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This could be the summer of love.
New York State's highest court could decide as soon as this week whether to give gay and lesbian couples the right to marry. The Court of Appeals heard arguments on behalf of more than 40 couples on May 31, and experts say a decision is likely before the court goes into recess on July 1. If the judges do side with the couples, New York will become the second state to give same- sex partners the same rights as straights.
Either way it goes, the ruling will come at a charged moment in the nation's history. President Bush and his Republican allies tried and failed to ram a constitutional amendment banning gay marriage through the Senate last month, and 44 states have already altered their laws in favor of heterosexual-only marriage. High courts in New Jersey and Washington State could also rule at any time, and similar cases are pending in six other states.
"If we get a clean decision, we'll be dancing in the streets," says John Wessel of Brooklyn, who, along with Billy O'Connor, his partner of 27 years, joined one of the suits in 2004. "We'll be married within a month." Wessel and O'Connor are determined to marry legally in New York, not in Massachusetts or Canada.
Even the most experienced court observers have trouble handicapping this decision. Judge Albert M. Rosenblatta moderate Pataki appointee whom gay-marriage advocates were counting onrecused himself at the last minute, apparently because his daughter, an attorney, had worked on a case in favor of gay marriage. That left six judges to hear the arguments: Three liberal appointees of Democratic former governor Mario Cuomo and three conservative appointees of Republican governor George Pataki. In the event of a tie, the panel would bring in a seventh judge from a lower court.
Four lawsuits represent a cross-section of the state, from the five boroughs to Albany to Ithaca. The judges will decide the fate of all of them at once. Attorneys for Lambda Legal argued the New York City case, Hernandez v. Robles, while the ACLU brought the statewide Samuels v. New York State Department of Health.
Wessel, a plaintiff in Samuels, attended the Court of Appeals hearing and was moved by the experience. "For my generation to have gotten this farone wouldn't have thought it possible to be in that courtroom having a civil discussion about gay marriage," he says. "It was a very special moment to be there, underlined by the fact that we could win this."
Lambda and the ACLU filed their suits in Manhattan amid the disappointment following 2004's Prague Spring of gay marriage. In February 2004 San Francisco mayor Gavin Newsom challenged state law and issued marriage licenses to same-sex couples. Lefty localities from Portland, Oregon, to New Paltz, New York, followed his example, and it seemed as if a grassroots rebellion was igniting in America's liberal enclaves.
But one enclavethe biggest one didn't quite spark. Mayor Michael Bloomberg refused to issue marriage licenses to gay New Yorkers, deferring to State Attorney General Eliot Spitzer's March 3 memo stating that the Domestic Relations Law, though lacking a specific proscription against same-sex marriages, would not permit them.
Committed couples responded the next day by standing in the cold rain in front of 1 Centre Street to apply for marriage licenses, and were turned down one by one. "Why don't you apply for a domestic partnership instead?" asked frustrated city clerks, handing them a 50-page explanation of the denial. Bloomberg eventually pledged his support for gay marriageafter his re-election in 2005. Meanwhile, some of those couples who didn't get licenses on that damp day sued.
One of the major obstacles to a pro- marriage ruling is a 35-year-old U.S. Supreme Court case called Baker v. Nelson ("our first same-sex marriage case," says Paul Cates, public education director of the ACLU). In 1971, two men in Minnesota applied for a marriage license and were denied. They and the ACLU went to the Minnesota Supreme Court, which ruled against them. They appealed to the U.S. Supreme Court on the basis that they were being denied their equal-protection and due-process rights, but the Supremes refused to hear the case, stating only that it lacked sufficient constitutional question.
When the U.S. Supreme Court refuses to hear a case for lack of constitutional question, that decision can be binding on lower courtsunless precedent has changed substantially. Lambda and the ACLU argued at the Court of Appeals that a great deal has changed since Baker. The Supreme Court has since made several groundbreaking decisions, including: legalizing sodomy (Lawrence v. Texas, 2003) defining marriage as a fundamental right (Zablocki v. Redhail, 1978) recognizing that gays and lesbians can't be singled out for discrimination (Romer v. Evans, 1996)
Lawyers for the city and state countered that the legislature, not the judiciary, should decide who can marry. The court should not rule on same-sex marriage because, they said, it is not the job of the judicial branch to do so. And at least two judges appeared to agree. "Why isn't this a legislative matter?" Judge George Bundy Smith asked early on.