http://www.nyjournalnews.com/newsroom/102204/a0122samesex.html

'Nyack 10' loses marriage-license suit

By LAURA INCALCATERRA AND SULAIMAN BEG
THE JOURNAL NEWS
(Original publication: October 22, 2004)

Orangetown Town Clerk Charlotte Madigan acted correctly when she declined to issue marriage licenses to 10 same-sex couples, a state Supreme Court justice has ruled.

The couples, who became known as "The Nyack 10," went to Orangetown Town Hall in March to get the licenses. Madigan turned them down after being told by state Attorney General Eliot Spitzer and the state Health Department that she was not legally authorized to issue licenses to same-sex couples.

The couples, including Nyack Mayor John Shields and his partner, then sued to force Madigan to issue the licenses and to force the Health Department to recognize the licenses. The Health Department files certificates for births, deaths and marriages in the state outside New York City. Spitzer's office represented the Health Department.

The couples also wanted the court to find that the town and state had violated the couples' civil rights when the licenses were denied.

But in his ruling, which was made available yesterday, acting state Supreme Court Justice Alfred Weiner rejected all arguments made by the couples. He determined that marriage licenses were to be issued only to heterosexual couples under the state Domestic Relations Law, which governs marriage in New York.

Shields said the ruling disappointed him.

"It's really unfortunate that Judge Weiner, who's running for office, has to make a political decision rather than a decision for the civil rights of all people," Shields said.

Weiner, whose courtroom is in New City, is running for a 9th Judicial District state Supreme Court justice seat. He is one of 13 candidates vying for six seats in the Nov. 2 general election. The district includes Rockland, Westchester, Orange, Putnam and Dutchess counties.

The civil-rights attorney representing the couples, Norman Siegel, said he would file an appeal.

"The struggle to obtain equal justice under the law for same-sex couples who want to get married in New York state will continue," Siegel said. "We will appeal the judge's decision. We are extremely disappointed and think the decision is incorrect."

Madigan said she had been confident that Weiner's ruling, which she called "consistent with my interpretation of the law," would back her up.

Weiner found the law did not specify that only people of the opposite sex could marry, as the couples had argued. But he also ruled the state Legislature's intent had to be considered.

The justice said the Legislature, which enacted the Domestic Relations Law, used the term "husband and wife" in the language of the law, and clerks were required to secure information from the "bride and groom" before issuing licenses. This clearly implied that the Legislature's intention was to allow marriage between a man and a woman only, Weiner ruled.

Madigan therefore had neither the legal authorization nor the discretion to issue marriage licenses to same-sex couples, and the Health Department did not have to recognize the licenses, Weiner ruled.

The judge also dismissed the couples' claim that their civil rights had been violated because they had been discriminated against based on their sexual orientation.

Weiner instead ruled the Health Department's argument was correct.

A person cannot be discriminated against because of his or her gender under the state constitution.

The Health Department asserted that discrimination based on gender was not an issue in the case because men and women were allowed to marry in New York. The stipulation was that they had to marry someone of the opposite sex. Therefore, the denial of the licenses was based on sexual orientation, not gender, the Health Department argued.

"Same-sex marriage is not a fundamental right protected by the due-process clause of the New York state Constitution," Weiner said in his ruling. "The institution of marriage is a fundamental right founded on the distinction of sex and the potential for procreation. Homosexual marriages do not fall within those guideposts or serve such ends."

The couples had asked the court to rule that "tradition" was not a valid basis to uphold the ban on same-sex marriage.

But Weiner wrote that fundamental rights were those "deeply rooted in this nation's history and tradition."

"For that reason," Weiner wrote, "the courts are necessarily reluctant to expand the scope and definition of fundamental rights. Exercising such restraint here, this court declines petitioners' request to include in those rights, considered fundamental to our concept of ordered liberty, the right to marry a person of the same sex."

Weiner concluded that it was the job of the state Legislature, not the court, to determine the future of same-sex marriages.

The couples had argued that many in society did not approve of homosexuals and same-sex marriage and that they had the ability to unfairly influence the Legislature. Siegel had argued that court action was needed, as it was during the civil-rights movement of the 1960s, to ensure fair and equitable treatment of all members of society.

Weiner also wrote in his ruling that he was not judging homosexuality.

"The court's denial of these constitutional claims is not to be equated with moral disapproval of homosexuality," Weiner wrote. "The morality of same-sex relationships is not at issue here."