Donna Freeman-Tweed (left) and her partner, Lauren
Abrams, are two of the plaintiffs in Hernandez v. Robles, a suit Lambda
Legal filed last year arguing that denying marriage to same-sex couples violates
New York’s Constitution. (Photo courtesy Lambda Legal)
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By JAMES WITHERS
Friday, December 16, 2005
A mid-level court ruled last week that New York state law doesn’t give
same-sex couples the right to marry, and further lashed out at a city judge
whose February ruling had attempted to extend marriage rights.
The New York State Appellate Division, a mid-level court, reversed the decision
of Manhattan Supreme Court Justice Doris Ling-Cohan, who said the Domestic Relations
Law that limits marriage to a male and a female is unconstitutional. In a four-to-one
ruling, the Appellate majority accused Ling-Cohan of inserting rights into state
law.
“We find it even more troubling that the court, upon determining the
statute to be unconstitutional, proceeded to rewrite it and purportedly create
a new constitutional right,” the court wrote.
The lone dissenter, Justice David Saxe, argued the state had no important
public interest in excluding same-sex marriage.
The case, Hernandez v. Robles, gained national attention in February when
Ling-Cohan issued a 62-page argument that ruled in favor of five same-sex couples
who were denied marriage licenses in March 2004 by the clerk of New York City.
The suit was brought by Lambda Legal Defense and Education Fund.
“Marriage is viewed by society as the utmost expression of a couple’s
commitment and love. Plaintiffs may now seek this ultimate expression through
a civil marriage,” the justice wrote.
The city appealed, asking the case to be “fast-tracked” to the
Court of Appeals. This past March the Court of Appeals, the state’s highest
court, ruled the case should be heard first at the Appellate Division and oral
arguments were presented in September.
In a statement, Mayor Michael Bloomberg repeated a promise he made in the
November election. “As I have said, this issue should be decided by the
State’s highest court and I assume today’s decision will be appealed,”
the mayor said. “If today’s decision is affirmed by the Court of
Appeals, I will urge the Legislature to change the State’s Domestic Relations
Law to permit gay marriage.”
Susan Sommer, Lambda’s senior counsel and lead attorney in the case,
promised there would be an appeal and was critical of the ruling.
“We filed a motion of appeal and that process is under way,” Sommer
said. “I think the majority was ignoring the vital constitutional role
the courts have to step in and protect the rights of the minority when the legislature
is allowing an unconstitutional law to remain in force. It is settled doctrine
in New York for the courts, when they see a state law is unconstitutional, to
remedy the problem by having that law constructed in such a way to uphold the
rights of the minority.”
Rutgers University law professor Suzanne Goldberg agreed.
“The court’s job is to protect minorities against discrimination,
but the court does not want to take the heat for making a decision that is unpopular
with some segments in society,” Goldberg said.
While Sommer is disappointed, taking the case to the Court of Appeals was
not unexpected.
“We are disappointed but not surprised,” Sommer said. “We
have always known this case would have to be seen by the highest court. This
is a bump in the road.”
In the tri-state area, same-sex unions have been in the news frequently during
the past year. Connecticut’s legislature approved a civil-union bill that
went into effect this October.
In June, a New Jersey State Appeals Court upheld the state ban on gay marriage;
however, because there was a dissenting opinion, the state’s Supreme Court
will hear an appeal. New Jersey does have a domestic partner law that was passed
in January 2004 and applies to same-sex couples and to opposite-sex couples
in which one partner is 62 or older.
In 2000 the Vermont Legislature passed its civil union bill making it the
first in the nation to offer legal recognition to gay and lesbian couples through
civil unions. Massachusetts is the only state that permits same-sex marriage.
In early September the California Legislature, without court pressure, passed
a same-sex marriage bill but Gov. Arnold Schwarzenegger vetoed it.
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