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N.Y. Goes Down Massachusetts’s Path on Gay Marriage

Panel of Judges Is Likely to Decide on Legality, Experts Say

By WILLIAM F . HAMMOND JR . Staff Reporter of the Sun

ALBANY — New York is headed for a Massachusetts-style resolution of the gay marriage issue, with a panel of appointed judges ultimately deciding whether homosexual couples should have the right to wed in the state, legal experts said yesterday.

The 25 marriages performed last week by the New Paltz mayor, Jason West, almost certainly will end up in court, as the couples either sue for recognition by employers and government agencies or defend their unions against a legal challenge.

Gay and lesbian New Yorkers with marriage licenses from Canada or civil union certificates from Vermont might also initiate legal action. And New York’s marriage laws turn out to be ambiguous enough that any such case is almost certain to go to the state’s highest court, the Court of Appeals.

That would put the final decision in the hands of seven jurists,four of whom were appointed by Governor Pataki, a Republican, and three by his Democratic predecessor, Governor Cuomo.

Earlier versions of the court threw out the state’s anti-sodomy laws, ruled that a surviving partner of a long-term homosexual relationship could inherit a rentcontrolled apartment, and said Yeshiva University could not bar a lesbian couple from its married-student housing.

The sponsor of a bill to legalize gay marriage, Senator Thomas Duane of Manhattan, said he was optimistic the New York court would follow in the footsteps of the Supreme Judicial Court in Boston,which found that denying gay couples the right to marry violated the Massachusetts constitution.

"While I’d love to see my bill passed, I’d be even happier if it wasn’t necessary," said Mr. Duane, the only openly gay member of the Senate.

A professor who studies the Court of Appeals, Vincent Bonventre of Albany Law School, said it has become more cautious in recent years. "I'm sure that this current Court of Appeals does not want to be deciding such a socially, culturally revolutionary question," he said.

The state’s Domestic Relations Law — which prohibits incestuous marriages,bigamous marriages,and underage marriages — says nothing about the parties to a marriage being of opposite sexes. Lower courts have sometimes described marriages as a contract between a man and a woman, but the question of whether a homosexual couple might legally marry has never been thoroughly litigated.

Mr.Bonventre said authors of the law did not intend to permit gay marriages. But the authors of the 14th Amendment also did not intend for it to prohibit discrimination against women.

"No matter what the courts do, they’re going to be activists in a sense," Mr. Bonventre said of the gay marriage issue. "They can’t run and hide from making a decision."

Three years ago, a report from the Association of the Bar of the City of New York concluded that gay marriage is legal in this state — giving Mayor West a legal justification for the ceremonies he performed Friday.

"Rights evolve over time, and our social attitudes evolve over time," said the lead author of that report, Jay Weiser, a law professor at Baruch College’s Zicklin School of Business. “There was a time in this country when slaves were not allowed to marry. There was a time in this country when women were not regarded as having a separate legal status from their husband."

The state Health Department, citing the lower court precedents, has declared it would be illegal for any city or town clerk to issue a marriage license for a homosexual couple, and asked Attorney General Eliot Spitzer last week to seek a court injunction blocking the weddings in New Paltz.

Mr. Spitzer declined. Mr. Pataki said yesterday he believes marriage in New York “is between a man and a woman, period.” But he opposes codifying that in the Constitution.