Hostile Panel Hears Marriage Appeal

Hostile Panel Hears Marriage Appeal

Lambda Legal faces tough questioning from five judges in New York City case

Justice Doris Ling-Cohan’s historic February ruling ordering New York City to open marriage to same-sex couples took a beating Tuesday before a five-judge panel of the state Appellate Division in Manhattan.

Few of the judges challenged city attorney Leonard Koerner who argued Republican Mayor Michael Bloomberg’ s case that this was a question that must be decided by the Legislature. Lambda Legal Defense’s senior counsel, Susan Sommer, was hammered by aggressive questioning about the validity of Ling-Cohan’s decision.

Thousands of gay and lesbian couples from all over the world would have been married in the city by now had Bloomberg declined to appeal, denying the community the opportunity to show the court the impact of that reality. Unless the mayor can be persuaded to drop his appeal, the case will almost surely end up in the Court of Appeals, the state’s highest, though neither side would estimate how long that will take or handicap the outcome there. Other lawsuits from around the state seeking equal marriage rights would likely be consolidated with the city case, Hernandez v. Robles, in any review by the Court of Appeals.

An appeal of Lambda’s trial court victory over St. Vincent’s Hospital that would have allowed a gay man in a civil union standing to sue for the wrongful death of his partner was heard by the Second Department in June 2004, but that court has yet to issue a ruling. One of the justices who heard that case has died.

The mayor’s appeal in the marriage case was heard in the cavernous ornate chamber of the First Department on East 25th Street at Madison Avenue where about 150 spectators gathered. The proceedings were difficult to hear, with neither justices nor counsels making any effort to speak into their microphones.

Koerner said there was a “rational basis” for the current law and that excluding same-sex couples from marrying “doesn’t make the statute unconstitutional.” He argued that one of the main reasons that marriage is limited to man-woman couples “is because of its procreative nature” and to provide a stable environment for children in the event of “unplanned pregnancies.” He also said there was “sizeable case law” supporting the city’s position, putting special emphasis on a 1971 federal case denying a Minnesota male couple the right to marry.

When challenged by Justice David Saxe, the only judge on the all-male panel who seemed interested in pursuing all sides of the question, Koerner said that the core issue “is whether you should substitute your judgment for the Legislature’s.” Koerner also said that while the equal protection clause in Massachusetts, where the high court granted gay couples the right to marry, is “broader” than the federal government’s, the New York equal protection clause is not.

Sommer was interrupted in her presentation almost immediately by Justice Milton Williams who wanted to know if this issue was “best left to the Legislature.” She said it was “the responsibility of the courts to uphold constitutional rights.”

Justice James Catterson hit Sommer with a rapid succession of questions on the precedents on which she was relying, taking offense at the citation of Loving v. Virginia, the 1967 Supreme Court decision that overruled state laws prohibiting miscegenation.

“The right to marry belongs to everyone,” Sommer said.

Justice George D. Marlow asked, “Don’t you have to show that the statute is invalid beyond a reasonable doubt?” Sommer responded that the New York marriage law “discriminates on the basis of sexual orientation” and against “31,000 children” being parented by gay and lesbian couples who need “the same stability as those raised by heterosexuals.”

Catterson proclaimed, “You don’t change the nature of a right by describing it differently.”

Koerner concluded, “A lot of good arguments have been made as to why you should change the law. That is up to the Legislature.”

Suzanne Goldberg, a professor of law at Rutgers who served as Lambda’s lead attorney on the successful 1996 challenge to Colorado’s discriminatory Amendment 2 in Romer v. Evans, observed the proceedings.

“Several of the justices seemed not to be open to the idea that marriage was a fundamental right,” she said.

Jon Davidson, Lambda’s legal director, said, “Sometimes the judges asking the most hostile questions are doing it to see where you’re going,” but added that no matter what happens, “this won’t be the end of it.”

In questions from the press, Koerner was asked why the mayor had not done anything to lobby the Legislature for a same-sex marriage bill since the city’s argument is that only Albany can change the law, and he has said he is willing to help in that effort.

“Both sides believe the Legislature won’t push it until the court resolves the issue,” Koerner said, a process that could take several years. There has been no action on the bill, even by the Assembly, which is overwhelmingly Democratic.

The city does recognize gay and lesbian couples who have legally married in Canada, but Bloomberg said in February that it would somehow cause “chaos” if same-sex couples got married here given the possibility that the high court might later invalidate their unions.

Joe Tarver, spokesman for the Empire State Pride Agenda, the LGBT lobby in New York State, said the group is engaged in an educational process to “build support over the next year” for the bill. He said they have asked for Bloomberg’s help and have not received it, but will “continue to ask for his support.”

Matt Coles, director of the Lesbian and Gay Rights Project of the American Civil Liberties Union, said, “This case is going to be decided by the Court of Appeals. Today’s hearing was a brief way station on the way to Albany.”

The First Department of the Appellate Division, appointed by Republican Governor George Pataki, has been unrelentingly hostile to cases involving gay and AIDS issues. In March—again at the behest of Bloomberg—that court struck down the Equal Benefits Law requiring city contractors to treat domestic partners of employees the same as spouses in providing benefits. Also in March, that court ruled against the Hispanic AIDS Forum in its suit against a landlord who refused to renew its lease in Queens because transgendered clients used common restrooms in the building. That court has also upheld Bloomberg’s moves to close gay bathhouses and porn stores, an issue that stirs anger among some within the gay community.

One gay civil rights attorney who has been following the case, but insisted on anonymity, described the appellate judges as “a pack of political hacks that nobody takes seriously.”

“We’re in this for the long haul,” Sommer said after the arguments.

Mary Jo Kennedy and Jo-Ann Shain, Brooklynites who are one of the seven couples represented in this case, said they hope to be able to be legally married in New York in time for their 25th anniversary in June 2007.