VOLUME 4, ISSUE 5 | 3 - 9 Feb 2005

LEGAL

Lambda Wins First Round on NY Marriage
Judge finds state Constitutional right but stays decision for 30 days

By ARTHUR S. LEONARD

In a lengthy, scholarly opinion released on February 4, New York State Supreme Court Justice Doris Ling-Cohan ruled in favor of five same-sex couples represented by Lambda Legal who had sued the New York city clerk, Victor Robles, to compel him to issue them marriage licenses.

Ling-Cohan found that Robles' refusal to issue the licenses last year, on advice of the City Law Department, violated two provisions of the state Constitution, the due process clause and the equal protection clause.

“It was only less than 40 years ago that the United States Supreme Court held that anti-miscegenation statutes, adopted to prevent marriages between persons solely on the basis of racial classification, violate the Constitution because they infringed on the freedom to marry a person of one's choice,” Ling-Cohan wrote. “Similarly, this Court must so hold in the context of same-sex marriages.”

The court was not plowing new ground in this case, since two upstate town judges from New Paltz have also ruled that same-sex partners have a right to marry in New York, but those rulings came in the context of criminal prosecutions of persons who had performed marriage ceremonies and were incidental to rulings to dismiss criminal charges, recently reversed and reinstated by a higher state trial court. Just one day earlier, however, an upstate judge, Michael Kavanaugh, issued yet another opinion rejecting a challenge to the state marriage law.

But perhaps more significantly, over the past year and a half, the Massachusetts Supreme Judicial Court and two trial courts in the state of Washington have ruled that state constitutional principles of equality and liberty required opening up the institution of marriage to same-sex couples, and Ling-Cohan borrowed heavily from those rulings. Even more importantly, the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas, striking down the Texas sodomy law, embraced a broad view of protected liberty that provided a major support for the recent decisions on marriage in those other jurisdictions.

The lawsuit was peculiar in that the plaintiffs were suing the city clerk because his office refused to issue licenses, but the real defendant, of course, is the state, whose statute is the basis for denying the licenses. Although Attorney Gen. Eliot Spitzer was invited to intervene in the case to defend the marriage statute, he declined to do so, leaving the defense of the case to the City Law Department. Spitzer has been put into a contradictory situation, since he authorized an opinion letter last spring stating that the current marriage law does not allow for same-sex marriage, but that its failure to do so raises serious constitutional questions.

On the other hand, Spitzer's office is defending the marriage law in other lawsuits pending outside the city, in which his office has taken the position that the marriage law is constitutional. Thus, the decision on whether to appeal this ruling initially lies with the city, although it is difficult to believe that the State Law Department would not have any role to play in making decisions about an appeal, especially since the bottom line here is an injunction by Ling-Cohan ordering City Clerk Robles to issue marriage licenses to the plaintiffs, which will go into effect in 30 days unless an appeal is filed.

The case was simplified somewhat by the city's agreement with the factual contentions that Lambda advanced in support of the plaintiffs' claims. There was no dispute that same-sex couples form families, that many of those families involve raising children and that exclusion from marriage imposes significant disadvantages on the couples and their children, because of the many rights and responsibilities associated with marriage that cannot be completely simulated through private contracting. The court devoted a section of its opinion to recounting in detail these uncontested facts.

There was also no dispute, in the context of this litigation, that the existing marriage law does not provide for same-sex marriage and has been interpreted by both Spitzer and the City Law Department to exclude same-sex couples from marrying.

Conceding all this, however, city attorneys argued that there were two justifications for rejecting the plaintiffs' constitutional claims: first, that the City had a legitimate interest in maintaining the traditional form of marriage as a union of one man and one woman, and second, that the City had a legitimate interest in avoiding conflict with the laws of other jurisdictions, including the federal government, that would not recognize same-sex marriages performed in New York.

Ling-Cohan found those articulated state interests insufficient in light of the liberty and equality interests at stake, and contradictory to recent trends in New York law, which have all gone in the direction of providing more recognition and rights for same-sex families.

The opinion opens by drawing a strong analogy between the same-sex marriage dispute and the controversy two generations ago about interracial marriages, and uses as a striking example the fact that the parents of Curtis Woolbright, one of the plaintiffs in the case, had to move from Texas to California to get married, because Texas prohibited such marriages while California's Supreme Court was the first in the nation to strike down a legislative ban on interracial marriages. This introductory section strongly forecasts the court's conclusion, since the U.S. Supreme Court's case striking down a Virginia law against interracial marriage adopted the very same constitutional theories of liberty and equality.

In that case, known as Loving v. Virginia and decided in 1967, the Supreme Court ruled that using a racial classification to restrict the right to marry violates a fundamental liberty that every person has to choose their marital partner, and that excluding mixed-race couples from marriage violated the basic commitment to equal protection under the law embodied in the 14th Amendment.

The New York State Constitution also expresses a commitment to protecting individual liberty and equality, and, as Ling-Cohan found, state courts have found even greater protection under the state Constitution for individual rights than the federal courts have provided under the U.S. Constitution.

Interestingly, however, she analyzed the legal issues in terms of both federal and state judicial precedents, placing significant weight on the U.S. Supreme Court's 2003 opinion striking down the Texas sodomy law, Lawrence v. Texas. In Lawrence, Justice Anthony M. Kennedy summarized Supreme Court rulings protecting individual liberty that pre-dated the Court's 1986 decision in Bowers v. Hardwick, which upheld the Georgia sodomy law, and stated that under the principles of these cases, Bowers v. Hardwick had been incorrectly decided and should be overruled. Among the cases he included in that summary was Loving v. Virginia.

Although Kennedy had stated that the decision striking down the Texas sodomy law was not ruling on whether the state had to confer any particular legal status on same-sex relationships, nonetheless the opinion clearly suggested that the right to enter into such relationships enjoyed the same kind of constitutional protection as the right of choice in marital partners, and Justice Antonin Scalia, in his dissent, warned in obvious distress that the Lawrence decision was opening the way to a right of same-sex couples to marry. Ling-Cohan took note of that as well.

She found that the fundamental right to marry, mentioned in both New York and federal court opinions, has two parts. The first concerns which individuals have a right to marry, and the second concerns the choice of marital partner. Important decisions on the first issue by the U.S. Supreme Court found unconstitutional state laws that prohibited prisoners or divorced man who had failed to meet their child support obligations from marrying. On the second issue, the leading decision is Loving, where the Court deemed to be fundamental the right of choice. This idea was picked up in the 2003 Massachusetts marriage case, Good ridge, where the court stated, “The right to marry means little if it does not include the right to marry the person of one's choice.”

In 1982, the New York Court of Appeals had also addressed the marital choice issue, in the context of discussing the state constitutional right to privacy, and said “clearly falling within its scope are matters relating to the decision of whom one will marry.” So there is a clear basis in New York State law for asserting that the right of choice in marriage comes within the protection of the state constitution.

“It is clear,” wrote Ling-Cohan, “that moral disapproval of same-sex couples or of individual homosexuals is not a legitimate state purpose or a rational reason for depriving plaintiffs of their right to choose their spouse. In weighing the significance of the traditional institution of marriage, one must take into account the Supreme Court's rejection of the elements of distaste or moral disapproval.”

Ling-Cohan also rejected the defendants' attempt to link marriage and procreation as reason for denying same-sex couples the right to marry. Several of the plaintiff couples are raising children, some conceived through donor insemination, and census data show that a substantial minority of same-sex couples in New York, both female and male, are raising children.

“Excluding same-sex couples from marrying may, in fact, undermine the State's interest in providing optimal environments for child-rearing, in that children of those families are then not afforded the same legal, financial and health benefits that children of married couples receive,” the judge wrote.

To underline this point, Ling-Cohan included a separate section in her opinion devoted to showing how New York State law has evolved to extend significant recognition to same-sex partners, particularly regarding their relationship to children, especially noting court decision on gay adoption and second-parent adoption, as well as the historic Braschi decision from 1987 in which our highest state court found that two gay men living together could be considered a family for purposes of the rent control law.

The court was also dismissive of the city's argument that the state could deny same-sex couples the right to marry “on the basis of discrimination countenanced by other States and the Federal government,” which was how the judge re-characterized the city's argument that the state could deny the right to marry in order to maintain consistency with the federal Defense of Marriage Act, as the state tax department recently stated in saying that same-sex couples married elsewhere cannot file joint sate returns, or with the so-called mini-DOMA laws that have been enacted in most of the other states. Ling-Cohan asserted that “this simply cannot be a legitimate ground for denying a liberty interest as important as marriage,” pointing out that when the California Supreme Court struck down that state's law against interracial marriage in 1948, such marriages were not recognized in many other states.

Pointing out that numerous same-sex couples have formed families in New York even in the absence of the right to marry, Ling-Cohan, quoting a phrase used by Supreme Court Justice John Paul Stevens in an opinion he wrote in an abortion case, said that it would be “'irrational and perverse' to deny such New York resident couples and their children the protections of marriage that they would enjoy under the laws of New York, on the ground that they will not have those protections under the laws of other States, or under those of the United States.”

Rejecting the city's argument based on history, the judge wrote that “history demonstrates that marriage is not a stagnant institution,” and described the significant changes in the status of marriage that have taken place in New York law over the past two centuries, including radical changes in the status of women in marriage as well as the elimination of any racial limitations on who can marry and New York's adoption of new laws during the mid-20th century making it easier for couples to dissolve marriages that weren't working out.

“Permitting plaintiffs to marry would confer innumerable tangible and intangible benefits for them and their children while causing harm to no one,” wrote the judge. “Defendant has articulated no legitimate State purpose that is rationally served by a bar to same-sex marriage, let alone a compelling State interest in such a bar.”

The court also accepted the alternative argument of an equal protection violation, on grounds of sexual orientation discrimination, noting that the state courts have addressed sexual orientation discrimination, and that in 1985 the Appellate Division court in Manhattan had specifically ruled that sexual orientation “cannot be used as the basis for denying 'any person' the equal protection of the law.” Since the city had not articulated any compelling state justification for such discrimination, Ling-Cohan easily concluded that the exclusion of same-sex couples under the marriage law violates equal protection as well as due process.
In a lengthy concluding section, Ling-Cohan stated more affirmative reasons for her decision.

“As a society,” she wrote, “we recognize that the decision of whether and whom to marry is life-transforming. It is a unique expression of a private bond and profound love between a couple, and a life dream shared by many in our culture. It is also society's most significant public proclamation of commitment to another person for life. With marriage comes not only legal and financial benefits, but also the supportive community of family and friends who witness and celebrate a couple's devotion to one another, at the time of their wedding, and through the anniversaries that follow.”

Ling-Cohan also commented on the frequent argument that marriage has a religious basis and that religious objections to same-sex marriage should be considered in deciding a challenge to the marriage law.

“While, undeniably, religious institutions have a historical and spiritual interest in marriage and the recognition of those married under their tenets,” she wrote, “ultimately it is the government's choice as to which relationships to recognize as valid civil marriages and whether, and the degree to which, legal protections, burdens and privileges should be conferred on that civil institution.”

While recognizing that her decision could cause pain to some people because of their religious beliefs, she insisted that her decision “does not impact on those married under the tenets of their individual faith, and does not require that religious institutions change their tenets.”

It is customary when a trial court issues an order against the government to delay the effect of the decision to give the government time to prepare an appeal and to seek further delay from a higher court. Thus, it was not unusual that Ling-Cohan ordered that implementation of her order against the city clerk be delayed to give the city time to appeal. Significantly, she also ordered that the plaintiffs provide a copy of her decision to the attorney general's office, anticipating that the more important decision on appeal would be made there, since a state law is involved in the case.

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