Gotham Gazette

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The Right To Marry

Assemblyman Daniel ODonnell from the Upper West Side and his partner John Banta are among 13 same sex couples who have commenced a lawsuit against the State of New York and the New York State Department of Health, claiming the right to marry. According to the complaint, which seeks to declare the state's Domestic Relations Law unconstitutional, "they are here to ask that this Court perform what is perhaps its most solemn and sacred duty -- namely, ensuring that the basic rights of being a New Yorker and an American are extended to all... ."

The case of Sylvia Samuels, Diane Gallagher et al v New York State was filed in Supreme Court in Albany on behalf of couples from various parts of the state including Brooklyn and Manhattan. The complaint alleges that "the institution of marriage reflects legally the reality of life as a committed couple, creating vitally important protections, rights and obligations." The plaintiffs submit that "marriage is the universally recognized social structure...both a personal and a very public commitment.”

The lawsuit, the third such to be commenced in New York this year, relies on the equal protection and due process clauses of the State Constitution which protects against discrimination based on sexual orientation. "Denying same sex couples the ability to marry...deprives them of the equal protection of the laws based on their sexual orientation." Plaintiffs' counsel argue that New York State's constitution guarantees same sex couples the right to marry, but that the Domestic Relations Law which governs marriage does not. This law, they argue, is therefore unconstitutional. Specifically, it “discriminates based on gender because it allows a man and a woman to marry, but does not allow a man to marry a man, or a woman to marry a woman."

According to the complaint, the plaintiffs’ rights of free speech have also been violated. "Marriage is an important public act of speech that represents to the community at large the nature of two people's commitment to each other. The public expression of emotional support and public commitment two people make when they marry is a unique form of public expression that can only be made through a civil marriage ceremony or contract. " Equal access to this "unique public act of speech must be provided equally regardless of gender or sexual orientation."

Court papers filed refer to earlier discriminatory marriage laws such as disallowing slaves to marry and criminalizing interracial marriage. But plaintiffs argue, " Having created the institution of civil marriage through which individuals can proclaim their commitment in a unique way, the state cannot allow access to that institution on a discriminatory basis."

The most recent US census counted 46,449 New York State households as being comprised of same-sex unmarried partners, according to plaintiffs. They also cite an Urban Institute study that says New York City has the largest gay population of any American city. "The State of New York has had a long and distinctive tradition of affording protection to gays and lesbians...and New York has long been a center for gay and lesbian life and culture."

While plaintiffs commend efforts at civil unions and domestic partnerships, and many of them have formalized their relationship in that way, "they fall short of reflecting the commitment that two people who build a life together have, and they fail adequately to protect the relationships of same sex couples."

Some of the New York City residents have registered under the domestic partnership law, but that does not provide the same rights benefits or obligations as marriage such as medical decision making, adoption, rights of inheritance, tax benefits. Moreover, domestic partnerships are not necessarily recognized by employers, insurers or other jurisdictions.

The first named parties to the action are two women who have been together for 24 years, raised children and have grandchildren. One of them, Sylvia Samuels, who works for the city, is seriously ill and wants her partner, Diane Gallagher, to be able to make health care decisions and hospital visits which may be limited to a spouse or family member as traditionally defined.

Alice J. Muniz, a New York City police officer, working out of the 23 precinct in East Harlem, has maintained a committed relationship with Oneida Garcia for the last four years, living together in Brooklyn with their children from prior relationships. Marriage, they say, would have a positive effect on their children.

John Wessel and William O'Connor are about to celebrate the 25th anniversary of their relationship. They are in the art business and own property together. One of their reasons for wanting to marry is to benefit from inheritance tax laws now limited to married survivors only.

Attorney Daniel O'Donnell, who is the first openly gay man to be elected to the Assembly (he is also Rosie O’Donnell’s brother), has been in a couple with John Banta since they met at college in the late 1970s. They describe themselves as "soulmates," but have not registered as domestic partners. "Nothing short of marriage is acceptable," they say.

Counsel for the plaintiffs summarize the lawsuit this way: "Defendants can offer no adequate justification for the exclusoin of same sex couples from the legal institution of marriage."

The plaintiffs are represented by the Manhattan law firm of Paul, Weiss, Rifkind, Wharton & Garrison, LLP, the ACLU and the NYCLU. An answer in opposition is expected to be filed by Attorney General Elliot Spitzer.

Emily Jane Goodman is a New York State Supreme Court Justice















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