Gotham Gazette

The Place for New York Policy and politics

Advancing Rights

With the election of Barack Obama as president and increased Democratic majorities in both houses of Congress, civil liberties groups are chomping at the bit to restore constitutional rights compromised or eliminated by the Bush administration. The American Civil Liberties Union already has issued a very long list of "Actions for Restoring America" that it says will "begin repairing the damage" it contends Bush did to constitutional rights.

New York has its own African American liberal executive in Gov. David Paterson, and (like Congress) both houses of the state legislature are in Democratic hands -- if not Democratic control given the machinations of three Democrat Senator holdouts. This has civil rights groups here eager (for the most part) to enact their agendas.

Much has been said about the Democratic takeover of the New York State Senate and whether or not the new majority will take up a bill allowing same-sex couples to marry here. State Sen. Ruben Diaz Sr. of the Bronx, one of three Democrats who refuses to commit to voting for Democratic Sen. Malcolm Smith as majority leader, has said he will not vote for a leader who will not pledge to block any marriage equality bill.

Beyond same sex marriage, a whole slew of civil rights legislation that has been passed by the Democrat-led Assembly may well pass in a newly Democratic Senate. And some of those concerned about victims' rights and the unborn worry that the new Senate will be less sympathetic to their issues.

Same-Sex Marriage

The marriage issue remains the most contentious of these, even though same-sex marriages have been recognized in New York State since 2003 when gay couples from New York started going to Ontario to marry legally. (All of Canada opened marriage to same-sex couples by act of parliament in 2005.)

While New York State itself does not grant licenses for same-sex marriages, it does recognize legal ones from elsewhere as it does all marriages that are not "abhorrent" to public policy. Former Comptroller Alan Hevesi ruled that the state pension system had to recognize same-sex spouses in 2004. Former Gov. Eliot Spitzer made sure that the state and any municipality participating in its benefit plans covered these spouses. And earlier this year Paterson issued a directive ordering all departments of state government to make sure that their policies recognized these spouses or tell him why they should be exempt from this requirement.

The tax department, however, has been stonewalling requests for its position. The department has said that legally married same-sex couples cannot file as married in New York because state tax law mandates anyone filing here

use their federal income-tax filing status, and federal law does indeed bar recognition of same-sex marriages under the Clinton-era Defense of Marriage Act.

Just this past week, upstate Monroe County abandoned its appeal of a decision in a case —Martinez v. Monroe County brought by the New York Civil Liberties Union — that ordered it to recognize a married lesbian couple as married for purposes of extending benefits to the spouse of one of the county's employees. In February, five judges – all appointed by Republicans – in an upstate appeals court unanimously upheld the trial court's decision in favor of the couple, who had married in Canada in 2004.

The state insurance superintendent just ordered all insurance companies in New York to treat legally married gay couples as married in accordance with Martinez.

So even though New York gay couples lost a case in the Court of Appeals seeking the right to marry here in 2006, as of Nov. 12, they only have to hop a Metro North train to the marriage bureau in Connecticut to obtain a license and tie the knot. They then will be as married as they would have been had they been allowed to marry here. All that opponents of same-sex marriage here are doing is driving the lucrative wedding business out of the state at a time when the economy is reeling.

Diaz said he wants a referendum on a constitutional amendment to ban same-sex marriage here, similar to Proposition 8, which California voters approved on Election Day. There is virtually no way, though, that that would happen given the difficulty of getting measures on the ballot, the rigors of the state constitutional amendment process and the resistance of the legislature to such a measure.

New York currently is one of only five states that do not ban same-sex marriage by law or constitutional amendment. For a decade some state legislators here have promoted a bill that would change that and make "marriage absolutely void if contracted by two persons of the same sex." Even the Republican Senate did not pass this state Defense of Marriage Act. Now its prospect appears even dimmer. The bill's chief sponsors were Queens Republican Sen. Serphin Maltese, who just lost re-election bid, and Assemblymember Anthony Seminerio, a Queens Democrat who was indicted for receiving hundreds of thousands of dollars in bribes. Despite that, Seminario, who was running unopposed, won re-election with the endorsements of the Democratic, Republican, Independence and Conservative parties—all of whom had decided to back him before his Sept. 10 arrest.

What did pass the State Assembly in 2007, though, was a bill introduced by Spitzer and shepherded through by Assemblymember Daniel O'Donnell, a Westside Democrat, to let same-six couple marry in New York. The Senate Republican majorty blocked the bill from coming to a vote in the Senate.

The balance of power in the Senate has shifted since then, as has the political climate. The vote in California -– where, by a 52 to 48 percent margin, people voted to eliminate the right of same-sex couples to marry -- has triggered protests in all 50 states and internationally, including two demonstrations attracting 10,000 each in New York City. It's a revival of street activism not seen here since the murder of Matthew Shepherd in 1997 or the days of ACT UP's AIDS demonstrations in the late 1980s and early 1990s.

With the passage of the state constitutional amendment in California, the 18,000 marriages of same-sex couples, including many from New York, who were wed there, are in a kind of legal limbo to be determined by the state's high court no sooner than March 2009. At that time, the court there will also decide whether the constitutional amendment itself was constitutionally valid. In the meantime, California Attorney General Jerry Brown has opined that marriages cannot themselves be undone by the vote on the amendment.

At a town hall meeting on the marriage issue at the LGBT Community Center in New York on Nov. 24, State Sen. Tom Duane, who is gay, predicted that Malcolm Smith would indeed be elected majority leader on January 9 and that the marriage equality bill would pass the Senate. But the national opponents of opening marriage have announced that, fresh from their victory in California, they are bringing their fight to New York and New Jersey.

The New York Times tried to stir the pot on Nov. 28 by asserting that Senate Democrats are so divided on whether to allow gay couples to marry in New York that many wanted to delay the issue until after the “2009 legislative session.” The reporter seemed not to understand that the legislative session is 2009-'10 and that Paterson has no interest whatsoever in letting this issue fester until after his run for election in 2010 since he has been as forthright as any politician in the nation in his support of access to marriage for gay couples. What’s more, far from being one who "avoids questions on the topic," as the Times wrote, Smith has reiterated his support for same-sex marriage at public forums since the election, while acknowledging the need to focus on the economy first.

The Times article also tried to paint the Empire State Pride Agenda as “quiet” on the issue, when in fact the group’s executive director was laying out strategy for passage of the Senate bill at a packed public forum on Nov. 24. (I reported on this for the Gay City News.)

In an interview after the Times story appeared, Alan Van Capelle, executive director of the Pride Agenda, said the article failed to mention that many gay married couples already are recognized by New York State as married and that all Assembly members who voted for the bill last year were re-elected in November. In a release, he said, “There are no shortcuts and there is no one waiting to give this bill to our community.” The group is focusing on both sides of the aisle and on building labor, religious and especially constituent support for the measure.

"It’s going to happen before David Paterson runs for election,” said Sen. Tom Duane, the chief sponsor of the marriage equality bill in his house. “It’s 50-50 whether it happens this year or next. I’d be disappointed if New Jersey [which already has full civil union rights for gay couples] does it before us.” But were that to occur it would put valid marriage licenses for gay couples in New York City as close as a PATH ride, making the Senate's resistance New York's marriage bureaus to these couples more and more absurd.

Reproductive Rights

The Catholic Conference, representing Roman Catholic bishops in Albany, and the Catholic League for Religious and Civil Rights plan to be one group working to prevent the state from opening marriage to gay couples.

The group's concerns go beyond that, however. William Donahue, executive director of the Catholic League, worries that the new Democratic majority in the Senate will also repeal all of the state's abortion restrictions and that "partial birth" or late-term abortion will have fewer restrictions. He, and the Catholic Conference, are opposing the "Reproductive Health and Privacy Act" to codify abortion rights under the Roe v. Wade decision of the Supreme Court. And he warns that "Catholic hospitals and doctors could be required to perform abortion," a charge vigorously contested by pro-choice advocates.

New York legalized abortion in 1970 when both houses of the legislature were in Republican hands, by the way, albeit Republicans of a more moderate and liberal stripe. The abortion rights advocates want to ensure that, even if a future Supreme Court restricts access to abortion, abortion would remain available in New York.

Other parts of the conference's agenda, which were not moving in the current legislature, now looks even less likely to pass with Democratic majorities in both houses. They include the Unborn Victims of Violence Act, which would "prohibit the assault or homicide of an unborn child during the commission of a crime against the mother," and a ban on "post-viability abortions." The conference also opposes legislation to allow physician-assisted suicide in New York.

One civil rights issue, though, the Catholic Conference may find common ground with most liberal groups: abolishing the death penalty once and for all in the state. The Court of Appeals struck down the death penalty law in New York in 2004, but the conference wants this state to follow New Jersey's lead in abolishing it in a statute.

Rights and Crimes

For decades, civil rights advocates and others have tried to change or eliminate the state's harsh Rockefeller drug laws. In a recent article on the new landscape in Washington and Albany, New York Civil Liberties Union executive director Donna Lieberman expressed hope for repeal or at least modification of the "cruel and inhumane Rockefeller Drug Laws, which have sent thousands of our neighbors to prison for non-violent drug offenses." Gov. Paterson is a historic opponent of the laws.

The civil liberties union also is organizing to block implementation of the federal Real ID Act. It wants New York to join other states that have formally rejected this national identification card system that, according to Lieberman, poses "an enormous threat to privacy" and "imposes a massive financial burden on the states."

Another threat, in the eyes of some civil libertarians, comes from the state's DNA databank. Bob Perry, legislative director of the NYCLU, wrote that his group's lawyers "are all but alone in making the case that the rapid expansion of the … databank poses grave risks to rights of privacy and due process." He expressed particular concern over a proposal from the state Commission on Forensic Science to "permit law enforcement to obtain a DNA sample from a family member of an individual whose DNA is a ‘partial match' with DNA evidence from a crime scene."

The Senate is also likely to take up a bill passed by the Assembly to add the category of "gender identity and expression" to the state human rights law, protecting transgenders, and to pass the Assembly's anti-bullying bill, instituting comprehensive anti-bullying programs in all schools in the state.

While the budget negotiations and wrangling over the economic crisis will dominate most of the debate in Albany for several months, the changed power balance in the Senate is sure to lead to discussions and implementation of civil rights legislation long supported by just one house, the Assembly. That could lead to big changes on a number of key issues.


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