Elsewhere in the state local officials pledge to recognize same-sex marriages and lend moral support
After bold initiatives in Massachusetts, California, New Mexico, and Oregon to affirm the right to civil marriage for same-sex couples, momentum is building on the issue here in New York State.
Last Friday, Mayor John Shields of the Rockland County city of Nyack filed a lawsuit against the state and Charlotte Madigan of Orangetown, the town clerk with oversight of Nyack, for refusing to issue marriage licenses to him and his male partner, as well as nine other same-sex couples.
A section in the 50-page brief states that the town clerk has misinterpreted the state law, known as the Domestic Relations Law, that defines marriage. Shields and the plaintiffs are also alleging that refusing a marriage license to same-sex couples violates the state Constitution’s “guarantee of equal protection and the fundamental right to marry.”
“The case challenges our state, the Empire State, to live up to our Constitution and give equal and fair treatment to all its citizens,” said Norman Siegel, the former head of the New York Civil Liberties Union and one of four attorneys arguing the same-sex marriage case. “I was involved in the Southern civil rights struggles and I think there are some similarities.”
“For us, it’s not a question of whether gays and lesbians have a right to marry, it’s when is it going to get recognized in the state of New York, either through the courts or through the State Legislature,” asserted Eric Wrubel, of the firm Dobrish & Wrubel, which is also working on the suit.
Wrubel said that since gay and lesbian couples are legally permitted to have domestic partnerships and adopt children in the state, they should also be afforded equal opportunity to maintain their families’ cohesion. Under the terms of domestic partnership alone, families of gay and lesbian couples risk separation on a host of legal grounds. The right to adopt without the right to civil marriage is like “putting the cart before the horse,” Wrubel said.
The Nyack action follows by one week a lawsuit filed by Lambda Legal, a leading gay and lesbian legal rights group, in Manhattan Supreme Court on behalf of Daniel Hernandez and Nevin Cohen, a Hells Kitchen gay couple who were denied a marriage license in the mass action held at the city’s clerk’s office in the Municipal Building on March 4.
“New York’s courts have a track record of making sure lesbian and gay people are included in the state Constitution’s requirement that everyone be treated equally under the law,” said Susan Sommer, the supervising attorney at Lambda Legal and lead attorney on the case.
Commenting on the New York City case, Wrubel said, “We’re all going to be arriving at the same place, which is the Court of Appeals.”
Unlike the case in Nyack, however, the Lambda lawsuit is not maintaining that same-sex marriage rights exist under current statute. Lambda is resting its case instead on the same constitutional issues that form a portion of the Nyack case.
Shields had originally planned to solemnize same-sex unions in the same way that Jason West, the mayor of New Paltz in Ultster County, began doing in late February. However, he later decided to forgo what has come to be viewed in many quarters as civil disobedience in favor of a legal challenge.
West is now facing criminal misdemeanor charges brought by the Ulster County district attorney for solemnizing marriages without licenses, as are at least two Unitarian ministers who stepped in for West when he was enjoined from performing further marriages.
“We are plaintiffs, not defendants,” said Shields, adding that he fully supports the steps taken by West and by San Francisco Mayor Gavin Newsom, whose example, he said, inspired him seek a license from his own town’s issuing official.
“As my partner said, [West] is not even part of the club and here he is taking this stand,” Shields said, referring to the fact that West is not gay.
Shields and his co-defendants are prepared for the long haul in their suit.
“We plan to keep appealing until it gets all the way up to the highest court of appeals in the state,” Shields said.
Siegel predicted that such a final decision is down the road apiece.
“I imagine that it will take a year or two before we’ll get a ruling,” he said.
In the meantime, Shields said he would continue to take a leadership role on achieving marriage equality, both at the local and national levels. On the day that Shields was interviewed, he had been contacting mayors throughout the country to confirm or solicit their support, “particularly against a possible federal amendment.”
In New York, Buffalo and Ithaca have already weighed in, as has the town of Brighton. Earlier this month, Anthony Masiello, Buffalo’s mayor, Carolyn Peterson, Ithaca’s mayor, and Brighton’s town supervisor, Sandra Frankel, announced that their jurisdictions would recognize the marriages of same-sex couples legalized elsewhere in the U.S. or abroad in Canada or Belgium, for example, where marriage for gays and lesbians is available.
“I will uphold the law, which includes the recognition of civil unions and same-sex marriages performed outside of New York State,” said Masiello. “I have always been an advocate for the advancement of human and civil rights for all people.”
Ithaca took an additional step, proclaiming that it would accept applications for marriage licenses from same-sex couples and forward them to the state Department of Health that regulates marriage. Peterson pledged to give legal support to couples turned down by the state.
New York State Attorney General Eliot Spitzer, in announcing an advisory opinion on March 10, provided back up for the local officials on the marriage recognition issue. Even while stating his view that same-sex marriage is not legal under existing New York statute, the attorney general said the state is required to recognize valid same-sex marriages from other jurisdictions. Spitzer also acknowledged concerns about the equal protection and privacy constitutional questions raised in the Lambda and Nyack suits.
“Empire State Pride Agenda, [the Human Rights Campaign], and Lambda have been very supportive,” Shields said, “and we have just started making contact with the [National Gay and Lesbian Task Force].
Ross Levi, the Pride Agenda’s director of public policy and governmental affairs, who works out of the group’s Albany office, has worked closely with local officials around the state who have come forward in support of same-sex marriage and its recognition.
Joe Tarver, a Pride Agenda spokesperson, noted that in recent weeks, “town hall meetings [have been] serving as an organizing platform for all the various LGBT communities across the state on marriage. In some cases, we’ve taken the lead in putting them together with local groups. In others, local groups are taking the lead and we’ve been invited to be part of the meeting.”
At a forum last Wednesday at Manhattan’s LGBT Community Center, sponsored by the Gay and Lesbian Independent Democrats and other political groups, Tarver noted that events in Rochester on two recent successive weekends drew hundreds of participants, many of them new to activism in the area.
The Pride Agenda has meetings scheduled to take place through April in the upstate communities of Buffalo, Albany, Nanuet, Binghampton, Syracuse, and Potsdam, and in Nyack, Westchester County, and Long Island in the immediate metropolitan area.
