http://www.thejournalnews.com/apps/pbcs.dll/article?AID=/20060328/NEWS03/603280321/1026/NEWS10

'Nyack 10' seek right to marry

By LAURA INCALCATERRA
lincalca@lohud.com
THE JOURNAL NEWS
(Original publication: March 28, 2006)

Gay couples who lost their fight to marry in Rockland 18 months ago will appeal the ruling today in state Supreme Court.

The couples, who became known as "The Nyack 10," include Nyack Mayor John Shields and his partner.

Shields said he was not optimistic about the outcome, but would still go to the Second Appellate Division in Brooklyn today to pursue the case.

"It would appear it's not going to be successful," Shields said. "However, we're going to go and do the fight, give over our case and see what happens."

Shields said he formed his opinion based on the outcome of several recent court rulings against same-sex marriage. He said the courts were saying it was not their job to rule on the issue.

"They seem to be saying this is up to the Legislature," Shields said.

The mayor also said civil rights groups were prepared to take the fight to the state Legislature if the courts failed to rule in favor of same-sex marriage. Shields said he, too, would continue to pursue the effort, even if he lost in court.

The civil rights lawyer representing the couples, Norman Siegel, said an appeal would argue that the state Domestic Relations Law allowed same-sex couples to marry.

Siegel said denying such marriages deprived same-sex couples of a fundamental right protected by the state constitution's due-process clause.

The lawyer said the denial of same-sex marriages could not survive the heightened scrutiny applicable to sexual orientation-based and sex-based discrimination under the state constitution's equal protection clause.

The 10 couples went to Orangetown Town Hall to get marriage licenses in March 2004.

Town Clerk Charlotte 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 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 in denying the licenses.

In his October 2004 ruling, then-acting state Supreme Court Justice Alfred Weiner rejected all the couples' arguments.

The justice determined that the state Domestic Relations Law, which governs marriage in New York, allowed marriage licenses to be issued only to heterosexual couples.

Weiner found the law did not specify that only people of the opposite sex could marry, and he ruled that 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 justice dismissed the couples' claim that their civil rights had been violated because they had been discriminated against based on their sexual orientation. He ruled the Health Department's argument was correct.

The state constitution makes it illegal to discriminate against a person because of his or her gender.

The Health Department asserted that was not an issue because men and women were allowed to marry in New York ­ they just 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.

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

 

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Tuesday March 28, 2006