NY Journal News

Gay wedding ban defended

By LAURA INCALCATERRA
THE JOURNAL NEWS
(Original publication: May 26, 2004)

The state Legislature should decide whether same-sex couples could be issued marriage licenses, Attorney General Eliot Spitzer stated in response to a lawsuit brought by 10 Rockland couples.

The response, filed late Monday in state Supreme Court in New City, said only opposite-sex marriage was authorized in New York and the state had not violated the equal protection and due process clauses of the state Constitution by denying the same-sex marriage licenses.

The response restated an earlier interpretation by Spitzer in March.

That opinion led 10 same-sex couples, including Nyack Mayor John Shields and his partner, to sue the state Department of Health and Town Clerk Charlotte Madigan of Orangetown.

The couples filed the lawsuit March 12 after being turned down when they went to Orangetown Town Hall for marriage licenses.

The Attorney General's Office is representing the Department of Health, which files certificates for births, deaths and marriages in the state outside of New York City.

Madigan is being represented by the Orangetown Town Attorney's Office, which must file its response by Friday. Madigan has said she was doing her job, based on Spitzer's opinion, when she declined to issue the licenses.

The lawsuit asks the court to order Madigan to issue marriage licenses to the couples, who have dubbed themselves "The Nyack 10." It also asks the court to order the Health Department to recognize the licenses and to find that the town and state violated the couples' civil rights when the licenses were denied.

But the attorney general's response argues that when the state Legislature created the marriage licensing provisions in 1907 as part of the state's Domestic Relations Law, it only authorized opposite-sex marriage.

While acknowledging that the licensing provisions did not contain language specifically prohibiting same-sex marriage, the Attorney General's Office said the Legislature's intent was clear because of the many references made to "husband and wife" and "man and woman."

The Health Department was correct in not allowing same-sex marriages because state law only authorizes opposite-sex marriages, the response said.

The 38-page response includes mention of 65 previous court cases and dozens of state and federal laws that the Attorney General's Office references in support of its arguments.

Assistant Attorney General James McGowan and Assistant Solicitor General Julie Sheridan are the attorneys handling the case on behalf of the state.

Norman Siegel, the attorney representing the 10 couples, said yesterday that the state's response was an attempt to maintain the status quo, adding that marriage was a fundamental right.

"We believe this case challenges our state to live up to the commitment of equality for all, not for some," Siegel said.

The attorney general's response stated that denying marriage licenses to same-sex couples did not violate the state constitution's equal protection clause, which says, "No person shall because of race, color, creed or religion be subjected to any discrimination in his or her civil rights."

The response disagreed with the plaintiffs, who have argued that there was a need to consider gender when it came to reviewing the same-sex marriage issue.

"The Legislature limited the issuance of marriage licenses to opposite-sex couples," the state's response stated. "That limitation is not grounded on a gender-based classification."

The response also said the federal Defense of Marriage Act, enacted in 1996, eliminates the possibility that any of numerous rights enjoyed by opposite-sex couples would be available to same-sex couples even if they could obtain a New York marriage license.

The response concludes by suggesting that legislators decide the issue of same-sex marriages because while courts decide cases in an all-or-nothing way, debate in the Legislature could lead to compromise.

"There is therefore every reason for this court to exercise judicial restraint here and leave the resolution of this important issue to the state Legislature."

Shields said the response's statement that "petitioners and their families are entitled to dignity and respect" made no sense.

"How are you supposed to have dignity and respect without equal rights?" Shields said.

The couples must respond to the state and town, with all responses due before acting state Supreme Court Justice Alfred Weiner on June 4.