Gotham Gazette

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Same-Sex Marriage Loses

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.

Why It Was Struck Down

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.”

Bloomberg’s Reaction

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.

The State Of Gay Couple Recognition Elsewhere

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.

What Now?

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.  

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