (which ended up being a booze cruise since, apparently, it coincided with spring break for Midwestern college kids) but I had never seen anything like this. There were so many different families — gays and lesbian parents alike — from so many different places built up in so many different ways. There were children from previous heterosexual marriages; from legal adoptions; from artificial insemination; from the foster home system. The stories were all different but the spirit was radically the same — unconditional love. I distinctly remember this one night when a kid came up on stage and thanked her lesbian parents who had taken her out of her previous violent foster home in Texas. Or this pair of gay lawyers from California Eric and I met at the start of the cruise who had brought their high school kid with them — he was in every way the blond, blue-eyed basketball jock who seemed perfectly at ease with and proud of his two loving dads. Or the 2 lesbian moms from Ohio with their daughter back home from college together with their young baby. Or the 2 gay dads from New Jersey who brought along with them all of their 7 kids! There were so many more heartwarming stories that overwhelmed me during that week that I was helplessly crying during the last night’s show when I was just choked up with the whirling sentiments of being sad over it ending and being totally grateful for having witnessed such wonders. (Of course, Melissa Etheridge — who was there with her family — rocking the house down in a surprise performance — since she had just recovered from cancer and was still bald from chemo and was not scheduled at all to perform — just threw me over the edge.) Even at that time last year, the culture war was being waged against the homosexuals in defense of traditional family values. That ship was all about family values. I have since firmly believed (of which it now becomes significantly poignant) that child welfare is best promoted by loving parents regardless of their sexual orientation.

Judith Kaye, the Chief Judge writing for the minority opinion, states that to deny marriage to same-sex couples actually undermines the welfare of so many children in NY considering that so many homosexual couples in this state rear kids. Marriage provides many legal protections and economic benefits to heterosexual couples and their children that to deny these to homosexual couples yields the same effect as taking these away from their children.

I also agree with her when she writes that allowing homosexuals to marry in no way diminishes the heterosexuals’ interest in procreation. Married gay men and lesbians neither care nor are interested in breaking up this heterosexual enterprise. The right to privacy is always prime. What happens in one’s bedroom is only for that one to know and to choose and to enjoy. Gay marriage is not meant for straight homebreaking but, to the contrary, for more of society’s homebuidling. To opine otherwise is sheer absurdity.

Finally, she writes that to conclude on the side of tradition is a distortion of history since the definition of marriage has changed dramatically over time. “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.” Marriage, as a fundamental right, is as stated, fundamental, and cannot be denied to any particular group based on the ground “that these groups have historically been denied those rights.”

The history of gay rights continues to be written. That myth of homosexuality as a sickness has already been debunked and the act of sodomy has since been decriminalized (if not albeit only 3 years ago.) Even denominational religion has opened the window to recognizing homosexuality as acceptable (considering that the Episcopalians have already elected a gay bishop.) It has hit a roadblock 2 days ago with this loss in the Appeals Court but, now, the long and arduous road of legislating marriage (whether on the federal or state level) is upon us. It may not happen anytime soon but, in case my heart decides to marry with the right guy upon me, then there’s always Massachusetts. Or Canada.