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by Andy Humm, Jul 01, 2003
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June was, appropriately enough, Lesbian, Gay, Bisexual, and Transgender Pride Month. And while it was the 34th such celebration in New York City commemorating the Stonewall Riots against police harassment in 1969, the community has arguably never had more to celebrate.

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On June 26, the United States Supreme Court ruled that the Texas "homosexual conduct" law was unconstitutional and overturned the court's 1986 Bowers decision that gave the states the rights to ban consensual adult sexual activity. Earlier in the month, the Ontario high court ruled-effective immediately-that same-sex couples were entitled to marry. The Canadian government decided not to appeal the decision and proposed legislation to equalize marriage rights across the nation.

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While these two enormous lesbian and gay rights advances were national and international in scope, they were both connected to advocates who live here in New York. And while New York has made some strides of its own in the 34 years since Stonewall, the sweeping nature of these advances hold the very real prospect of completing the long struggle of gay people toward legal equality here.

The lead attorney in for the plaintiffs in the United States Supreme Court case, Lawrence and Garner v. Texas, was Ruth Harlow of the New York-based Lambda Legal Defense and Education Fund. Lambda and the American Civil Liberties Union had chipped away at many state sodomy statutes over the years, including helping to overturn New York's sodomy law in 1980, but those decisions were based on state constitutions, leaving 13 states with sodomy laws, most in the deep South.

It was Kevin Cathcart, the longtime executive director of Lambda, who decided that it was time to bring suit in federal court to challenge the Texas law in an effort to overturn the 1986 Bowers v. Hardwick decision, a 5-4 opinion that held that gay claims to privacy in sexual relations were "facetious, at best." Winning would mean invalidating all the remaining sodomy laws and establishing a foundation in federal law to equal rights for gay people.
Cathcart's judgment paid off in spades with Justice Anthony Kennedy's sweeping decision that we saw announced across the cover of the New York Times the next day in a rare banner headline. (The more conservative New York Post tried to bury the story on page 26.) Professor Arthur Leonard of New York Law School called it "a Magna Carta for gay Americans," in the Gay City News.

Of course, not everyone was thrilled with the decision. Religious conservatives nationwide were said to be "white hot" with fury over the court's move. But local religious conservatives were not nearly so outspoken. Even the New York-based Catholic League for Religious and Civil Rights, which often speaks out against gay rights measures that it feels will infringe on Catholic rights, did not quibble with decriminalizing private consensual sexual behavior. But their president, William Donahue, told the Daily News, "What happens between two consenting adults behind closed doors is their own business. But it would be a mistake for [gays] to hyperventilate about their next victory."

Justice Antonin Scalia did come close to hyperventilation about the court's majority opinion. In an angry dissent, joined by Chief Justice Rehnquist and Justice Clarence Thomas, he said, "What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the 'liberty projected by the constitution'?"

Which brings us to the revolution in the Canadian marriage laws. Ontario, and soon the whole nation if Prime Minister Jean Chrétien has his way, is the first place that American same-sex couples can go to get legally married. Holland, which equalized the marriage laws in 2000, and Belgium which just did this past month, have residency requirements. Some gay Americans have already gone just across the border to marry. A forum was scheduled July 2 at 7 PM at New York's Lesbian, Gay, Bisexual and Transgender Community Center (208 West 13th Street in Manhattan) to guide New Yorkers in the Canadian process.

New York gay couples have been trying to get the City Clerk to issue them marriage licenses since the early 1970s when the Gay Activists Alliance would stage sit-ins at the Marriage Bureau. But the issue did not accelerate in the world's consciousness until 1996 when New York's Evan Wolfson, then an attorney for Lambda Legal, won the right for two Hawaiian gay couples to marry. That lower court victory was eventually stopped by a referendum in Hawaii, but it led to the Congress enacting the Defense of Marriage Act to ban federal recognition of same-sex marriages and gave the states the right to ban recognition of legal same-sex marriages performed in other states. Thirty-seven states have done so, though no state has recognized same sex marriages. (Vermont has come closest with a civil union law that gives Vermont gay couples the rights of married couples. Eight-five percent of those joined under the law in Vermont are from out of state. They return to their states having to fight for the legitimacy of their relationships.)

New York State is one of thirteen states that has not enacted a ban on the recognition of same-sex marriages. While the state does not have a gender-specific marriage law, the Department of Health interpreted it to limit marriage to a man and a woman. But since New York and every other state have always recognized those married in Canada, it is an open question as to how same-sex couples married in Canada will fare here. There is legislation pending in Albany that would open marriage to gay couples and another bill that would close it.

New York has a legal tradition of recognizing the marriages of couples from elsewhere who were married in a way that New York itself does not perform, such as common law marriages. In a case involving St. Vincent's Hospital in New York, a state judge has allowed a man who had obtained a civil union in Vermont the right to sue over the alleged wrongful death of his spouse (the word used in the Vermont law).

Attorney General Eliot Spitzer has yet to weigh in on how same-sex couples married in Canada should be regarded legally in New York. These couples will be in a bind until the legal issues are resolved. They may incur liability if they represent themselves as married and if they don't. A period of mess and uncertainly is ahead of them, including the fact that they can only divorce if they live in Canada for a year (unless a New York court chooses to dissolve their marriages.)

New York City enacted a law last year recognizing domestic partnerships, civil unions, and same-sex marriages performed in other jurisdictions, but that has been interpreted to mean that these couples do not have to register as domestic partners here in the city to get the benefits of domestic partnership.
The Supreme Court's ruling in the Texas case, acknowledging the "liberty" rights of gay people, that has given heart to same-sex marriage advocates, even though the majority made clear that it wasn't opening marriage to gay couples. Alan Van Capelle, director of the Empire State Pride Agenda, the New York gay lobby group, told me for Gay City News that the decision "changes the entire landscape in New York. It refocuses us on the marriage issue" which he said "isn't about 'if' but about 'when.'" Only one week before in the wake of the Canada developments, Van Capelle was hedging about the viability of same-sex marriage in New York. But more aggressive groups like Marriage Equality/New York have been pushing it for five years now.

Attorney Evan Wolfson now heads a national group called Freedom to Marry, based in New York, which is aiding state organizations fighting for equal marriage rights. The breakthrough in the United States may come as early as this month in neighboring Massachusetts where gay plaintiffs await the ruling of the state's high court. And a similar New Jersey case, being argued by Lambda, is going through the legal preliminaries there.

While the marriage issue is unresolved in New York, the state did get rid of one of the last vestiges of anti-gay language in its laws last month by dropping the terms "sodomy" and "deviant sexual intercourse" in its rape laws. These terms were not just deemed to be archaic and anti-gay, but stigmatizing for the rape survivor.

And all is not finished in New York City by any means as far as gay advocates are concerned. Speaker Gifford Miller held a press conference in late June to call upon the mayor and governor to get the quasi independent state/city authorities to provide the same kind of domestic partner benefits that are afforded to other city and state employees.

Andy Humm is a former member of the City Commission on Human Rights. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.


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