By Jena Ardell
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Paradoxically, last year when the California legislature voted to allow same-sex marriage, another moderate Republican, Governor Arnold Schwarzenegger, vetoed it, saying the courts should decide. "If the ban of same-sex marriage is unconstitutional, this bill is not necessary. If the ban is constitutional, this bill is ineffective," he explained.
The ideal scenario for supporters of gay marriage would see the Court of Appeals ruling that the state's gender-neutral laws already permit the couples to marry. But a more likely positive outcome would mirror the decision in Massachusetts, where the Supreme Judicial Court gave the legislature 180 days to rewrite the statute. The first legal weddings took place exactly six months later.
It didn't take long for conservative politicians, including Governor Mitt Romney, to unearth a 1913 anti-miscegenation law, still on the books, that barred couples from marrying in Massachusetts if they weren't allowed to wed in their home states. But New York has no such law, assured the ACLU's Cates.
If the court decides in favor of marriage, only a federal or state constitutional amendment could reverse it. An amendment to New York's state constitution would be tough to attain: It would require a majority of two consecutive sessions of the legislature before the issue is sent to voters. Massachusetts, which has similar requirements, has so far failed to pass an amendment, and public opinion there has since shifted in favor of gay marriage.
But the court's decision could easily go the other way. If the judges, trying to avoid being tagged as judicial activists, decide to punt on the issue and send it back to the legislature, it could be decades before New York allows same-sex nuptials. "If the Court of Appeals rules against us, this suit is dead. There's no further legal remedy at that point," says Wessel. "We start down the long, long road of legislative action."
During the hearing, New York City's lead attorney, Leonard Koerner, suggested that legislators might be holding off on legalizing same-sex marriage until the end of litigation. His boss, Mayor Bloomberg, has promised he'd go to Albany to lobby for a same-sex marriage law, and Spitzer, probably the next governor, has said he supports gay marriage. But Albany functions like the L.I.E. at rush hour, so it could take a generation for a law to pass, and even then it could possibly come in bits and pieces.
Consider SONDA: The state's Sexual Orientation Non-Discrimination Act, which protects gays and lesbiansbut not transgender peoplein employment, housing, education, and public services, took 31 years to become law. The Democrat-controlled assembly sent the bill to the senate every year from 1993 to 2003, only to have it languish in the Republican-led higher chamber. Only a deal between the Empire State Pride Agenda, Pataki, and Senate Majority Leader Joseph Bruno secured the bill's passage in 2003.
Even so, Democratic state senator Thomas Duane, of Manhattan, one of three openly gay lawmakers in Albany, is optimistic. He is sponsoring a bill to permit same-sex marriage by "cleaning up" the Domestic Relations Law, which he plans to pass whether or not the court rules for marriage.
"The preference of my colleagues here is not to do anything and to let the court decide," Duane says. But if it doesn't, Duane says he's confident that he could sway Bruno and rally senators to pass his billespecially given the upcoming elections. Republicans hold an eight-seat majority in the senate, meaning that winning five would give the Democrats control of the body. And those senate seats up for grabs, Duane points out, represent districts that, though they elected Republicans, tend to be socially liberal.
"If you look at the polls in Massachusetts, Vermont, California, the trend is going toward equalizing marriage rights," Duane says. "I am confident that same-sex civil marriage will be a reality during the time I'm in the legislature, and I'm not going to be here till I die."
For now, nobody in New York seems to be discussing civil unionsa compromise that Connecticut and Vermont have made, though a court case in Connecticut is already challenging civil unions there. John Wessel dismisses the notion of civil unions outright: " 'Separate but equal' is never equal," he says.
Even if the court settles the debate here, it will continue to rage nationally. The federal Defense of Marriage Act is still on the books, right-wing lawmakers in Washington have vowed to keep trying for a constitutional prohibition, and states are still weighing the value of civil unions versus marriages. But most gay rights advocates concede that the time hasn't yet come to take the issue back to the U.S. Supreme Court.
"The theory is that we need to have more time to have a conversation with the public to explain to them why we need to allow same-sex couples to get married," says the ACLU's Cates. "We need to give the country more of an opportunity to see the world isn't going to change because we allow gay people to marry."
But for people like John Wessel it has: "To meI grew up in the '50s and '60syou were constantly told by the police that you're a criminal, by priests that you're a sinner, by psychiatrists that you're sick," he says. "To have lived through that period . . . to have watched that progress, we have to get to the finish line. To get the full rights we deserve, we have to have full equality."