Gotham Gazette

The Place for New York Policy and politics

Topics

Topics

The Fast-Changing Status of Same-Sex Married Couples in New York


While New York State has yet to allow marriage licenses to be issued to same-sex couples, there has been a sudden explosion of activity toward that goal within the past month.

Married Elsewhere, Married Here

The state’s highest legal officer now has said that some New York gay couples who married legally elsewhere can be considered married here.

Attorney General Eliot Spitzer issued an opinion (PDF Format) that while New York did not expressly forbid gay couples to marry, the gender neutral domestic relations law nevertheless was not written with them in mind. A supporter of the right of same-sex couples to marry, Spitzer nevertheless said that town and city clerks should not issue licenses to same-sex couples until the courts rule on the constitutionality of the state marriage law’s exclusion of gay couples. But he also held that same-sex couples validly married elsewhere (as they have been in Holland, Belgium, and Canada) “must be treated as spouses for purposes of New York law.”

New York gay and lesbian couples have been getting married in Ontario and British Columbia since this past summer. They didn’t become un-married when they returned to New York.

After May 17, New York gay couples will only have to go as far as Massachusetts to get married. That’s when the Bay State’s high court has ordered the state to start issuing marriage licenses to same-sex couples, even though the state legislature, meeting in Constitutional Convention in March, have voted to amend the state constitution to limit marriage to man-woman couples, while providing gay couples “civil unions” that would carry the same legal rights and responsibilities associated with marriage. The amendment could not go into effect until late 2006, so gay people will be marrying in Massachusetts next month.There is a wrinkle in the Massachusetts marriage law that may have an effect on New Yorkers seeking to marry there. It forbids clerks from issuing licenses to out-of-state couples whose marriage would not be valid in their home state. Thirty-eight states, but not New York, have laws prohibiting recognition of same-sex marriage. And again, while New York does not license same-sex marriages, the attorney general of New York is of the opinion that the state must recognize valid same-sex marriages licenses elsewhere.

Twenty New York couples were among the more than 4,000 who tied the knot in San Francisco after Mayor Gavin Newsom started issuing licenses to gay couples on February 12. That process was stopped by California’s high court on March 12 and the validity of the licenses will be resolved in court cases.

New York City has a law, signed by Mayor Bloomberg in 2003, that requires the city to recognize domestic partnerships, civil unions, and same-sex marriages performed in other jurisdictions. Bloomberg has said that while this means the city will recognize those same-sex unions contracted in Vermont, Canada, Holland, and Belgium, he will not recognize same-sex marriages performed in San Francisco.

Lawsuits To Win The Right To Marry

New York City’s Corporation Counsel, Michael Cardozo, wrote to City Clerk Victor Robles, “Both New York State statutory law, and its interpretation by New York courts, support the City Clerk’s ongoing practice not to issue licenses to, or perform marriage ceremonies for, same-sex couples.” But when Cardozo was president of the New York City Bar Association in 1997, he approved a report calling marriage a “fundamental right” that be open to “all couples, regardless of sex,” the Daily News reported. He told the paper that his approval of the report “did not me I personally agreed with every legal point or the conclusion,” but that he thought “the legal issues were thoughtfully researched.”

Gay couples are now suing in New York, Rockland, and Ulster counties to win the right to marry in New York State. Lambda Legal Defense is representing Nevin Cohen and David Hernandez from Manhattan. Norman Siegel, once director of the New York Civil Liberties Union and now in private practice, has brought a case on behalf of ten gay couples from Nyack and is seeking a judgment that the state marriage law is unconstitutional because it bars licenses for same-sex couples. And in Ulster County, the New York Civil Liberties Union and the firm of Paul, Weiss, Rifkind, Wharton & Garrison are defending New Paltz Mayor Jason West who has been charged with marrying 25 same-sex couples without licenses.

Religious Defiance

While the domestic relations law of the state may be open to interpretation as to whether or not gay couples are entitled to marry, the law explicitly prohibits agents of the state (mayors, clerks, ministers, etc.) from marrying couples without licenses. The same Ulster County district attorney who charged Mayor West with breaking that law also went after two Unitarian ministers who performed multiple same-sex nuptials in New Paltz in March. All their cases are before the courts and they face fines of $500 and up to a year in jail on each count.

More than 30 ministers, priests, and rabbis in New York gathered on the New York City Hall steps on March 18 and defiantly pledged to break the law that forbids them to perform marriages for unlicensed couples, as I reported in Gay City News. Rev. Pat Bumgardner, pastor of the gay Metropolitan Community Church of New York performed two same-sex weddings--one for two men, another for two women--clearly stating that she was acting in her capacity as an agent of the state. Rabbi Ellen Lippman of Congregation Kolot Chayeinu in Park Slope, Brooklyn married another lesbian couple. Manhattan District Attorney Robert Morgenthau announced that he did not intend to prosecute either Rev. Bumgardner or Rabbi Lippman, saying in a statement, “The criminal courts are not the appropriate forum for the resolution of these issues. Ultimately, they will be resolved in civil lawsuits, at least two of which are now pending.”

While it is illegal for the minister to perform a marriage for unlicensed couples, the law also says that couples so married are legally married if their intent was to obtain a license afterwards. It is possible, then, that the same-sex couples wed by Mayor West and these ministers and rabbis will have to be recognized as married by New York.

Bloomberg’s Back And Forth

Mayor Bloomberg, who maintains that he has no official position on same-sex marriage, told a gathering of lesbian and gay journalists that he did favor changing the marriage law to include gay couples. But the next day his press office would not confirm that he had said it. Bloomberg, a former Democrat who is now the biggest individual contributor to the Republican Party in the nation, will be playing host to Republican National Convention in late August and early September that will nominate for re-election President George Bush, a supporter of a constitutional amendmentto ban same-sex marriage. While Bloomberg and Governor George Pataki do not support that amendment, the mayor seems reticent to emphasize the issues with which he disagrees with his new party.

Opposition, Neutrality, Support

There are pockets of vocal opposition to same-sex marriage in New York. The state’s Catholic bishops went to Albany to lobby against it in March, with Brooklyn’s new Bishop Nicholas DiMarzio worrying that sanctioning same-sex marriage could open the door to people marrying their “pets.” On March 14, thousands of Pentecostal Latinosrallied outside the Bronx courthouse in favor of Bush’s constitutional amendment.

While the state legislature has been disinclined to take up bills either banning or approving of same-sex marriage, by the end of the March, Republican Senate Majority Leader Joseph Bruno was looking at the possibility of taking up a state Defense of Marriage Act (limiting marriage to man-woman couples), something Democratic Speaker Sheldon Silver has told colleagues that his house will not consider. The State Democratic Party is on record in favor of same-sex marriage, the Conservative Party is vehemently opposed, and Governor Pataki, leader of the state's Republicans, has said that the marriage laws should remain as they are--though he has granted some incremental rights for gay domestic partners in recent years.

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” wrote the United States Supreme Court in overturning laws in sixteen states banning interracial marriage in 1967. Despite the reference to men—and not men and women—the court surely did not foresee that men would want to marry men and women women in the early 21st century. But it is already a legal reality in New York, at least for a few couples, and it looks as if it will be left to our courts to decide if it will be open to all same-sex couples soon.

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.

The Right of Religious Groups to Discriminate


 <ahref="http://www.salvationarmy-newyork.org"target="new">The Salvation Army's determination to impose a religious test on its social service employees has brought them a federal lawsuit from the New York Civil Liberties Unionand opened the whole question of the degree to which religious organizations are subject to human rights law, particularly if they are receiving government money to provide services.

Several longtime employees of the Salvation Army are suing because they said that, though they worked on "secular, publicly financed activities like caring for children and counseling young people with AIDS," according to the New York Times , they were "pushed out" when they objected to having to specify the churches they had attended over the last ten years, name their ministers, and agree to the Army's mission to "preach the Gospel of Jesus Christ."

The Salvation Army released a statement saying that its policies and procedures were "entirely consistent" with the laws governing religious institutions in New York. The city's human rights law , like most anti-discrimination statutes, contains a limited religious exemption. New York's clause (§ 8-107-12 Unlawful discriminatory practices) reads as follows: "Religious principles. Nothing contained in this section shall be construed to bar any religious or denominational institution or organization or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization from limiting employment or sales or rental of housing accommodations or admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained."

Thus, even though city law forbids discrimination on the basis of sex, the Catholic Church cannot be hauled into court for not ordaining women to the priesthood. The city also prohibits religious discrimination, but all of the students who go to a Muslim school are of that faith and that is not, on its face, an illegal discriminatory practice. But if a secretary at the Mormon Center were to be denied a job on the basis of race, he or she would have a case, even if the organization were not receiving any public money.

When religiously affiliated organizations contract with the city to provide social services--and many do, for tens of millions of dollars--they are subject to more scrutiny under the human rights law. While the majority of the clients of an agency such as Agudath Israel may be of the Jewish faith because of where the service is situated, they would run afoul of the law if they turned away non-Jewish clients in the course of work performed with city funds. There is a Jewish Home and Hospital on the Upper West Side of Manhattan that still has special programs for Jewish residents, but their bulletin board is chock full of events for Christians and other groups. It could not receive the public funds and continue only to serve the Jewish elderly. Its mission is to provide a range of services "in keeping with our Jewish heritage," but most of those served are not themselves Jewish today.

Groups receiving city money must certify that they are in compliance with the city's human rights law, even if the organization is not based in New York City.

The City Council is on the verge of passing an Equal Benefits Bill that will require contractors with the city to provide domestic partner benefits for their employees if they give them spousal benefits. Mayor Bloomberg has raised legal objections to the bill, Intro 137, but no one else has testified against it in its two hearings , the last of which was February 27. The mayor has not said whether he will veto the bill, but it has a veto-proof majority of 38 sponsors in the City Council.

Similar legislation has been in force in San Francisco since 1997, leading to more than 80 percent of the private sector domestic partner benefits in the country because major firms doing business with San Francisco ended up providing the benefits to their employees nationwide.

The Salvation Army in San Francisco dropped their contracts with the city rather than comply with the law, because they believed that recognizing domestic partners compromised their religious teaching against homosexual relations. But the Catholic Archdiocese of San Francisco maintained their contracts and complied with the law by allowing their employees to name one other household member on their benefit policies regardless of relationship.

Catholic Charities in New York has yet to say publicly how they will deal with the Equal Benefits Bill, though there are Catholic hospitals already giving domestic partner benefits to their unionized employees under their contract with Local 1199. The Salvation Army here has already indicated that they might forgo their $89 million in city contracts rather than comply. The national church just received a $1.5 billion bequest from Joan Kroc of the McDonald's hamburger fortune that may soften the blow.

Among those testifying for the equal benefits bill was the Right Reverend Catherine Roskam , Suffragan Bishop of the Episcopal Diocese of New York that has been providing domestic partner benefits for years. "I am tired of the assault by the political right on the division between church and state," she said. Quoting George Washington, whose portrait looms over the ornate City Council chamber, "This land is no more Christian than it is Hebrew or Mohammedan."

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.

Internet resources for what you need to know on NYC Civil Rights


The Topic
Civil rights refers to the basic rights and freedoms to which all humans are entitled, and to the laws that prohibit discrimination on the basis of race, creed, gender, age, sexual orientation, and many other criteria.
The Context
New York is the most diverse city on the planet, home to people of every race, nationality, language group, religion, sex, and sexual orientation, and to some of the world's premiere human rights groups. There have been intense intergroup conflicts throughout the city's history, from the Draft Riots of 1863 to the Crown Heights riots of 1992. But more amazing is how well such varied peoples have gotten along for hundreds of years.

Mayor Fiorello LaGuardia created a Committee on Unity after some race riots in 1943, in order "to make New York City a place where people of all races and religions may work and live side by side in harmony and have mutual respect for each other, and where democracy is a living reality." Eventually, the city and state governments passed laws against discrimination and established agencies to enforce them.

The Reporter
Andy Humm is a former member of the City Commission on Human Rights. He is co-host of the weekly Gay USA on Channel 35 on Thursdays at 11 PM.
The Archives
See past monthly updates for Civil Rights.

 

Civil Liberties since 9/11. Also: Vacant seats on the human rights commission; the new local about same-sex marriages.

Monica Terazzi admits that, a year after the terrorist attacks, Arab Americans in New York are no longer subjected to the threats and harassment that many of them underwent in the immediate aftermath. "We have experienced a lot fewer incidents of violent crimes," said Terazzi, the New York director of the American Arab Discrimination Committee. Indeed, the City Commission on Human Rightshas not seen many complaints by Arab Americans of their civil liberties being violated.

But 9/11 still holds a special threat to the civil liberties of Arab-Americans in New York -- as well as to that of the rest of New Yorkers.

"We are still seeing a lot of workplace discrimination and incidents of police harassment. " Terazzi said. She is especially concerned that the government is detaining Arab immigrants and holding them for months on end for such infractions as overstaying their visas. "A Palestinian man with Jordanian citizenship was recently deported for not reporting an address change," she said. "This had never previously been a deportable offense... Everyone knows someone who has been harassed or detained. It is pretty scary, the notion that police can swoop down on your house and disappear with your husband."

Air travel poses special problems for those of Middle Eastern descent. "Many Arab Americans have been pulled out of line at airports," she said, despite assurances from United States Transportation Secretary Norman Minetathat there would be no such racial profiling. "Arab American passengers have been ejected from flights after going through security. I have spoken to lots of people who have faced so much harassment that they say, 'I'm not traveling again.'"

It is true that most of the incidents that Terazzi talks about are "anecdotal" -- they are not listed in official statistics, such as complaints registered with the City Commission on Human Rights. "People don't want to draw attention to themselves," Terazzi explained. "There is a fear of anything associated with the government." Her group held a town meeting in Bay Ridge with local and federal government agencies represented and the reaction from the crowd was "we don't want to go there; it's the government."

Staff members of the human rights commission are conscious of this reluctance, and have been speaking to small groups of Arab Americans, encouraging them to make reports and reminding them that they do not have to be citizens to do so. But few have come forward, despite an assurance from Commissioner Patricia L. Gatling that "discrimination has no place in this city -- not today, not tomorrow, and not on the anniversary of the attack on our nation at the hands of terrorists." She said that the city human rights law "is one of the most comprehensive in the nation" and that she and Mayor Michael Bloomberg are committed to "the vigorous enforcement of the law that protect these rights. And that protection extends to all New Yorkers, not just some of them."

Indeed, all New Yorkers should be concerned about the threats to their civil rights, says Donna Lieberman, the director of the New York Civil Liberties Union. "In September and October of last year," she said, "I didn't dare contemplate how bad things would get. Some of the measures that the government has adopted have seriously eroded our fundamental civil rights and cry out for reversal." One example is the TIPS program, the Bush plan to recruit millions of volunteers to do domestic surveillance. Another is the "facial recognition technology" which is being employed at the Statue of Liberty, which is "about as accurate as heads or tails" in identifying evil-doers, while creating "a Big Brother-type of encroachment."

"What's heartening," Lieberman said, "is that...the American people have resisted to a certain extent. That's why we have not seen a proliferation of military trials. That's why TIPS has been met with resistance."

In New York, Lieberman said, the state legislators "enacted tough anti-terrorism legislation without debate or thoughtful consideration in an effort that was designed more to attain political capital than protect security. It increased death penalty application and defined terrorism in a vague and chilling way." Despite the rush to pass the law last year, "we haven't seen any prosecutions." She believes the law would not hold up in court.

The New York City Department of Education has a whole page of resources for administrators and teachers on how to help students cope with the traumatic effects of September 11, but there is scant acknowledgement in the school system's special materials on the stigmatization to which many students of Middle East origin or descent have been subjected. The resource page does, however, promote a special post 9/11 series on PBS-TV's "In the Mix" called "The New Normal" that focuses on dealing with ethnic, racial, and other human differences. And the "9/11 as History" program cited from the Families and Work Institutedoes include a lesson plan that deals with "compassion and diversity."

New Yorkers concerned about human rights should know about two events timed to the one-year anniversary. Families for Peaceful Tomorrows, an organization of family members of those who perished on 9/11, is sponsoring a march across the Brooklyn Bridge on September 10. And on September 11 at 6 PM, a candlelight vigil will begin at Atlantic and Court Streets in Brooklyn, the heart of the Arab American community in New York, to gather for "remembrance, prayer, reflection, and unity," according to Terazzi.

New Human Rights Commissioners to be Named This Month

Mayor Bloomberg is finally getting around to filling twelve vacancies on what is supposed to be the 15-member City Commission on Human Rights. An announcement is expected in mid-September.

The beleaguered agency, which lost 75 percent of its funding under Mayor Giuliani while ironically gaining Charter status, got a new chairperson, Patricia L. Gatling, back in February. She is the only paid member of the Commission and directs the staff. But only two of the non-salaried commissioners are left-Marta Varela, who chaired the agency under Giuliani, and Derek Bryson Park. This minimum of three commissioners is required to make final determinations on cases. When all fifteen commissioners are on board, rotating panels of three review decisions and make recommendations to the full commission.

Gay Rights Continue to Advance in Wake of 9/11

In June, I wrote an Issue of the Week on "The Rights of Same-Sex Partners" and how they had advanced after the public saw how domestic partner survivors of the victims of 9/11 received second class treatment. While most of these are state and federal issues, the City Council is doing what it can to bring about spousal equivalency for domestic partners, gay and straight. In August, it passed Intro 114 by a vote of 34 to 7, with four abstentions. In it, New York City recognizes domestic partnerships or same-sex marriages contracted in other jurisdictions under our domestic partners law. In other words, the couples will not have to register again in the city just as married couples don't have to get married here to have their union acknowledged. Mayor Bloomberg signed the bill on August 27 and it went into effect immediately.


Recommended Links:

  • New York City Commission on Human Rights- 40 Rector Street, New York, NY 10006; (212) 306-7500 The Commission enforces the City's Human Rights Law which prohibits discrimination based on race, creed, color, age, national origin, alienage orcitizenship status, gender (including sexual harassment), sexual orientation, status as a victim of domestic violence, disability (including HIV/AIDS relatedconditions), lawful occupation, arrest or conviction record, marital status, family status, and retaliation. The Law prohibits discrimination in employment, housing and public accommodations, as well as bias-related harassment.
  • New York State Division of Human Rights- One Fordham Plaza, 4th Floor, Bronx, New York 10458; (718) 741-8400 The State Division of Human Rights serves as an alternative to the court system for resolving discrimination claims--in employment, in places of public accommodation, resort or amusement, in educational institutions, in commercial space and in credit transactions and to take other actions against discrimination. The agency is responsible for developing civil rights legislation and policy for the State of New York, and for promoting awaren essof civil rights issues and remedies.
  • American Civil Liberties Union- 125 Broad St., New York, NY 10004 "The American Civil Liberties Union (ACLU) is our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States."
  • Asian American Legal Defense and Education Fund- 99 Hudson Street, 12th floor, New York, NY 10013; (212) 966-5932 is "the first organization on the east coast to defend and promote the legal rights of Asian Americans through litigation, legal advocacy, community education, leadership development and the position of free legal assistance to low-income and immigrant Asian Americans."
  • Human Rights Watch- 350 Fifth Avenue, 34th floor, New York, NY 10118-3299 USA; (212) 290-4700 "Human Rights Watch is dedicated to protecting the human rights of people around the world. We stand with victims and activists to prevent discrimination, to uphold political freedom, to protect people from inhumane conduct in wartime, and to bring offenders to justice."
  • Lambda Legal Defense and Education Fund- 120 Wall Street, Suite 1500, New York, NY 10005-3904; (212) 809-8585 The nation's oldest and largest legal organization working for the civil rights of lesbians, gay men, and people with HIV/AIDS.
  • NAACP Legal Defense and Education Fund- 99 Hudson St., New York, NY 10013; (212) 219-1900 "Committed to staying on the cutting edge of the movement for racial justice."
  • National Organization for Women/NYC- 150 W. 28th St., #304, New York, NY 10001; (212) 627-9895 NOW/NYC "works towards equality for women with a focus on several key issues: battling racism and violence against women, guaranteeing reproductive rights, advocating lesbian and bisexual rights, fighting for the passage of the Equal Rights Amendment, and generally working towards economic, educational, and political equity. The chapter provides educational outreach and takes part in political lobbying, zap actions and demonstrations in response to various social situations. The Service Fund of NOW-NYC also offers referrals, support groups, and clinics for women in need."
  • New York Civil Liberties Union- 125 Broad St., New York, NY 10004; (212) 344-3005 The NYCLU is "a statewide organization dedicated to the protection and enhancement of New Yorkers' civil liberties as enumerated in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York."
  • Puerto Rican Legal Defense and Education Fund - 99 Hudson St., 4th floor, New York, NY 10013; (212) 219-3360 "Through litigation, policy analysis and education, the Puerto Rican Lega lDefense and Education Fund works to secure, promote and protect the civil and human rights of the Puerto Rican and wider Latino community."


Print Friendly and PDF

Editor's Choice


Gotham Gazette: New York Voters Approve $4.2 Billion Environmental Bond Act
New York Voters Approve $4.2 Billion Environmental Bond Act
Gotham Gazette: 
New York City Voters Approve Racial Justice Ballot Measures
New York City Voters Approve Racial Justice Ballot Measures
Gotham Gazette: 
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Gotham Gazette: 
City Council Examines Low Voter Turnout, Moving Local Elections to Even Years City Council Examines Low Voter Turnout, Moving Local Elections to Even Years