Bliss or Miss


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. Rosenblatt—a moderate Pataki appointee whom gay-marriage advocates were counting on—recused 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 far—one 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 enclave—the 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 marriage—after 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 courts—unless 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.

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 lesbians—but not transgender people—in 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 bill—especially 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 unions—a 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 me—I grew up in the ’50s and ’60s—you 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.”