Mayor’s Appeal Fraught With Contradiction

City marriage ruling stayed as Bloomberg turns to state’s high court

In explaining his decision to appeal State Supreme Court Justice Doris Ling-Cohan’s ruling that the city must issue marriage licenses to same-sex couples, Mayor Michael Bloomberg said he “hoped” the state’s highest court will embrace her ruling, a view at odds with the stated position of the city’s Law Department.

At a dinner Saturday evening hosted by the Washington-based Human Rights Campaign (HRC), the nation’s largest gay rights lobby, at the Waldorf Astoria Hotel, Bloomberg warned that it was imperative to get a swift ruling from the Court of Appeals. Indeed, on Monday, the city’s Law Department announced that it would ask that the decision be reviewed immediately by the Court of Appeals, rather than working its way through a lower appellate court.

“I don’t want to see a repeat of what happened in California, where people were misled into thinking that licenses issued while the case was still going through the courts, would be valid regardless of a later decision,” Bloomberg told the crowd, referring to the 4,000 same-sex marriages in San Francisco last year later nullified by that state’s high court. “That caused a great deal of confusion and pain. People had their great joy snatched away from them very tragically. No one wants to see that happen here.”

The mayor emphasized that he thought such a thorny issue is better resolved in the Legislature, where he pledged his help in pushing the issue, rather than the courts.

However, after terming Ling-Cohan’s decision as “certainly something to celebrate,” Bloomberg added, “I hope the Court of Appeals will embrace the goals laid out in yesterday’s decision.”

That certainly was not the sentiment of his own Law Department just two days later. In a written statement released on Monday, Michael Cardozo, the city’s corporation counsel, said, “We believe that the State Supreme Court erred in its ruling on Friday that the New York State Marriage Law is unconstitutional because it prohibits the issuance of marriage licenses to same-sex couples.”

Neither the mayor’s office nor the Law Department responded to various requests seeking clarification of the administration’s stance.

Last Friday, Lambda Legal, the gay civil rights legal advocacy group, was joined by four of the five same-sex plaintiff couples, as well as the children of several of the couples, in a triumphant press conference to announce the marriage win. Attorneys from Kramer Levin, a law firm which provided pro bono assistance to Lambda on the case, were also on hand.

Ling-Cohan’s ruling found that the Domestic Relations Law violated both the due process liberty rights and the right to equal protection of the laws under the New York State Constitution. Her order was stayed for 30 days to allow the city to decide whether to appeal, a stay now extended for the life of the appeals process.

“It’s a great day for New York,” said Susan Sommer, Lambda’s supervising attorney and the case’s lead counsel, said at the press conference. “The judge found that our state Constitution requires that marriage be open on the same terms to same-sex couples, that it compels it.” 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 Ling-Cohan’s jurisdiction, her ruling has effect only within New York City. If her decision is eventually upheld by the Court of Appeals, it would apply to marriage license bureaus across New York.

The four couples who attended the press conference expressed a mixture of surprise, delight and determination with the 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 of 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 they hoped to one day have children. Cohen also learned the hard way about the legal limitations facing unmarried gay couples, when his partner of 11 years, Ken Skudrna, succumbed to aids-related complactions in 1992.

“[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 in Friday’s decision 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 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.

The remedy ordered by the court is the issuance of marriage licenses to same-sex couples in New York City.

The case poses a complicated political problem for Bloomberg, who had not previously stated a clear position on the gay marriage question.

Democrats, including gay state Sen. Thomas Duane and lesbian City Councilwoman Christine Quinn, joined prospective mayoral candidates, including Speaker Gifford Miller and former Bronx Borough Pres. Fernando Ferrer in attacking Bloomberg’s decision to appeal the ruling despite his newly voiced support for gay marriage. Duane went so far as to term the mayor a “coward,” but Miller, speaking to Gay City News at the HRC dinner, landed another punch.

“For four years, the mayor has told us that his personal views on gay marriage are not important,” he said. “Now he is saying we should pay attention to his personal opinion, not his public actions.”

Even as he took punches from Democrats, Bloomberg was faulted by fellow Republicans. Former City Councilman Tom Ognibene, who last Friday won the endorsement of the Republican Party in his native Queens in his primary challenge to the mayor, called Bloomberg’s sudden conversion on gay marriage “spineless.”

The appeal also spotlights the political bind of Attorney Gen. Spitzer. A longtime supporter of gay rights, he has nevertheless defended the marriage law in several cases filed upstate and joined the city in pressing the Court of Appeals for quick review of any appeals. At least one of the cases he is defending the state on could be consolidated with the New York City case when heard by the Court of Appeals and Spitzer’s advocacy of a law that he professes to disagree with could begin to erode the strong support he enjoys among gay voters.

As of Wednesday, the Court of Appeals had not indicated whether it will honor the requests by the city and the attorney general for prompt review.