State Supreme Court justice finds for five plaintiff couples looking to wed
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, February 4 to announce that a Manhattan State Supreme Court judge had ruled that the New York Domestic Relations Law (DRL) 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 order is stayed for 30 days to allow the city to decide whether to appeal the ruling, and if an appeal is sought, the order will be further stayed pending resolution of that appeal.
The ruling from Justice Doris Ling-Cohan found that the DRL violated both the due process liberty rights and the right to equal protection of the laws under the New York State Constitution.
“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 press conference in Lambda’s national headquarters on Wall Street hastily assembled in the wake of the ruling Friday morning, 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 Gen. Eliot Spitzer was invited to file a motion in the case, but declined.
Given the jurisdiction that Ling-Cohan has, her order for now applies only within New York City. If her decision is challenged, but eventually upheld by the State Court of Appeals, it would apply to marriage license bureaus across the state.
Should the city decide not to appeal the ruling, same-sex marriage licenses could be issued within 30 days. Should the city not appeal, the state could mount an appeal on its own.
The four couples who attended the press conference expressed a mixture of surprise, delight and determination in responding to the favorable turn of events.
“When Mary Jo and I met 23 years ago, we never dreamed we would be plaintiffs in a marriage case,” said Jo-Ann Shain, `49, referring to her partner Mary Jo Kennedy, 51. “I never thought I would see this day.”
Shain, a medical publications editor, and Kennedy, who is the medical director of a family health center in Brooklyn, live in Flatbush and have a daughter, Aliya, who is 16. When asked why they were pursuing the lawsuit, Shain explained that it had a lot to do with Aliya.
“This is not just about filing joint taxes and getting each other’s social security,” she said. “This is about our daughter learning that families are built on love.”
Kennedy explained that her partner is Aliya’s biological mother and it took years after the girl’s birth until she was able to legally obtain a second-parent adoption on their daughter, a process that involved extensive home visits from social workers and considerable legal cost. If she had been Shain’s spouse, Aliya would have been Kennedy’s legal daughter from birth.
Kennedy gave considerable “credit to our daughter” in convincing the couple to go forward with their case.
“I feel very excited,” Aliya, a junior at Brooklyn Friends High School, said about her response to the ruling. “They deserve it. I love them very much. They taught me that a family is based on love. I have a legal relationship with both of them, but they can’t even have a relationship with each other. What does that tell a child?”
Asked how she felt about Pres. George W. Bush’s continuing push for a federal constitutional amendment banning same-sex marriage, including comments this week in which he linked that effort to the need to protect children, Aliya said, “I would invite the president to spend a day in my home. That would change his mind. I don’t think the president knows what he’s talking about.”
Curtis Woolbright, a 37-year-old aspiring voice-over artist and waiter, reacted to the ruling by saying, “We’re getting hitched. I never thought we’d win.”
Woolbright and his partner Daniel Reyes, 30, who runs an emergency food assistance program in Harlem, where the couple lives, have lived together for three years. Woolbright credited his mother “for being the inspiration for this.”
Daniel Hernandez, 46, who with his partner Nevin Cohen, 41, initiated the case with Lambda last March, also talked about the support of his family.
“The most exciting part has been my parents and family’s response,” he said. “The are so excited about the possibility of our getting married.
Hernandez does urban redevelopment work and Cohen is an environmental planner, and the couple, who have been together for six years, live in Hell’s Kitchen.
Last year, when they first became involved in the case, the couple told Gay City News that one of their motivations is their hope to someday have children. Cohen also learned the hard way about the limitations facing gay couples, when his partner of 11 years, Ken Skudrna, who died of AIDS in 1992, endured his illness.
“[Ken’s] personal doctors, nurses were terrific,” Cohen recalled last March. “But for doctors on call in emergencies, and interns who didn’t know us, there were always complications. We established paper work at [the hospital], but frankly it was always a matter of negotiation. Sometimes I felt I wasn’t listened to and kept as informed as a spouse would be. It was also a big hassle to handle insurance matters for Ken.”
The other two couples who emerged victorious Friday are Lauren Abrams, 39, a midwife, and Donna Freeman-Tweed, 43, a physician’s assistant, who live in Park Slope; and Michael Elsasser, 49, a woven textile specialist, and Douglas Robinson, 52, a financial industry specialist, who live in Harlem. Both of these two couples are raising two children each.
The victory achieved by the five plaintiff couples was based on important principles in the state Constitution, not on the conclusion that the DRL, 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 DRL 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 conform New York law 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 white 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.
As this story was posted, the city had not yet announced its plans regarding a potential appeal. The ruling poses a tricky political problem for Mayor Michael Bloomberg, a Republican in an overwhelmingly Democratic city who is up for re-election in November. The same day as the ruling, the Queens Republican Party announced it was abandoning Bloomberg in favor of Thomas Ognibene, a former city councilmember from that borough.
Should Bloomberg decide he is more interested in appealing to Democrats and progressives, he might choose not to appeal. That, in turn, would put Attorney Gen. Spitzer into a bind. He has consistently voiced his support for gay marriage, but has argued the state’s case against constitutional challenges filed upstate. Going to court to overturn a pro-marriage ruling likely to generate widespread celebration within the state’s gay community, however, might carry a political cost for the Democrat who has already announced his plans to seek the governorship in 2006.
If Spitzer, too, decided against an appeal, Republican Gov. George Pataki would likely have the statutory authority to appoint special counsel to stand in the attorney general’s place in arguing that the state’s DRL is constitutional.
Thus, Friday’s decision could prove to be a hot potato not only in this year’s mayoral race, but also in a match-up between Pataki and Spitzer next year.
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