Manhattan Supreme Court Justice Doris Ling-Cohan ordered Victor Robles, the Clerk of the City of New York, on February 4th to stop discriminating against people on the basis of sex in licensing marriages. The next day, Mayor Michael Bloomberg vowed to appeal the court order, while for the first time announcing that he supports the right of gay couples to marry. That night, Bloomberg addressed two major gay rights dinners and while his recent conversion to support for gay marriage in principle was applauded, he was bitterly heckled and booed when he said he would appeal the judge’s order.
By February 6, all of Bloomberg’s major potential Democratic opponents for mayor--Council Speaker Gifford Miller, former Bronx Borough President Fernando Ferrer, Manhattan Borough President C. Virginia Fields, and Congressman Anthony Weiner--condemned his refusal to comply with the court order and the issue of same-sex marriage moved to the center of the 2005 mayor’s race.
Justice Ling-Cohan ruled in a lawsuit brought on behalf of five lesbian and gay couples by the Lambda Legal Defense, a gay and lesbian legal advocacy group, last March. In her ruling, she compared the denial of marriage to gay people to the miscegenation laws that forbade interracial marriage in many states until the United States Supreme Court struck them down in 1967. Indeed, she noted that one of the plaintiffs, Curtis Woolbright, had a white mother who had to move to California from Texas in order to be able to marry a black man in the early 1960s.
Addressing due process and constitutional issues raised by the plaintiffs, Ling-Cohan ruled that “the words â€husband,’ â€wife,’ â€groom’ and â€bride,’ as they appear in the Domestic Relations Law shall be construed to mean â€spouse,’ and all personal pronouns, as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to either men or women.”
Professor Arthur Leonard of New York Law School, in an extensive legal analysis of the decision, said that the while the city's attorneys agreed with the plaintiffs that gay couples form families and need support, the city argued there was nevertheless a state interest in “maintaining the traditional form of marriage as a union of one man and one woman” and “in avoiding conflict with the laws of other jurisdictions, including the federal government, that would not recognize same-sex marriages performed in New York.” Ling-Cohan rejected those arguments.
Justice Ling-Cohan stayed her own order for 30 days to give the city the chance to appeal; Bloomberg announced that this was his intention the day after she issued it. Assemblymember Dick Gottfried, sponsor of a Right to Marry Bill to legalize same-sex marriage in Albany, said that if the mayor truly supported same-sex marriage now, he could take the side of the plaintiffs in bringing the case to the Court of Appeals.
“The mayor is a coward,” said State Senator Tom Duane, an out gay sponsor of the Right to Marry Bill in the Senate. “He should stand up with us in this most important civil rights battle of our lifetimes.”
Bloomberg said, “I do not want to see happen here what happened in California,” where gay marriages were authorized by Mayor Gavin Newsom last winter and overturned by the state court. But in the New York case, it is a court that is ordering the city to issue the licenses.
Hunter College political science professor Kenneth Sherill saw electoral politics behind the mayor's decision to appeal: “Bloomberg says that [issuing licenses to gay couples] will cause chaos -- tens of thousands of people coming to the city! But the Republican Convention and the Olympics are okay. Somebody's worried about the Republican primary.”
Bloomberg is facing a Republican primary from conservative former Councilmember Tom Ognibene and may indeed be concerned about not taking positions too at variance with the Republican base nor the core Giuliani constituency that elected him in 2001.
There are other pending same-sex marriage lawsuits around New York State, one brought by the American Civil Liberties Union and another led by civil rights lawyer Norman Siegel. These cases did not get positive lower court rulings and are on appeal.
If the issue is to be resolved judicially, it will be the decision of the Court of Appeals which now is made up of three appointees by former governor Mario Cuomo, a Democrat, and four by the Republican incumbent, George Pataki. While it is still one of the more liberal high courts in the country, having struck down the state’s death penalty law last year, it is more difficult to predict how it will rule on same-sex marriage. Only the Massachusetts high court has opened marriage to gay couples, and that led to a movement backed by President Bush for a federal amendment to ban same-sex marriage and passage of thirteen state amendments against it with more on the way.
Assemblymember Deborah Glick, an out lesbian, said, “There is no support for a Defense of Marriage Act in the Assembly.”
One prominent Democrat said that polling by the Assembly leadership found that while a majority of New Yorkers do not support same-sex marriage, a majority also doesn’t like politicians taking anti-gay positions. The source said that this is why though the Senate rarely takes pro-gay actions, they hesitate passing anti-gay bills even on marriage.
While Republican Governor Pataki opposes same-sex marriage, he has taken incremental steps to support lesbian and gay rights, including protecting gay relationships, in recent years.
A conservative who welcomed Ling-Cohan’s decision was William Donahue, director of the Catholic League for Religious and Civil Rights who said that he believed it would inspire a backlash against “activist judges” and will help build support for the amendment to the United States Constitution banning same-sex marriage. That amendment is given little hope, even from Bush, of gaining the necessary two-thirds vote in both houses of Congress. It fell far short last year. But all bets would be off if a court were to strike down the federal Defense of Marriage Act that bans federal recognition of same-sex marriage and allows states to deny such recognition to legal same-sex marriages performed in other jurisdictions.
New York is already grappling with the reality of legally married same-sex couples, mostly New York couples who married in Canada. State
Comptroller Alan Hevesi last year said that they would be recognized by the state pension system and Mayor Bloomberg followed suit with the city pension system. But the state Department of Taxation and Finance will not let these couples file as married with New York State, even though Attorney General Eliot Spitzer issued an opinion in 2003 that New York should honor these marriages even if it does not yet perform them.
In neighboring jurisdictions, Massachusetts has allowed gay couples to marry since last March, but has closed the door to out-of-state http://massequality.org/news_bg_4_19.php gay couples marrying there--an issue being litigated. A state constitutional amendment to ban same-sex marriage and mandate civil unions passed a joint session of the Massachusetts legislature last year, but it must pass again this year before it can go to the voters in 2006, a less likely prospect now that the state has had a year to get used to gay married couples.
Seven of ten Canadian provinces or territories permit gays to marry and the parliament just got a bill legalizing it for the entire country with a close vote expected in June. New Jersey has a same-sex marriage case that is at the appellate level. And Connecticut is considering same-sex marriage and civil union legislation, with the state gay lobby group on the issue saying they will settle for nothing less than full marriage rights.
Ossie Davis 1917-2005
Ossie Davis was hailed at his deathon February 4 as a consummate artist for his work in theater, movies, and television, but equally honored as one of the major civil rights figures of the 20th century. He worked not just to improve the status of African Americans in the entertainment industry, but for the advancement of all people in the larger society.
Davis, often with his wife Ruby Dee, worked closely with such seminal figures in the civil rights movement as Paul Robeson, WEB DuBois, Martin Luther King, Jr., Fanny Lou Hamer, and Malcolm X. He was the chief eulogist at the funeral of Malcolm X in 1965.
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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