New York advocates of same-sex marriage face two opportunities for success—upholding their recent win on appeal in the courts or going to the Legislature to get a law that specifically allows same-sex marriage.
Now that they have a lower court victory in hand, the judicial strategy will almost certainly be played out first. If the existing Domestic Relations Law, the state’s marriage statute, is held to be constitutional by the state’s high court, thereby overturning last week’s win, then the Legislature will be the advocates’ only recourse, and that process would likely take years, during which the pressure for marriage equality would undoubtedly grow.
If last week’s victory is upheld, on the other hand, the Legislature could still step in, but only by beginning the process of changing the state Constitution, a cumbersome process. Given the liberal strength in the Democratic-controlled Assembly and the fact that the Legislature has not even given serious consideration to a mini-Defense of Marriage Act, overturning a favorable court ruling is probably a long shot.
All of this may seem obvious to many Gay City News readers, but it apparently wasn’t clear to Mayor Michael Bloomberg who voiced the “hope” that the Court of Appeals would “embrace the goals” of last week’s decision but also said he thought the matter is best resolved in the Legislature.
New Yorkers generally seemed surprisingly calm about the historic decision issued by a state Supreme Court justice last week. Once again, the vital role played by visibility in the lives of lesbian and gay New Yorkers was evident—it would be hard for anyone here in the city to argue that we don’t fall in love just as often as straight people. The evidence is aplenty.
Sharply hostile reactions to the judge’s ruling were infrequent and took time to develop. Part of the reason was the care with which Lambda Legal briefed its case. The couples were recognizable New Yorkers with a story to tell, and the media for once let these couples speak their mind.
The judge’s decision demolished the notion of “traditional” marriage. She reminded us, for example, that in the 19th century, a husband was the legal head of the family and that the whole family constituted one legal person subject to the his authority. Well into the 20th century, a husband could not be prosecuted for raping his wife. The nature of marriage changed as the divorce laws changed.
And then in 1967, in a ruling that effected customs across the nation, the Supreme Court overturned miscegenation statutes prohibiting blacks and whites from marrying.
Marriage has changed, in New York and in America, but it has kept its central importance in society. Marriage, Judge Doris Ling-Cohan said, is “life-transforming.” It is a “private bond” and a “life dream” and the “most significant public proclamation of commitment to another person for life.” It is more than the sum of its legal and financial benefits because it draws in “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.”
This humanistic perspective is essential for an eventual victory in New York’s highest court, the Court of Appeals.
The outcome of that court’s consideration of the question hinges on the notion of scrutiny. Is the Domestic Relations Law subject to the presumption that the Legislature’s decisions be honored, that is, that the law has a “rational basis?” Or is there a higher level of scrutiny involved because marriage involves a fundamental right for the individual where the constitutional interest in due process and equal protection trumps the Legislature’s prerogative?
So far, three judges have upheld the state’s marriage law and they have done so by imposing the rational basis test. In New York City, Ling-Cohan said that marriage is far too important to a person’s private life to justify such a low level of scrutiny. Once you reach this higher threshold of scrutiny, New York’s law is unlikely to pass constitutional muster.
Unfortunately, for same-sex couples, there are other court decisions on this issue and they conclude that a rational basis test is all that is required. So if prior decisions are decisive, the LGBT community is in trouble.
It is now clear that the Court of Appeals will decide this issue, either immediately or after an intermediate level appeal. The first case that aimed for the highest court is out of Albany County. Thirteen couples denied marriage licenses, including Manhattan Assemblyman Daniel O’Donnell and his partner, are represented by the prestigious law firm of Paul, Weiss, and the American Civil Liberties Union Foundation. They lost the case in trial court with the attorney general’s office representing the state. Both sides have advised the Court of Appeals that it is has jurisdiction because the case involves a purely constitutional issue. The early word is that the court will hear arguments in the fall term.
The chief justice, Judith S. Kaye, and the other two justices appointed by Democratic Gov. Mario Cuomo, George Bundy Smith and Carmen Beauchamp Ciparick, are likely to give a sympathetic hearing to overturning the existing law, but the four appointees of Gov. George Pataki are less certain in their leanings. Robert S. Smith is a conservative, but one with a libertarian streak, and Albert M. Rosenblatt is alternately considered a liberal and a jurist dedicated to scholarly reasoning.
Predicting a judge’s decision on the basis of politics is uncertain at best. One reason for that uncertainty is by what measure is the political interest determined? When Massachusetts’ highest court legalized same-sex marriages, it benefited the Republican Party. Pres. George Bush’s advisors had wanted to make gay marriage an issue, but they had a problem—almost no Democrats supported it. The Democrats generally favored civil unions at best. Then the judges in that state—six of the seven were appointed by Republican governors—made gay marriage a live issue, as they say in court. And one beneficiary of this decision was Bush and his effort to mount a high profile defense of “traditional values.”
Will the Court of Appeals uphold the existing law and force the New York legislature to deal with the issue or will it legalize same-sex marriages and thereby get the politicians off the hook and sharpen the differences between the blue and red states? A victory for marriage equality here would certainly heighten alarm elsewhere in the nation that unelected judges were imposing a new lifestyle on Americans. So far this argument has favored Republicans and hurt Democrats.
Is it possible that same sex-marriages will be decided on the merits? Stranger things have happened in the real world.