Attorney general indicates support for marriage challenges in the courts
The opinion, signed by state Solicitor General Caitlin Halligan, and presented by Spitzer, a Democrat, at a Lower Manhattan press conference Wednesday afternoon, also makes clear that same-sex marriages entered into legally in jurisdictions outside New York State should be recognized here.
Advocates for lesbian and gay rights immediately seized on that conclusion to claim an important victory for the community.
“Same-sex couples in New York can get married,” said David Buckel, a staff attorney at Lambda Legal Defense and Education Fund who heads up the group’s Marriage Project. “We are especially excited because we are working with more than 100 couples from across the state who have been married in Canada. And they are excited, too.”
According to Buckel, in every civil rights movement there are turning points of great significance.
“Today is an incredibly important moment in New York State,” he said. “As of today, let’s celebrate.”
Matt Coles, who heads up the Lesbian and Gay Rights Project at the American Civil Liberties Union (ACLU), sounded a similar upbeat tone in response to Spitzer’s announcement.
“The New York attorney general’s office is the first one anywhere that has said that same sex marriages entered into elsewhere are valid,” he told Gay City News.
Both Coles and Buckel acknowledged that the opinion flew in the face of the flurry of marriages solemnized in New Paltz, but they found other silver linings in Spitzer’s announcement.
At the press conference, Spitzer said that his office’s analysis of the DRL uncovered “important constitutional questions involving the equal protection of the laws,” though he hastened to add that his office “cannot and will not” resolve those questions, which he said must be resolved by the state’s courts.
Coles suggested that couples who have been married in New Paltz but encounter resistance to recognition of their union could file suit based on that type of analysis. He said Spitzer suggested that the statute could be found unconstitutional on grounds of either gender or sexual orientation discrimination.
Coles also noted that Spitzer “recommended” that city clerks not issue licenses to same-sex couples, but did not state definitively that such action was illegal.
Spitzer warned that officials, like West, who solemnize weddings without a license “subject themselves to substantial penalty.” However, under intense questioning from reporters on hand at the press conference, Spitzer, though saying such action was “violative of the law,” would not offer an opinion on whether West had broken the law. He would only say that Ulster County District Attorney Donald A. Williams was “acting within his jurisdiction” to pursue misdemeanor charges against the mayor.
The ACLU is representing a group of couples who were married in New Paltz.
E. Joshua Rosenkranz, an attorney with the Manhattan law firm of Heller, Ehrman who is representing West, also found some encouragement in the Spitzer announcement.
“I start where the attorney general did,” he said. “This needs to be resolved by the courts. Jason West doesn’t belong in criminal court any more Rosa Parks did. We have a DA who is so drawn to the limelight he has been blinded to any sense of proportion. He could have chosen any number of courses. But he chose the atom bomb of a response––criminal prosecution including jail time.”
West appeared in court Wednesday evening and pled not guilty. Rosenkranz indicated he will file a motion to dismiss. The pleadings on both sides will take seven weeks, he said.
Asked about the legal argument he will make in his motion to dismiss, Rosenkranz said, “We will argue that what the mayor did was legal under the law, and even if its not, as the attorney general suggests, it is unconstitutional. The attorney general said it is an issue for the courts, and he issued a narrow opinion. He did not opine on the statute’s constitutionality.”
Spitzer made clear in his comments to the press that West will face no opposition from him in his plans to continue solemnizing marriages. Arguing that the solemnizations do not meet the irreparable harm standard for an injunction, Spitzer rejected advise from Republican Governor George Pataki that he move to quash any further same-sex marriages.
The Empire State Pride Agenda (ESPA), the state’s gay and lesbian rights group, also applauded Spitzer’s announcement, calling the recognition of out of state same-sex marriages “a great victory.” The group finessed Spitzer’s finding that same-sex marriages are not authorized under state law, saying, “We appreciate his recognition that New York State law is unsettled on this issue and that the courts will be the ultimate decision makers on this.”
Not all advocates in the community, however, reacted as positively as ESPA, Lambda, and the ACLU.
“Spitzer’s advisory is a political opinion, not a legal opinion,” said Andrew Miller, one of the organizers of NYMarriageNOW.org, a group pressing Mayor Michael R. Bloomberg to order the issuance of marriage licenses for same-sex couples. “More than 100 attorneys at the Association of the Bar of the City of New York… have concluded that the state’s marriage statute is gender-neutral, and that marriage licenses can and should be issued now under state law.”
As Gay City News goes to press NYMarriageNOW.org is planning a major demonstration outside of City Hall and the Municipal Building across Centre Street for early Thursday morning, at which time same-sex couples will seek marriage licenses in the office of the City Clerk.
On Monday, Mayor Carolyn K. Peterson of upstate Ithaca announced a plan in which that city would recognize same-sex marriages entered into in other jurisdictions and would forward applications for same-sex marriage licenses to the state Department of Health, which has jurisdiction over their issuance. Health department officials previously said that they were only empowered to recognize licenses for opposite-sex couples.
Peterson, who is being advised by Lambda, has pledged to support the legal actions taken by applicants who are rejected by the Department of Health.
The Rockland County city of Nyack last week announced it would recognize same-sex marriages from other jurisdictions as well, and urged local employers to do the same.
Ross Levi, ESPA’s director of public policy and governmental affairs, argued that the actions by these municipalities merely confirm what is already fact––that New York State law recognizes almost all valid marriages from other jurisdictions.
Levi believes that such actions at the municipal level have important public education value and will pave the way for acceptance of same-sex marriage reform in the state.
“It would be great for New Yorkers to know that they live in a state where their neighbors already live in a legal same-sex marriage,” he said prior to Spitzer’s announcement. “When they get used to that , same-sex marriage becomes less objectionable.”
All of this talk of marriage has begun to stir some backlash. Conservative Party boss Michael Long has called for passage of a state Defense of Marriage Act. But, according to the New York Post’s Fred Dicker, Republican state Senate Majority Joseph Bruno, long considered a nemesis of the gay community, said such a measure could only be considered after consulting with “all of the interested parties”––the Conservative Party, but also the Pride Agenda.
Even as the marriage debate surged in New York, action shifted back to the West Coast on Wednesday, when Multnomah County, Oregon began issuing marriage licenses to same-sex couples in the Portland area.
