When in February New York State Supreme Court Justice Doris Ling-Cohan ordered New York City to start providing marriage licenses to same-sex couples, Mayor Michael Bloomberg directed the city’s law department to appeal the decision.
Ten months later, the justice’s decision has been struck down in a 4-1 ruling of the New York State Appellate Division.
The case is not over yet. Lambda Legal Defense, a gay rights advocacy group that brought the suit on behalf of five same-sex couples, will appeal the latest ruling to the Court of Appeals, the state’s highest court.
There are also four other same-sex marriage cases pending in various appeals courts in New York, all of which lost at the trial level.
Justice Milton Williams, writing for the majority of the First Department of the Appellate Division, in the case called Hernandez v. Robles, found that the current state law's prohibition of marriage to anyone other than male-female couples “expresses an important, long-recognized public policy supporting, among other things, procreation, child welfare and social stability--all legitimate state interests.” He declared that Justice Ling-Cohan erred in having ruled last February that New York’s Domestic Relations Law is unconstitutional because it does not permit same-sex marriage. Her decision in effect created “a new constitutional right,” Williams wrote, an act that “usurped that of the legislature.”
Justice David B. Saxe, the only dissenter in the Appellate Court ruling, wrote that “plaintiffs have established a violation of the liberty interests protected by the due process clause of our state constitution.” He added, “Employing the reasoning that marriage must be limited to heterosexuals because that is what the institution has historically been, merely justifies discrimination with the bare explanation that it has always been this way.”
New York City has offered some form of domestic partner rights since the years of former Mayor Ed Koch, establishing a registry under former Mayor David Dinkins, who later settled a lawsuit with gay teachers that granted all city employees health benefits for their domestic partners. Those rights were codified into law in the second administration of former Mayor Rudy Giuliani.
But Michael Bloomberg had resisted explicitly supporting the right of gay couples to marry -- until Justice Ling-Cohan’s ruling. And, when he finally came out in support of gay marriage, he simultaneously announced he would go to court to fight that right. Congressman Barney Frank of Massachusetts called Bloomberg’s appeal “terrible for us” gay people, because it prevented thousands of gay couples from being legally married by the time the case is decided by the Court of Appeals, probably sometime in 2007.
But Bloomberg reasoned that that was exactly why he was ordering the appeal, because there would be “chaos” if gay couples could marry in the city, and then have their marriages nullified by a later court ruling.
After the appellate court’s recent reversal, Mayor Bloomberg issued a statement: “As I have said, this issue should be decided by the state’s highest court and I assume today’s decision will be appealed. If today’s decision is affirmed by the Court of Appeals, I will urge the legislature to change the State’s Domestic Relations Law to permit gay marriage.”
So far, the bills in the State Senate and Assembly to open marriage to same-sex couples have gone nowhere. On the other hand, neither has there been any legislative action on a state Defense of Marriage Act to explicitly ban gay people from marrying.
Asked why the mayor is not lobbying for gay marriage rights if he believes only the legislature has that power, Kate Ahlers of the city’s law department said, “I think he is doing it in tandem. It is important to have legal clarification.” The city’s briefs in this case, which include references to the bible, argue only the legislature can make this change.
Meanwhile, Bloomberg has moved to recognize the validity of the marriages of same-sex couples legally married elsewhere, such as Canada which has welcomed American gay couples to marry there. Same-sex marriage is also legal in the Netherlands, Belgium, and Spain, but it is more difficult for non-residents to marry in those countries.
Most European nations have some form of gay partner recognition, including the United Kingdom which just started civil partnerships on December 5 with Sir Elton John and his partner David Furnish among the first to register.
South Africa’s high court ruled on December 1 that parliament must rewrite the law to allow same-sex couples to marry. The court gave the legislature a year to fashion a solution rather than ordering an end to the discrimination immediately.
More than 40 American states ban same-sex marriage in law and an increasing number have enacted state constitutional amendments to block gay couples from marrying or entering into civil unions or domestic partnerships.
Massachusetts is the only state that lets gay couples marry--by an order of their Supreme Judicial Court in 2004--and at present the couples have to be Bay State residents. Connecticut began offering civil unions to same-sex couples this year via legislative act and Vermont did so in 2000. Hawaii, California, and New Jersey offer limited domestic partner benefits, with California’s system most closely mirroring marriage rights.
Susan Sommer of Lambda said the plaintiff couples in Lambda’s suit are “disappointed, but they knew there was a good chance we’d be reversed by this court. We’re in this for the long run. On the bright side, they know we’re one step closer.”
Alan Van Capelle, director of the Empire State Pride Agenda, a gay lobby group, said, “Lesbian and gay couples fall in love, we make the same commitments married couples make, and many of us are raising children. We are families in every sense of the word. We should not be denied the literally hundreds of rights and protections the state provides married couples and their families.”
That sentiment is not shared by the majority of voters in this country, though polling in the Northeast is more supportive. The U.S. Congress passed a Defense of Marriage Act by a 5-1 margin in 1996, forbidding federal recognition of same-sex marriage and allowing states not to recognize legal same-sex marriages from other states. It was signed by President Bill Clinton and supported by now Senator Hillary Rodham Clinton as well as by then-Representative Chuck Schumer, none of whom have changed their positions. They do, however, oppose President George W. Bush’s proposal for a federal constitutional amendment to ban same-sex marriage.
The Court of Appeals is no sure thing for the pro-gay marriage side in this case. Just three of the seven justices are appointees of former Governor Mario Cuomo, a Democrat, and one of them is set to retire in September. Governor George Pataki, while considered a moderate Republican, has appointed more conservative jurists.
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
Vanessa David was happy working for the Department of Education, delivering sheetrock and other construction material to school construction sites. But after nine months on the job her supervisor fired her. David believed she was discriminated against, as a woman, an African-American, and as a lesbian, and so she filed a complaint with the City Human Rights Commission.
That was almost seven years ago. The complaint went nowhere, at one point commission staff telling her that it would be difficult to prove discrimination, even though she had been the only woman among 45 employees at the Division of Trucking, and only one of three African-Americans. “Certain trades belong to the Irish, some to the Italians,” she recalled being told.
“Even with the support of my union, my supervisor still has his job, the commission still isn’t investigating my case, and I probably have a three-year court battle left,” she said earlier this year at a City Council hearing in support of a proposed new anti-discrimination law, Intro 512-A. “I believe that Intro 512 could have prevented many of these problems.”
The bill, which is called the Human Rights in Government Operations Audit Law (or Human Rights GOAL), is intended to “stop discrimination before it happens” according to its supporters at a coalition named the New York City Human Rights Initiative.
“We need to anticipate discrimination before it becomes a legal matter and harmful,” said outgoing Councilmember Bill Perkins, the bill’s chief sponsor.
“We know there are inequalities in city employment and services,” said Barbara Schulman of the Urban Justice Center’s Human Rights Project, a leader in the initiative. “They are not the product of malicious intentional decisions to exclude or neglect particular groups,” but of “habit, of conducting business as usual, and of insufficient avenues for input from those affected by policy.”
Betty Powell, a veteran Brooklyn-based diversity trainer, testified in April that the law would require us “to look with unblinking candor at all our city agencies’ programs and policies, employment practices, budget allocations, service deliveries, etc. [and] ascertain through audit and analysis, not whether or not, but how the racial and gender gaps show up in our city’s work and workplaces, and then rigorously support historically unparalleled, proactive structural solutions.”
As former Mayor David Dinkins testified at that same hearing, the law could prevent many discrimination lawsuits against city agencies, and thus save tax dollars, by “identifying potentially harmful policies in advance” rather than provide “redress for discrimination after the fact,” as the city’s current Human Rights Law does.
The bill has 32 co-sponsors in the City Council, including outgoing Speaker Gifford Miller. But advocates say that Miller’s support has been tepid, and the Bloomberg administration opposed an earlier version of the bill. The offices of both Miller and Bloomberg say they are now “reviewing” a new draft of it.
Anthony Crowell, special counsel to the mayor, testified that the administration supported many of the goals of the proposed legislation, but had a problem with its language, which ignores, he said, “the real progress we have already made” in preventing discrimination, declines to “adopt a realistic approach to governing,” and makes everything mandatory. “These mandates are so broad, and so vague, that they would cause endless disputes over their intent and bureaucratic confusion.”
To push the legislation along, its supporters held a rally/press conference on the steps of City Hall shortly before Election Day, participants holding up signs with big red lips on them and the words: “Real Solutions, Not Lip Service.”
“We hear all the time how diverse the city is,” Craig Gurian, director of the Anti-Discrimination Center of Metro New York , said at the October rally, “but New York City and the New York metropolitan area remain among the most segregated places in the nation.” It is in the city’s “self interest,” given the millions it pays out in discrimination suits annually. “Any sensible entity--whether it’s a hospital, a corporation, or even a municipality -- always needs to be taking risk reduction steps.”
The proposed legislation tries to make the city apply international human rights law, particularly the Convention on the Elimination of Discrimination Against Women , signed by the United States in 1980 but not ratified by the Senate, and the Convention on the Elimination of All Forms of Racial Discrimination , which was ratified. This bill goes further, mandating that all city agencies take a proactive approach to monitoring inequities and preventing discrimination by educating the staff and public about its provisions, conducting audits of compliance and developing action plans in response, and seeking the input of the city’s diverse communities in doing so.
Under the bill, a newly-created eight-member Human Rights Task Force, appointed by the mayor, would be charged with implementing the law. The Commissioners of Citywide Administrative Services and Human Rights would serve ex officio along with the Chair of the Equal Employment Practices Commission. The law would also create a 13-member Human Rights Advisory Committee, including the comptroller, public advocate, appointees of the five borough presidents, five members appointed by the City Council, and a chair picked by the mayor with the council’s advice and consent. This committee’s function would be “to advise on the guidelines and procedures” used by the Human Rights Task Force.
Ejim Dike, a leader of the Initiative, said, “Race, gender, sexual orientation, and neighborhood determine whether you get services, health insurance, and how long you will live.” She believes that evident disparities require the new medicine of this legislation.
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
The Department of Homeland Security frequently fails to follow up on leads that foreign visitors have overstayed their visas, according to a new report. Of the 301,046 leads on possible visa violators reported to the Immigration and Customs Enforcement agency in 2004, only 4,164 cases were formally pursued, resulting in just 671 apprehensions. The visa overstay population in the United States is now estimated at 3.6 million.
President George Bush once again urged Congress to adopt a temporary-worker program that would allow some undocumented immigrants to remain in the United States for as long as six years. The plan was first proposed in January 2004, but it has run into resistance. Critics argued that allowing more immigrants to compete in the job market will drag down wages.
However, a new study shows immigration in the 1990s actually increased the average wage of American-born workers by 2.7 percent. The study also said that immigrants do not always compete for the same jobs as American-born workers."The two groups are not 'perfect substitutes' even when they have similar education and the same occupation. A Chinese cook is not the same as a Texas barbecue chef."
If immigrants' effect on the economy is a subject of dispute, their increasing political clout is clear, at least in New York City. Mayor Michael Bloomberg launched his re-election campaign with a commercial in which he speaks in Spanish, and ended it with ones in which he speaks Chinese, Korean and Russian."It's especially appealing to the people of the older generation," said Justin Yu, of The World Journal, a Chinese newspaper. "They really feel they connected with him because he's using the same language."
The following stories -- translated into English from the Bengali, Chinese, Polish, Russian, Spanish and Urdu press via our partner, Voices That Must Be Heard -- can be access through The Citizen.
Transporting Illegal Immigrants
From Hoy
Greyhound bus is implementing a policy that prohibits its employees from selling tickets to undocumented immigrants.
Imam Resigns From the Police Department over 9/11
From Muslims Weekly
An imam slated to be sworn in as a Fire Department of New York chaplain resigned last week because he doubted the U.S. government's official story blaming 19 hijackers for the events of September 11, 2001.
Day labor Center in Flushing
From World Journal
Although some companies are still taking a wait-and-see attitude, many business owners support the creation of the day-labor center.
The Unemployed
From World Journal
The latest homicide case in Chinatown tells of the disappointment, desperation, pain and suffering of unemployed immigrants.
Without Insurance
From Hoy
New study reveals that people who are poor or without insurance are taken to public hospitals, even when the facility closest to their residence is a private one.
Are We Good Neighbors?
From Russian Bazaar
A letter to the editor wonders how people view Russian immigrants.
Lottery Visa
From Irish Echo
Applying to the lottery has become an entirely online process, leading to an explosion of Web sites that offer to help people with their applications for a fee.
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