It won't be in time for June weddings, but the New York State Court of Appeals, the state's highest court, will hear a group of cases on May 31 arguing that the state’s refusal to let same-sex couples obtain marriage licenses violates the state constitution. A decision is expected by summer, but that might not be the end of it.
The issue of same-sex marriage got lots of attention early last year when Manhattan-based Justice Doris Ling-Cohan ordered the city to start issuing licenses to gay and lesbian couples who wished to marry. At that time in February 2005, facing uncertain reelection prospects, Mayor Michael Bloomberg tried to have it both ways, appealing the decision to fend off conservative attacks and simultaneously announcing that he was now in favor of gay people being able to marry to try to appease liberals.
The Bloomberg administration was successful in having Ling-Cohan’s decision overturned by the state Appellate Division, a mid-level court. Three other same-sex marriage cases were brought elsewhere in the state and in each case Attorney General Eliot Spitzer defended state law even though he is an ostensible supporter of the right of gay people to marry. In 2004, Spitzer issued a legal opinion that while New York law does not permit same-sex couples to marry, it must recognize legal same-sex marriages performed elsewhere.
Thus, there are many legally married same-sex couples living in New York who obtained their licenses in Canada. The federal government does not recognize them as married because of the 1996 federal Defense of Marriage Act that then Representative Chuck Schumer and First Lady Hillary Clinton -- now the two U.S. Senators from New York -- supported. It was signed by President Bill Clinton and forbids the United States from giving any federal recognition to a same-sex marriage. While it allows the states to license them (it looked as if Hawaii was about to at the time, but it did not), it also allows the states to refuse recognition to same-sex marriages performed elsewhere.
The vast majority of states have laws limiting marriage to man-woman couples, many of them passed after 1996. When Massachusetts opened marriage to gay couples by a 4-3 order of their Supreme Judicial Court in 2004, many states went further by passing state constitutional amendments banning same-sex marriage and in many cases any legal recognition of gay couples such as a domestic partnership or civil union (which are offered to the people of Vermont and Connecticut.) Even Massachusetts could close marriage to gay couples if a pending state constitutional amendment gets on the ballot in 2008.
New York City does recognize gay couples legally married elsewhere. So do many divisions of the state including the pension system, thanks to a ruling by State Comptroller Alan Hevesi. The State Division of Taxation and Finance balked, however, issuing a ruling in April that legally married same-sex couples must file as unmarried in New York. In Massachusetts, gay married couples must file their state returns as married and their federal returns as unmarried. To figure their state tax, however, they must do a dummy federal form as if they were married because state tax is derived from federal forms. Whew!
President George W. Bush is in favor of a federal constitutional amendment that would ban same-sex marriage and forbid courts from granting marriage-like rights to same-sex couples. It needed a two-thirds vote in both houses of Congress and didn’t get anywhere near that in 2004. It is being brought back to the United States Senate and House in early June where it might pick up a few more votes, but is mainly being revived not because it will pass but because it can be used as a wedge issue by the Republicans in the fall elections as they try to stem the slide of their party and standard bearer in the polls over the last year. It is opposed by Senators Schumer and Clinton who, while they still do not support the right of gay people to marry, say they support civil unions that would grant comparable rights to gay couples.
If a federal judge were to rule that the Defense of Marriage Act is unconstitutional, that might trigger a two-thirds vote for the Federal Marriage Amendment which would then need ratification by three-fourths of the states--very possible given the actions of state legislatures on the issue to date.
New York is one of a handful of states that has not taken any legislative action for or against same-sex marriage though bills are pending in Albany both to ban it and allow it. The legislature has passed some bills over the past year granting incremental rights to same-sex partners including control of remains when one partner dies, but nothing that has caused much controversy.
The New York Court of Appeals can do more than either strike down or uphold the state law that, despite the absence of any explicit mention of gender, has been interpreted thus far to restrict marriage to heterosexual couples. It could also rule that equal protection requires the state to give equal rights to gay couples and leave it to the legislature to fashion the solution. That’s what the Vermont high court did in 2000 and Vermont’s Governor Howard Dean and the legislature came up with the first statewide civil union scheme, granting marriage in all but name to gay couples.
Predicting the outcome of the case is difficult, but was made more so in early May by the announcement that Associate Judge Albert Rosenblatt recused himself from it without explanation. If the remaining judges deadlock in a 3-3 tie, it might have to be re-argued, a court spokesman told the Albany Times Union, with a judge from a lower court selected by the chief judge, Judith Kaye.
The Empire State Pride Agenda, the statewide lesbian and gay lobby group, was up in Albany on May 8 pressing legislators for the first time to go on the record in favor of same-sex marriage rights.
New York’s judges may be influenced by the outcomes of state high court decisions pending in Washington State and especially neighboring New Jersey, both of which are expected to come down in favor of the gay plaintiffs.
Arguing for the gay plaintiffs in New York are the American Civil Liberties Union, the New York Civil Liberties Union, and the Lambda Legal Defense and Education Fund along with some private firms.
It is not certain that the Court of Appeals will rule in favor of the right of gay couples to marry -- the majority of justices, after all, have been appointed by a Republican governor – but if it does, that will probably be the end of it. Speaker Sheldon Silver, while no proponent of same-sex marriage, has assured colleagues that his Assembly will not pass a state Defense of Marriage Act or constitutional amendment against it.Assembly Member Dick Gottfried, the chief sponsor of the state Equal Marriage Rights bill that would open the institution to gay couples, believes that the state legislature would opt for marriage over civil unions because “in New York, the rejection of separate but equal is well rooted.”
If on the other hand the court rules against the plaintiffs, the ball would also be in the legislature’s court and the pressure would build to act just as they did when the court struck down Health Department smoking regulations. In that case, the legislature passed sweeping anti-smoking laws within nine months. While Gottfried does not necessarily believe the legislature would act that fast on the gay marriage issue, he said it would act sooner rather than later, especially if Eliot Spitzer is elected governor, committed as he is to introducing his own bill opening marriage to gay couples.
Spitzer was a featured speaker at an Albany rally for same-sex marriage on May 8. Later in the month, his Senior Counsel, Peter H. Schiff, will be in court arguing that same-sex couples do not and should not have the right to marry under the current law. The city’s Law Department is also arguing against same-sex marriage in the case.
If the opponents of same-sex marriage were worrying that Spitzer and Bloomberg would throw the case against same-sex marriage, they have only to read their briefs. The Attorney General argues that the refusal of the state to issue licenses to the gay couples does not violate the due process or equal protection clauses of the New York State constitution nor is marriage to a partner of the same-sex a “fundamental right.” The exclusion, the state argues, is “rationally based to the state’s legislative interests.”
Spitzer argues that the “state has a legitimate interest in channeling opposite-sex relationships into marriage” and in “uniformity among the states regarding what relationships will be subject to the legal obligations and protections of marriage.” The city makes similar arguments.
While Spitzer argues that he is obligated to defend the state’s marriage statute despite his personal beliefs, Attorney General Robert Abrams did not defend New York’s anti-sodomy statute when it was struck down by the Court of Appeals in 1980. Spitzer said he will introduce legislation to legalize same-sex marriage if he prevails against it in court.
Spitzer’s Democratic opponent for his party’s nomination for governor, Nassau County Executive Tom Suozzi, opposes same-sex marriage and favors civil unions for gay couples, though he was blindsided when the Democrat-controlled legislature in Nassau defeated a domestic partner registry in April.
All of Spitzer’s potential Republican opponents oppose same-sex marriage, including former Massachusetts Gov. Bill Weld who once spoke at wedding for a former aide and his husband. Weld flip-flopped to curry favor with the state Conservative Party, which is adamantly opposed to legal recognition of gay relationships and has since endorsed Assembly Member John Faso for governor.
Fourteen religious and civil rights groups filed friend-of-the-court briefsin April supporting the plaintiffs in the cases going before the Court of Appeals on May 31. Among the most notable are the NAACP Legal Defense and Education Fund, the American Psychiatric Association, the National Organization for Women, the Child Welfare Fund and the Association of the Bar of the City of New York.
Lambda Legal Defense, whose attorney Susan Sommer, will be among those arguing for the plaintiffs in the case, will surely be stressing what was ruled by Justice Doris Ling-Cohan in February 2005: “Similar to opposite-sex couples, same-sex couples are entitled to the same fundamental right to follow their hearts and publicly commit to a lifetime partnership with the person of their choosing. The recognition that this fundamental right applies equally to same-sex couples cannot legitimately be said to harm anyone.”
There has been such interest in the May 31 Court of Appeals hearing that the court will allow it to be webcast at 2 PM that day and subsequently archived. Go to the Court site and click on the webcast in the right hand column.
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
As negotiations continue over New York City’s next budget, which begins on July 1, 2006, immigrant advocates are looking closely at the funding given for what is called the Immigrant Opportunities Initiative (or, IOI), which gives money to more than 100 non-profit organizations for two services specifically geared to immigrants -- English classes and legal services.
This is in contrast to the wide array of human services funded by the city that are available to New Yorkers, both immigrants and non-immigrants. In fact, New York City has one of the largest human service systems in the nation.
But the two programs, English for Speakers of Other Languages (ESOL) classes and immigration legal services, are the only ones specifically considered immigrant services at budget time.
English classes are in high demand in New York City. According to a 2001 New York Immigration Coalition report entitled, “Eager for English: How and Why New York’s Shortage of English Classes for Immigrants Should Be Addressed,” more than one million New Yorkers would like to improve their English. However, there were only 50,000 English classroom seats available – or only enough to meet five percent of the need. Immigrants with improved English skills can find a better job, obtain greater quality health care, be more involved with their children’s education, and pass the naturalization exam needed to obtain U.S. citizenship.
Immigration legal services ensures that immigrants can successfully gain legal status in the United States and become U.S. citizens. In 2004, 537,151 people became naturalized U.S. citizens. Of those naturalized, the second largest group (66,234 individuals) lived in New York City. In addition, an estimated 1.5 million persons with lawful permanent resident status live in New York City, who can eventually apply for citizenship. Due to constantly changing immigration regulations and the backlog in citizenship applications, good counsel is needed to help one navigate the complex immigration system. Increased availability of free or low-cost legal services is critical to protecting immigrants from exploitation by unregulated immigration consultants (also known as â€notarios’) who often provide inaccurate information and charge excessive fees. Many immigrants have been denied lawful permanent residency and/or have been deported as a result of the actions of these fraudulent immigration consultants.
Immigrant worker legal services also has been successful in helping immigrant workers address workplace abuse and exploitation they might face, and receive back wages from employers that incur wage-and-hour violations.
Recognizing the importance of immigrant services to immigrant New Yorkers, outgoing City Council Speaker Peter Vallone Sr. created what was then called the Immigrant Services Initiative in 2001. The initiative, first funded in the 2002 fiscal year budget at $2.5 million, provided funding to 43 non-profit organizations for English classes and immigration legal services. It has remained a priority for the City Council, which has funded it every year since.
Although funding levels decreased in subsequent years, it was increased to $9.1 million for the current budget, which ends in June. As a result, the non-profit agencies that received funding saw their average allocation increase from $50,000 to $75,000, and the total number of groups receiving these funds rose to nearly 130.
Aside from the $9.1 million in Immigrant Opportunities Initiative funding, most of the city’s immigrant services are funded with Federal Community Services Block Grant (CSBG) & Workforce Investment Act (WIA) dollars to support $11.3 million in programs. The Department of Youth & Community Development funds English classes, adult basic education classes, immigration legal services, immigrant youth and immigrant women programs with these monies. However, President George W. Bush has completely slashed all Community Services Block Grant funding in his Fiscal Year 2007 budget proposal.
As with other City Council initiatives and budget priorities, Mayor Michael Bloomberg did not include funding for the Immigrant Opportunities Initiative in his preliminary budget for the coming fiscal year. Unfortunately, this initiative is subject to the annual “budget dance” where the mayor ultimately agrees with the City Council to restore funding for programs he doesn’t include in his preliminary budget. Critics of the budget dance say that it injects funding uncertainty that is unwelcome to these programs and those that depend on them.
With the funding uncertainty of the Community Services Block Grant, stagnant funding from New York State for immigrant services, and New York City’s large immigrant population, funding by City Hall of immigrant services becomes even more crucial in maintaining a city that welcomes and incorporates newcomers. While NYC is fortunate to have an infrastructure that helps immigrants access services they need, advocates argue that a greater investment is needed to meet the demand for these services.
Advocates would like permanent funding for the Immigrant Opportunities Initiative in the final budget this year, seeing this as investment in a group of people who themselves have invested their energies in creating economic, social, and cultural benefits to our society.
Anthony Ng is the Legislative Advocate at United Neighborhood Houses of New York (UNH), the membership organization of New York City settlement houses and community centers.
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The recent wave of immigrant demonstrations throughout the country indicates a level of political engagement that seems to have caught many people by surprise.
However, leaders of immigrant organizations in New York City are far less shocked, having dealt for years with the realities that produced the anger and vitality behind those demonstrations. Over the past decade, immigrants in the city have been forced to adjust to a new reality that has left them increasingly vulnerable.
Ana Maria Archila, the executive director of the Latin American Integration Center, recalls the story of an impoverished single mother of three who came to her organization to learn English. But while a student, “she was trying to get a job and couldn’t find a job and so she tried to get a fake ID,” Archila says. “And there are businesses on Roosevelt Avenue that sell them, and she was engaged in buying one...” The woman was detained and put into deportation proceedings.
“We found ourselves as an organization not really knowing how to support her,” Archila said. “We were missing the sense of urgency until it came knocking on our door through increased enforcement in our neighborhoods." That is why the Latin American Integration Center, which serves Latino communities in Staten Island and Northwestern Queens, now has a “two-pronged strategy” -- “direct service programs” such as English as a Second Language classes, and also “community organizing projects” such as those focused on increasing civic engagement.
To Archila, the fact that there is often a separation between community organizing and providing community services is something peculiar to the United States; this is not the way it works, she says, in Latin America. Given current pressures among the city’s immigrants, community organizations like hers need to "create flexible organizations," Archila argues, that combine "services that meet people's needs and political engagement."
The Latin American Integration Center is not alone in this approach.
The multi-ethnic network of detainees, Families For Freedom , is a group with about 120 members that has developed a model combining both organizing and direct assistance to people in detention or facing deportation.
“We are really only committed to doing casework because of organizing,” says cofounder Aarti Shahani, one of four staff members (who is the author of this month’s immigrant topic page on Gotham Gazette, Legalization and De-Legalization). But direct assistance to detainees is essential to their political efforts.
Prince Brown knows about this firsthand. He himself was a detainee for five years, as the result of a charge for possession of a controlled substance. At first, Brown conducted his own legal work, but says the law library in the facility in which he was held was outdated. Benita Jain, then at NYU Law and now a staff attorney at the New York State Defenders Association’s Immigrant Defense Project, sent him information to help him, and on March 2005 he was freed from jail.
Upon release, Brown became a member of Families for Freedom, attending monthly meetings in Manhattan and Washington Heights, and quarterly meetings in the Bronx and Brooklyn. These meetings serve as a social support network for those facing deportation and their family and friends on the outside, a space for political education to “change the laws,” and a place to plan tactics and strategies
Brown went from being a member of the group to becoming one of its two part-time organizers. Still facing deportation to Jamaica, he says, “I’ve been on both sides; I’m been in looking out and out looking in. The things I received from Families For Freedom, I’m sending to people [in] jail.”
When DRUM (which stands for Desis Rising Up & Moving) began in the year 2000, its executive director Monami Maulik says, the idea was not to provide social services nor even to do advocacy, but rather to build up membership as a way of strengthening the community of South Asians in New York City. But that same year DRUM began working on police harassment in and around Jackson Heights. And the next year was 9/11, when more and more South Asians were being detained. “We had to take on a high level of direct advocacy and casework.”
Over the past two years, Maulik says, the crisis has stabilized, and DRUM has been able to “take it back to community base building.” But they have not stopped providing services, hoping some can become in effect organizing tools. Among the programs Maulik cites are a legal referral network, a "South Asian immigrant resource center" culled from DRUM's past work on "immigration, housing, education", and the Immigrant Justice Project, which has monthly meetings and workshops to “discuss what’s happening in terms of immigration and migrant rights and decisions about what’s happening,” including to learn “how laws are changed in the U.S.”
Immigrant lives are constantly being reinvented, and many immigrant organizations have been adjusting to those changes. The New York Taxi Workers Alliance has used financial assistance and legal clinics to support its immigrant labor organizing work. The Northern Manhattan Coalition for Immigrant Rights has begun to integrate community organizing into its immigration casework. Across ethnicities and issues, the realities of low-wage immigrant communities are forcing organizers and service providers to re-envision what “services” and “organizing” really mean.
Saurav Sarkar, a freelance writer and former staff member of the Asian American Legal Defense and Education Fund, has been involved with several of the immigrant organizations mentioned in this article, including as a volunteer with Families for Freedom. Â