Volume 74, Number 40 | February 9 - 15, 2005

Mayor goes both ways on same-sex wed ruling

By

PAUL SCHINDLER

Joined by four of the five same-sex couples they are representing, as well as children of several of the couples, Lambda Legal held a triumphant press conference Friday afternoon, Feb. 4, to announce that a Manhattan State Supreme Court judge had ruled that the New York Domestic Relations Law unconstitutionally barred gay and lesbian couples from marrying and that the city clerk in New York must begin issuing marriage licenses to such applicants.

The ruling from Justice Doris Ling-Cohan found that the D.R.L. violated both the due process liberty rights and the right to equal protection of the laws under the New York State Constitution.

Ling-Cohan’s order was stayed for 30 days to allow the city to decide whether to appeal the ruling, and the following day, Mayor Michael Bloomberg announced that the city would appeal. The 30-day stay is now extended for the life of the appeals process.

In explaining his decision at a dinner hosted by the Washington-based Human Rights Campaign, the largest gay rights lobby in the nation, on Saturday night at the Waldorf Astoria Hotel, Bloomberg warned that uncertainty as to whether appeals courts would uphold Friday’s ruling made it imperative to get a swift ruling from the Court of Appeals, the state’s highest court. On Monday, the city’s law department announced that it would ask that the decision be reviewed immediately by the Court of Appeals, rather than working its way through a lower Appellate Court.

“I don’t want to see a repeat of what happened in California, where people were misled into thinking that licenses issued while the case was still going through the courts, would be valid regardless of a later decision,” Bloomberg told the crowd, referring to the 4,000 same-sex marriages in San Francisco last year later overturned in court. “That caused a great deal of confusion and pain. People had their great joy snatched away from them very tragically. No one wants to see that happen here.”

The mayor also emphasized that he thought the issue is better resolved in the State Legislature, where he pledged his help in pushing the issue, rather than the courts. He did say, however, “I hope the Court of Appeals will embrace the goals laid out in yesterday’s decision,” a sentiment that puts him at odds with his own law department.

On Monday, Michael Cardozo, the city’s corporation counsel, issued a statement saying, “We believe that the State Supreme Court erred in its ruling on Friday that the New York State Marriage Law is unconstitutional because it prohibits the issuance of marriage licenses to same-sex couples.”

Neither the mayor’s office nor the law department responded to questions seeking clarification of this contradiction as of press time.

Mindful that an appeal was likely, Lambda and the plaintiffs were nonetheless exuberant about the ruling last Friday.

“It’s a great day for New York,” said Susan Sommer, Lambda’s supervising attorney and the lead counsel in the case. “The judge found that our state constitution requires that marriage be open on the same terms to same-sex couples, that it compels it.”

Speaking at the hastily arranged press conference in Lambda’s national headquarters on Wall St., Sommer said that Ling-Cohan’s ruling reflected “careful reasoning” about the requirements of the state constitution.

Under state law, the city clerk’s office in New York has jurisdiction over the issuance of marriage licenses here. Licensing elsewhere in the state is overseen by Albany. Accordingly, the defendant in this case was Victor Robles, the city clerk, not the state of New York. State Attorney General Eliot Spitzer was invited to file a motion in the case, but declined.

Given Ling-Cohan’s jurisdiction, her ruling has effect only within New York City. If her decision is eventually upheld by the Court of Appeals, it would apply to marriage license bureaus across New York.

The victory achieved by the five plaintiff couples was based on important principles in the state constitution, not on the conclusion that the D.R.L., which makes use of gender-neutral language in its major provision, already allows same-sex marriage. In fact, though a statutory claim was not part of Lambda’s petition, Ling-Cohan specifically endorsed the conclusions reached by the city’s corporation counsel and in an informal opinion issued last year by Spitzer that other references within the D.R.L. and the historical context of its enactment make clear that same-sex marriage is not currently allowed under state law.

Instead, the court relied on two key constitutional conclusions. The first is that the state’s due process right of liberty includes the right to privacy and that an important component of that right is the right to marry the person of one’s choice. Ling-Cohan found that neither tradition nor the need to make New York law conform to federal statute or the laws of other states were sufficiently compelling state interests to override the liberty rights of gay couples.

The court also ruled that denying same-sex couples the right to marry violates their right to the equal protection of the laws. Ling-Cohan acknowledged the city’s argument that both homosexuals and heterosexuals are equally barred from receiving same-sex marriage licenses, but noted that both blacks and whites were barred from interracial marriage under miscegenation laws eventually held unconstitutional — in the 1967 Loving v. Virginia Supreme Court ruling — on an equal-protection basis.

The remedy ordered by the court is the issuance of marriage licenses to same-sex couples in New York City.

The case poses a thorny political problem for Bloomberg, who had not previously stated a clear position on the gay marriage question.

Democrats, including gay State Senator Thomas Duane and lesbian City Councilmember Christine Quinn, joined prospective mayoral candidates, including Council Speaker Gifford Miller and former Bronx Borough President Fernando Ferrer in attacking Bloomberg’s decision to appeal the ruling, despite his newly voiced support for gay marriage. Duane went so far as to term the mayor a “coward,” but Miller, speaking to The Villger at the H.R.C. dinner, perhaps landed the best punch.

“For four years, the mayor has told us that his personal views on gay marriage are not important,” he said. “Now he is saying we should pay attention to his personal opinion, not his public actions.”

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