Same-Sex Marriage Suit Filed in NY

Lambda Legal represents Upper West Side gay couple; advocates expect long fight

Lambda Legal, a leader in the nationwide struggle for gay and lesbian equal rights, announced on March 5 that it has filed a lawsuit in the New York State Supreme Court in Manhattan seeking equal marriage rights for same-sex couples in the Empire State.

The suit, filed on behalf of Daniel Hernandez and Nevin Cohen, a Manhattan gay couple who have been in a relationship for five years, argues that equal same-sex marriage rights are guaranteed by the state Constitution’s equal protection and privacy provisions. According to Lambda, the right to privacy in New York includes an explicitly recognized right to marry.

“We seek, and intend to win, full marriage rights for lesbian and gay couples across New York––nothing more and nothing less,” said Kevin Cathcart, Lambda’s executive director, at a crowded press conference last Friday. “The protections only marriage provides are uniquely important to gay New Yorkers. These couples have waited long enough. Today’s lawsuit is the beginning of the end of marriage discrimination in New York.”

Susan Sommer, Lambda’s lead attorney on the case, noted, “ 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. This lawsuit is the next natural development in a line of cases that have upheld gay couples’ fundamental right to be treated with respect by their government.”

As early as 1989, in the Braschi v. Stahl Associates case, the state’s highest court ruled that a same-sex partner qualifies as “family” under New York City’s rent regulation statutes. Last year, a Nassau County Supreme Court ruling recognized that a gay man who entered into a Vermont civil union with his late partner has standing as a spouse under New York law to sue St. Vincent’s hospital, where the partner died, for alleged medical negligence that led to the death.

Hernandez, 46, and Cohen, 42, met five years ago when Hernandez was on a mid-career fellowship at Harvard University, and visiting friends in New York City. When Hernandez left the East Coast to return to San Francisco and resume his career in affordable housing development, he said he and Cohen, an environmental planner, realized they wanted to be together. Hernandez soon quit his job and moved to New York, where the couple now lives in Hell’s Kitchen.

“We always knew we were going to be together, to be a couple,” Cohen said in a telephone interview with Gay City News. “We exchanged rings. We felt like a couple. We have always been treated as a loving couple by our friends and our families.”

Cohen grew up in Brooklyn and has spent his entire life, except for his college and graduate school years, in New York City. Coincidentally, while pursuing his graduate studies at Berkeley, Cohen became acquainted with friends of Hernandez’s.

A native of San Antonio, Texas, Hernandez said he grew up in “a traditional Chicano household.” His parents, who married as teens, have been together for more than 50 years. Hernandez said that he and Cohen have talked about adopting children and that “we want them to be able to tell their friends that they live in a married household.”

“We think we’d be great parents,” Hernandez said at the press conference.

Cohen knows from sad experience the importance of the rights, benefits, and respect that are accorded without a second thought to married couples. Eleven years ago, his partner of ten years, Ken Skudrna, died of AIDS. Cohen recalled that he encountered persistent difficulties as he tried to carry out his role as his lover’s primary caregiver.

“His personal doctors, nurses were terrific,” he said. “But for doctors on call in emergencies, and interns who didn’t know us, there were always complications. We established paper work at New York 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.”

Asked how much they were influenced by the recent high profile debate about marriage and by Pres. George W. Bush’s recent announcement that he will push for a federal constitutional amendment barring gay marriage, Cohen told the press conference, “We were disappointed.”

Hernandez elaborated.

“We were inspired by what was going on around the country,” he said, of the more positive recent developments. “But we’ve always wanted to be married.”

The couple said they only began to talk with Lambda about filing the suit last week, but were willing to sign on at once.

“We had to make a quick decision about being plaintiffs in this case, but we had always thought of ourselves as a couple,” Cohen said.

The Lambda suit comes on the heels of an advisory opinion issued last week by New York State Attorney General Eliot Spitzer that argued that same-sex marriage is not allowed under current law, even though out-of-state gay marriages should be recognized by New York. Spitzer’s opinion raised the same equal protection concerns about the current law that form the basis of the Lambda case.

According to Sommer, the lawsuit will not challenge Spitzer’s interpretation of the current law, instead focusing on its underlying constitutionality.

Sommer would not speculate on whether Spitzer’s office, as the state’s lawyer, would defend the current law, or join in a friend of the court brief supporting the challenge.

Since 2002, Lambda has been engaged in a lawsuit seeking same-sex marriage rights in New Jersey and is part of the legal team seeking such rights in California in the case spawned by San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses to gay and lesbian couples. Lambda also announced this week a similar lawsuit in Washington state.

As Gay City News goes to press, John Shields, the out gay mayor of Nyack in Rockland County, is preparing to file a separate suit seeking same-sex marriage rights. Shields is represented by Norman Siegel, the former head of the New York Civil Liberties Union.

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