The 4-2 decision of the New York State Court of Appeals denying that same-sex couples have a constitutional right to marry was more than just a blow to the gay rights movement. It was the most visible example of a project that has taken Governor George Pataki three full terms to accomplish and is not yet complete: establishing a solidly conservative appellate judiciary in a state that had a well-deserved reputation for a liberal one.
Although the issue of gay marriage may not be the best issue to assess the court's direction, the decision on same sex marriage "does not auger well for the future of civil liberties in this court, " said Art Eisenberg, legal director of the New York Civil Liberties Union.
“Up until recently, this was a centrist court that could go back and forth,” he said. But now, he said, “we are increasingly disappointed by the capacity of the state courts to protect individual rights, so we have chosen federal courts more frequently than state courts to bring our cases.”
The Appeals Court
In their decision in the marriage cases, the high court set out a limited definition of civil rights. Rejecting comparisons between laws barring marriage between African-Americans and whites and same sex marriage, the majority decision said, "Racism has been recognized for centuries - at first by a few people, and later by many more - as a revolting moral evil," while "the idea that same-sex marriage is even possible is a relatively new one." The plaintiffs, said Judge Robert S. Smith, ""have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals."
Professor Arthur Leonard of New York law school, a leading scholar on gay legal issues, wrote in the Gay City News that to Smith the word “rational,” when used to evaluate legislative action, includes acting out of habit or custom, even in the face of contrary evidence. Smith apparently believes it is rational to preserve existing social arrangements even when they have the effect of discriminating against a segment of society.”
What’s more, Smith failed to note that, just two years before the U.S. Supreme Court outlawed anti-miscegenation laws in 1967 in the Loving v. Virginia decision, the Gallup poll found that 72 percent of Southern whites and 42 percent of Northern whites opposed inter-racial marriage.
Smith is a Pataki appointee, as are two of the three other judges who ruled against same-sex marriage. Both judges who dissented were named to the bench by liberal Democrat Mario Cuomo.
Court of Appeals judges in New York are appointed to 14-year terms, which means that, until recently, Cuomo appointees dominated the seven-member bench on the state's highest court. Three of those Cuomo picks still remain: Chief Judge Judith Kaye and Judge Carmen Beauchamp Ciparick, the two judges who dissented in the marriage case, and Judge George Bundy Smith, who joined the majority.
Bundy Smith--not to be confused with Pataki appointee Judge Robert S. Smith, who wrote the plurality opinion--has a term that ends in September. He is angling for a reappointment by Pataki, even though he would only be able to serve one more year before reaching the mandatory retirement age of 70. Most observers believe that Pataki, now contemplating a run for the Republican nomination for president in primaries dominated by conservative voters, is unlikely to reappoint Bundy Smith, the court's only African American, who had a relatively liberal record. Naming Bundy Smith to the bench again would deprive Pataki of the chance to nominate a more conservative judge for a full 14-year term.
Pataki's successor will have the opportunity to replace Kaye, whose term expires in March 2007, and Ciparick, whose ends in January 2008. The court's current "swing vote," Albert Rosenblatt, a Pataki appointee who recused himself in this marriage case because he has a lesbian daughter who has written briefs in favor of the cause, will have to retire when he turns 70 next year.
If the leading gubernatorial candidate, Attorney General Eliot Spitzer, a Democrat, prevails in November, he can replace these three with progressives. But Pataki's mark on the court will still last for seven more years.
Four Pataki judges would remain on the bench: Bundy Smith's likely replacement; Robert Smith, who can serve until the end of the year he he hits 70, 2014; Judge Victoria A. Graffeo, who is done in 2014; and Judge Susan P. Read, whose term lasts until 2017. These judges represent a conservative majority on the court. A new governor would not be able to change that until the end of his or her second term.
The conservative ascendancy in Appellate Division, the state's lower level appeals court, is even more evident, with two of its four departments ruling 5-0 and 4-1 to deny gay couples the right to marry. Associate appellate justices are selected by the governor from among the member of the Supreme Court -- the lower court -- and serve five-year terms. The presiding judge for each department is also appointed by the governor and serves until the end of his or her term. These judges, too, must retire at the end of the year in which they turn 70, but unlike high court judges, they do not have to be confirmed by the state senate.
While U.S. Supreme Court nominations--think Clarence Thomas--have become national circuses, nominations to the New York State Court of Appeals generally sail through the State Senate with virtually no controversy. Up until now, neither liberal nor conservative advocacy groups have made much of an issue of judicial nominations.
But that may change in the wake of high profile cases like the same-sex marriage decision. "Reporters should ask both candidates [for governor] about their plans for court appointments. The stakes are high," wrote Walter Olson of the libertarian Manhattan Institute in the New York Post recently. "For years, New York's high court was among the nation's most prominent liberal voices on criminal-justice issues, delighting civil libertarians and frustrating police advocates with rulings extending Miranda rights, the exclusionary rule and so forth. That's been changing lately as Pataki appointments have joined the court. Republican nominee [John] Faso, who has promised to make crime an issue this fall, may argue that opponent Spitzer is too beholden to Democratic constituencies to follow up on this trend."
Vincent Bonventre, professor of law at Albany Law School and a recognized expert on New York appellate courts, said the Court of Appeals “took a swing to the right beginning in 1996” when Pataki and former Mayor Rudolph Giuliani condemned it as “the most liberal in the country.” Bonventre said, “One of the worst cases was the 1999 case of the People v. Ralph Tortorici about an insane guy who held students hostage at SUNY Albany, and the court said it was OK to prosecute him even though they couldn't find one psychiatrist in the state to say he was sane.” As for the Appellate Division, bonventre said, “The first department in Manhattan used to be one of the most liberal courts in the country; now it is one of the most conservative.”
The New York courts' turn to the right obviously pleases leaders such as Faso, the Conservative and Republican nominee for governor. Responding to the marriage ruling, Faso said, "The Court of Appeals correctly interpreted state law and put the question of the legality of gay marriage squarely in the hands of the Legislature and governor. Like many New Yorkers, I view marriage as both a civil and religious institution. Same sex marriage runs contrary to the religious traditions of millions of New Yorkers of all faiths. If elected governor, I will work to ensure that marriage remains a relationship between a man and a woman."
Next Stop: The Legislature
The fight for gay marriage in New York State will now move to the legislature. But few supporters of same sex marriage predict a quick or easy victory. "It is going to take a while," said Eisenberg. "This is a do-nothing legislature." Assemblymember Deborah Glick, an out lesbian, echoed this, saying, "It is difficult to imagine the state legislature moving in an appropriate or positive fashion [on legalizing same-sex marriage] anytime soon."
Alan Van Capelle, director of the www.prideagenda.org Empire State Pride Agenda, which organized rallies of thousands of same-sex marriage supporters on the day of the decision, said, "There is no reason why gays and lesbians can't win marriage in New York in two years." But he acknowledged that, so far, only 22 out of 151 Assembly members and nine out of 62 state senators have publicly supported such a measure.
"It's time for the Democrats in the Assembly to use their 66-seat majority to pass a marriage equality bill," said Matt Foreman, director of the National Gay and Lesbian Task Force. But Democratic Assemblymember Andy Hevesi, a supporter of same-sex marriage, said that if a vote were held tomorrow, "it would be close."
As for the two most powerful members in the legislature, Republican Senate Majority Leader Joe Bruno celebrated the court's decision. Democrat Assembly Speaker Sheldon Silver issued a statement refusing to comment on it, while promising to take up the issue with his Democratic conference. That meeting is unlikely to occur until after the new members are seated in January.
Spitzer and Bloomberg
The politics surrounding the gay marriage case often seemed surreal. Two politicians who say they support gay marriage played key roles in the defeating it in the court. The office of Attorney General Eliot Spitzer, who promises to introduce a pro-gay marriage bill next year if elected governor, defended the law barring same sex marriage. Mayor Michael Bloomberg, another ostensible supporter of same-sex marriage, successfully appealed the only lower court ruling mandating licenses for gay couples who want them.
The court majority picked up on several arguments made by Spitzer and Bloomberg. For example, the judges said that only heterosexuals can "spontaneously procreate" and that that constituted a "rational basis" for a law that only allowed male-female couples to marry.
"This is Eliot Spitzer and Mike Bloomberg's legacy to the gay community in New York," said Allen Roskoff, president of the Jim Owles Liberal Democratic Club and a longtime gay activist. "They should be ashamed of themselves for arguing against our fundamental right to marry."
Donna Lieberman, director of the New York Civil Liberties Union, said Bloomberg must now "put his money where his mouth is--literally and figuratively," and get behind the campaign to pass an equal marriage bill in Albany with his considerable personal fortune.
Meanwhile, Conservative Party Chair Michael Long has said he intends to use his power to endorse candidates in elections â€“ thereby giving them a second line on the ballot -- to put pressure on many Republicans and a few Democrats to oppose same-sex marriage. And so, with both sides seeking to mobilize supporters and use their power and influence, it seems clear Albany faces a protracted, hard-fought showdown over same sex marriage.
Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. 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. Â