February 11, 2005

Let them marry

Judge rules New Yorks constitution guarantees the
right to wed

by Anthony Glassman
with wire reports

New York City--Same-sex couples are guaranteed the right to marry under the state constitution, a judge ruled on February 4.

Justice Doris Ling-Cohan of the New York Supreme Court compared the proscription against same-sex marriage to earlier bans on interracial marriage in her 62page ruling.

Ling-Cohan�s court is a trial-level one serving Manhattan. The case will ultimately be decided by the Court of Appeals, the state�s highest court.

The judge, who is the first Asian-American woman on the New York Supreme Court, noted that one of the plaintiffs in the case is the product of an interracial marriage, and his parents had to go to California to get married. At the time, California was the only state whose high court had ruled against anti-miscegenation laws.

Attorneys for the city appealed directly to the Court of Appeals on February 8, bypassing an intermediate court.

New York�s laws do not specifically define marriage as an opposite-sex institution, but courts and officials have interpreted language in related legislation that refers to �husband� and �wife� to mean that the institution is only open to a man and a woman.

Mayor Michael Bloomberg says he supports same-sex marriage, but that the city must appeal.

�If we did not appeal this, I think we would have chaos in this city,� Bloomberg said. �I�m glad the judge ruled this way, because it gets us the ability to get this to the appellate court.�

Bloomberg�s stance has put him on a very narrow fence, being shot at from both sides. His fellow Republicans accuse him of being a crypto-Democrat, while LGBT activists and politicians have labeled him a coward.

However, his position is mirrored by New York Attorney General Eliot Spitzer, who advised city clerks not to grant marriage licenses to same-sex couples, but refused to defend the law in the case before Ling-Cohan.

A judge in the Supreme Court in Albany decided the opposite way in December, ruling that the 13 couples in his case were not denied their constitutional rights by being denied marriage.

The couples in that case were married last year by Jason West, the mayor of New Paltz. He now faces misdemeanor charges, which were reinstated on February 2.

Other trial courts in New York state have also upheld the �traditional� definition of marriage.

The New York City law department defended the current interpretation of law in Ling-Cohan�s court. They are now appealing her decision.

�Since courts of this state disagree whether or not the state marriage law is unconstitutional, it is essential that this issue of statewide importance be decided definitively by the state�s highest court, so that the law can be uniformly applied throughout our state,� said Michael A. Cardozo, the city�s counsel.

Ling-Cohan�s decision, hailed by National Gay and Lesbian Task Force director Matt Forman as �brilliant and moving,� examined a wide variety of earlier cases. At one point, she notes that the term �spouse�� �has been construed to include the surviving member of an unmarried, same-sex, Vermont civil union.�

She quoted the U.S. Supreme Court ruling, in a 1978 case, that marriage is a �right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to a degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.�

She also notes extensively that three of the five couples in the case have children, either through adoption or alternative insemination, and that those couples had to go to great lengths and expense to ensure that both partners were legally considered parents to their children.

She then notes that the city�s argument that changing the definition of marriage should be left to the legislature had also been used in cases against laws barring interracial couples from marriage.

�Accordingly, the words �husband,� �wife,� �groom� and �bride,� as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to mean �spouse,� and all personal pronouns, as they appear in relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to men or women,� she concludes.

Implementation was stayed for 30 days, until March 7, and Ling-Cohan ordered a copy of her decision sent to Spitzer�s office.

The Court of Appeals must hear cases dealing directly with constitutional questions, but it has only heard four cases in the last fifteen years that skipped the intermediate levels of the judicial system. However, observers believe that with the urging of Bloomberg and Spitzer, the court would indeed take the case directly.

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