By Bob Roehr
A trial judge in Manhattan ruled Feb. 4 that New York’s marriage statues discriminate against same-sex couples in violation of that state’s constitution. Judge Doris Ling-Cohan declared that the words husband, wife, groom and bride as they appear in the relevant sections “shall be construed to mean spouse … [and] apply equally to either men or women.”
The case was brought in March 2004 by Lambda Legal on behalf of five New York City couples who had sought and been denied marriage licenses. The judge’s ruling is stayed for 30 days to allow for appeal.
Judge Ling-Cohan’s 62-page decision was at times lyrical; replete with legal citation; and laid out in lucid, readable, and personal terms why there could be no other outcome. Her decision began:
“From the literary references of Shakespeare’s Romeo and Juliet, to the anti-miscegenation laws of this country’s recent past barring interracial marriage, the freedom to choose whom to marry has consistently been the subject of public outcry and controversy. In fact, ironically, the parents of one of the plaintiffs were, themselves, barred from marrying each other by an anti-miscegenation law that made it illegal for interracial couples to marry.”
Plaintiff Curtis Woolbright’s parents were from Texas where state law had prohibited them from marrying because one was black and the other white. So they moved to California to tie the knot and raise a family, as Karen Woolbright attested in her statement and Judge Ling-Cohan cited in her opinion.
The decision went on to say, “The challenges to laws banning whites and non-whites from marriage demonstrates that the fundamental right to marry the person of one’s choice may not be denied based on longstanding and deeply held traditional beliefs about appropriate marital partners.”
Ling-Cohan noted, “As other States have also observed, the right to marry is not a privilege conferred by the State, but a fundamental right that is protected from unwarranted State interference … It is a fundamental right of free men.”
She continued, “Because the exclusion of same-sex couples from eligibility for civil marriage infringes the fundamental right to choose one’s spouse, such exclusion may be sustained only if it serves a compelling state interest.”
Backing her opinion up with case law citations she wrote, “It is clear that moral disapproval of same-sex couples or of individual homosexuals is not a legitimate state purpose or a rational reason for depriving plaintiffs of their right to choose their spouse.”
The state’s second argument in denying marriage to gays was the need for uniformity with other states. The judge said, “It would be a greave disservice to residents of New York [to deny its citizens rights] simply because those rights may not be acknowledged elsewhere.”
“History demonstrates that marriage is not a stagnant institution … There clearly has been a steady evolution in the institution of marriage throughout history,” Ling-Cohan said in reviewing how women have changed from chattel of their husbands to equals. The most recent significant change in marriage has been no-fault divorce.
More positively she wrote, “Recognition that the right to choice in marriage applies to all people, including gays and lesbians, is consistent not only with the changing definition and purpose of marriage, but also with New York’s evolving history of respect for, and protection of, same-sex relationships,” as demonstrated by actions taken by the state’s courts, legislature, executive branch, and local governments.
This “historic ruling delivers the state Constitution’s promise of equality to all New Yorkers,” said Susan Sommer, the lead Lambda Legal attorney on the case. “The court recognized that unless gay people can marry, they are not being treated equally under the law. Same-sex couples need the protections and security marriage provides.”
“Last week Mary Jo and I celebrated our 23rd anniversary together, but we’ve never had all the protections and rights that come with marriage,” said Jo-Ann Shain, one of the plaintiffs in the case. “We need these protections to take responsibility for each other and for our daughter, and we are enormously grateful that the court saw that and said our family should be treated equally.”
“We’re getting hitched,” plaintiff Curtis Woolbright said exuberantly. “We’re so excited about this we can’t express it.”
“The court simply recognized that every New Yorker deserves the same promise of equality under law,” said Seth Kilbourn, who heads up the Human Rights Campaign’s marriage project. “This is about real people who are being denied real protections and security without the right to marry.”
Social conservatives issued their standard rant about defending traditional marriage. The Family Research Council’s Tony Perkins said, “Unless Congress takes action to defend the institution of marriage we can expect these judicial fire drills prompted by aberrant judges.”
They had to drop the bit about “unelected judges” because Ling-Cohan is elected. And as Lambda Legal pointed out in their press release, “She was the only candidate in a field of 12 who was nominated by four parties, including the Republican and Democratic parties. She received 50,384 votes on the Republican Party line,” more than most of the other candidates.
A day after the decision was announced, Mayor Bloomberg said that while he supported it, he would appeal it. Citing the confusion in San Francisco when that city began issuing marriage licenses to gay couples, only to have the court declare them void, he said the people have a right to know where they stand. An expedited appeal would be the best way to achieve that.
“Mayor Bloomberg is a coward,” said Tom Duane, an openly gay member of the New York legislature. “He should stand with us in this most important civil rights battle of our lifetime.”
The Republican Mayor’s decision to appeal and Democrat Duane’s reaction are both tied up in election year politics. The Mayor faces a conservative challenge in the primary, while Duane hopes that a Democrat can reclaim that office. An appeal likely would not come down until after the fall elections.