It won't be in time for June weddings, but the New York State Court of Appeals, the state's highest court, will hear a group of cases on May 31 arguing that the state’s refusal to let same-sex couples obtain marriage licenses violates the state constitution. A decision is expected by summer, but that might not be the end of it.

The issue of same-sex marriage got lots of attention early last year when Manhattan-based Justice Doris Ling-Cohan ordered the city to start issuing licenses to gay and lesbian couples who wished to marry. At that time in February 2005, facing uncertain reelection prospects, Mayor Michael Bloomberg tried to have it both ways, appealing the decision to fend off conservative attacks and simultaneously announcing that he was now in favor of gay people being able to marry to try to appease liberals.

The Bloomberg administration was successful in having Ling-Cohan’s decision overturned by the state Appellate Division, a mid-level court. Three other same-sex marriage cases were brought elsewhere in the state and in each case Attorney General Eliot Spitzer defended state law even though he is an ostensible supporter of the right of gay people to marry. In 2004, Spitzer issued a legal opinion that while New York law does not permit same-sex couples to marry, it must recognize legal same-sex marriages performed elsewhere.

Thus, there are many legally married same-sex couples living in New York who obtained their licenses in Canada. The federal government does not recognize them as married because of the 1996 federal Defense of Marriage Act that then Representative Chuck Schumer and First Lady Hillary Clinton -- now the two U.S. Senators from New York -- supported. It was signed by President Bill Clinton and forbids the United States from giving any federal recognition to a same-sex marriage. While it allows the states to license them (it looked as if Hawaii was about to at the time, but it did not), it also allows the states to refuse recognition to same-sex marriages performed elsewhere.

The vast majority of states have laws limiting marriage to man-woman couples, many of them passed after 1996. When Massachusetts opened marriage to gay couples by a 4-3 order of their Supreme Judicial Court in 2004, many states went further by passing state constitutional amendments banning same-sex marriage and in many cases any legal recognition of gay couples such as a domestic partnership or civil union (which are offered to the people of Vermont and Connecticut.) Even Massachusetts could close marriage to gay couples if a pending state constitutional amendment gets on the ballot in 2008.

New York City does recognize gay couples legally married elsewhere. So do many divisions of the state including the pension system, thanks to a ruling by State Comptroller Alan Hevesi. The State Division of Taxation and Finance balked, however, issuing a ruling in April that legally married same-sex couples must file as unmarried in New York. In Massachusetts, gay married couples must file their state returns as married and their federal returns as unmarried. To figure their state tax, however, they must do a dummy federal form as if they were married because state tax is derived from federal forms. Whew!

Constitutional Amendment?

President George W. Bush is in favor of a federal constitutional amendment that would ban same-sex marriage and forbid courts from granting marriage-like rights to same-sex couples. It needed a two-thirds vote in both houses of Congress and didn’t get anywhere near that in 2004. It is being brought back to the United States Senate and House in early June where it might pick up a few more votes, but is mainly being revived not because it will pass but because it can be used as a wedge issue by the Republicans in the fall elections as they try to stem the slide of their party and standard bearer in the polls over the last year. It is opposed by Senators Schumer and Clinton who, while they still do not support the right of gay people to marry, say they support civil unions that would grant comparable rights to gay couples.

If a federal judge were to rule that the Defense of Marriage Act is unconstitutional, that might trigger a two-thirds vote for the Federal Marriage Amendment which would then need ratification by three-fourths of the states--very possible given the actions of state legislatures on the issue to date.

New York – Neither For Nor Against...Yet

New York is one of a handful of states that has not taken any legislative action for or against same-sex marriage though bills are pending in Albany both to ban it and allow it. The legislature has passed some bills over the past year granting incremental rights to same-sex partners including control of remains when one partner dies, but nothing that has caused much controversy.

The New York Court of Appeals can do more than either strike down or uphold the state law that, despite the absence of any explicit mention of gender, has been interpreted thus far to restrict marriage to heterosexual couples. It could also rule that equal protection requires the state to give equal rights to gay couples and leave it to the legislature to fashion the solution. That’s what the Vermont high court did in 2000 and Vermont’s Governor Howard Dean and the legislature came up with the first statewide civil union scheme, granting marriage in all but name to gay couples.

Predicting the outcome of the case is difficult, but was made more so in early May by the announcement that Associate Judge Albert Rosenblatt recused himself from it without explanation. If the remaining judges deadlock in a 3-3 tie, it might have to be re-argued, a court spokesman told the Albany Times Union, with a judge from a lower court selected by the chief judge, Judith Kaye.

The Empire State Pride Agenda, the statewide lesbian and gay lobby group, was up in Albany on May 8 pressing legislators for the first time to go on the record in favor of same-sex marriage rights.

New York’s judges may be influenced by the outcomes of state high court decisions pending in Washington State and especially neighboring New Jersey, both of which are expected to come down in favor of the gay plaintiffs.

Arguing for the gay plaintiffs in New York are the American Civil Liberties Union, the New York Civil Liberties Union, and the Lambda Legal Defense and Education Fund along with some private firms.

It is not certain that the Court of Appeals will rule in favor of the right of gay couples to marry -- the majority of justices, after all, have been appointed by a Republican governor – but if it does, that will probably be the end of it. Speaker Sheldon Silver, while no proponent of same-sex marriage, has assured colleagues that his Assembly will not pass a state Defense of Marriage Act or constitutional amendment against it.Assembly Member Dick Gottfried, the chief sponsor of the state Equal Marriage Rights bill that would open the institution to gay couples, believes that the state legislature would opt for marriage over civil unions because “in New York, the rejection of separate but equal is well rooted.”

If on the other hand the court rules against the plaintiffs, the ball would also be in the legislature’s court and the pressure would build to act just as they did when the court struck down Health Department smoking regulations. In that case, the legislature passed sweeping anti-smoking laws within nine months. While Gottfried does not necessarily believe the legislature would act that fast on the gay marriage issue, he said it would act sooner rather than later, especially if Eliot Spitzer is elected governor, committed as he is to introducing his own bill opening marriage to gay couples.

Spitzer’s Positions

Spitzer was a featured speaker at an Albany rally for same-sex marriage on May 8. Later in the month, his Senior Counsel, Peter H. Schiff, will be in court arguing that same-sex couples do not and should not have the right to marry under the current law. The city’s Law Department is also arguing against same-sex marriage in the case.

If the opponents of same-sex marriage were worrying that Spitzer and Bloomberg would throw the case against same-sex marriage, they have only to read their briefs. The Attorney General argues that the refusal of the state to issue licenses to the gay couples does not violate the due process or equal protection clauses of the New York State constitution nor is marriage to a partner of the same-sex a “fundamental right.” The exclusion, the state argues, is “rationally based to the state’s legislative interests.”

Spitzer argues that the “state has a legitimate interest in channeling opposite-sex relationships into marriage” and in “uniformity among the states regarding what relationships will be subject to the legal obligations and protections of marriage.” The city makes similar arguments.

While Spitzer argues that he is obligated to defend the state’s marriage statute despite his personal beliefs, Attorney General Robert Abrams did not defend New York’s anti-sodomy statute when it was struck down by the Court of Appeals in 1980. Spitzer said he will introduce legislation to legalize same-sex marriage if he prevails against it in court.

Other Gubernatorial Candidates’ Positions

Spitzer’s Democratic opponent for his party’s nomination for governor, Nassau County Executive Tom Suozzi, opposes same-sex marriage and favors civil unions for gay couples, though he was blindsided when the Democrat-controlled legislature in Nassau defeated a domestic partner registry in April.

All of Spitzer’s potential Republican opponents oppose same-sex marriage, including former Massachusetts Gov. Bill Weld who once spoke at wedding for a former aide and his husband. Weld flip-flopped to curry favor with the state Conservative Party, which is adamantly opposed to legal recognition of gay relationships and has since endorsed Assembly Member John Faso for governor.

May 31st Hearing Will Be Webcast

Fourteen religious and civil rights groups filed friend-of-the-court briefsin April supporting the plaintiffs in the cases going before the Court of Appeals on May 31. Among the most notable are the NAACP Legal Defense and Education Fund, the American Psychiatric Association, the National Organization for Women, the Child Welfare Fund and the Association of the Bar of the City of New York.

Lambda Legal Defense, whose attorney Susan Sommer, will be among those arguing for the plaintiffs in the case, will surely be stressing what was ruled by Justice Doris Ling-Cohan in February 2005: “Similar to opposite-sex couples, same-sex couples are entitled to the same fundamental right to follow their hearts and publicly commit to a lifetime partnership with the person of their choosing. The recognition that this fundamental right applies equally to same-sex couples cannot legitimately be said to harm anyone.”

There has been such interest in the May 31 Court of Appeals hearing that the court will allow it to be webcast at 2 PM that day and subsequently archived. Go to the Court site and click on the webcast in the right hand column.

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.