Opposite Local Rulings on Gay Marriage
Should be Resolved by Court of Appeals.
Is This the Last Struggle for Civil Rights?

By Henry J. Stern
February 9, 2005

Thirty-one years ago, I took my seat in the City Council as the newly elected councilmember at large (Liberal - Manhattan). One of the first bills I signed on to sponsor was the gay rights bill, at the time a controversial piece of legislation that had not advanced in the Council since it was introduced in the spring of 1971.

The bill was not passed until 1986, and the determining factor then was the election of Peter F. Vallone as speaker. He was opposed to the bill, and voted against it, but he had promised, if he became speaker, to allow the bill to come to a vote. He kept his word, the bill passed, and it was signed by Mayor Koch, a longtime supporter of gay rights who, in 1978, in his first days as mayor, had issued an executive order barring discrimination by the city on the basis of sexual orientation.

One of the arguments used by opponents of the gay rights bill was that, if it were to pass, someday gay marriage would be demanded. We said that the bill only applied to discrimination in housing, public accommodations, and employment, and that gay marriage, which seemed so remote at the time, was not an issue. Both sides were right: thirty years later gay rights did become a national issue, and the Council bill we introduced protected civil rights and had nothing to do with marriage.

Normally, the State Legislature is the place where laws on domestic relations are adopted and amended. The issue of abortion is one that has come before the legislatures of various states, with different results. Ultimately, the issue was decided by the Supreme Court of the United States in Roe v. Wade in January 1973. That decision has not concluded the issue; there have been repeated attempts to reverse it. In the most recent case on the subject, Chief Justice William Rehnquist and several colleagues concluded that, apart from its merits, Roe v. Wade had been the law of the land for a generation, and should not be overruled merely because of changes in the court's membership.

With regard to the issue of gay marriage, the Supreme Court has so far shown no inclination to set national policy, preferring to leave such matters to the states, pursuant to the Tenth Amendment to the Constitution (part of the Bill of Rights): "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In the last several years, gay communities have sought state recognition for relationships they want to make permanent.  They have taken this demand to the courts.  In Massachusetts in February 2004, the Supreme Judicial Court held by a 4-3 vote that not only were same-sex marriages legal, but that the state could not prohibit them even if it were so inclined, because the right to marry within one's own gender was inherent in the Constitution of the Commonwealth. This was certainly not the public's perception when witches were being burned in Salem in 1692, but times have changed.  A subsequent attempt in the Massachusetts Legislature to amend the State Constitution to forbid gay marriage was not successful.

The Supreme Judicial Court decision, and the uproar that followed it, was not at all helpful that year to a presidential candidate from Massachusetts, who, when asked for his opinion on the subject, said that he opposed gay marriage but supported civil unions, which are state-sanctioned marriages in all but name. The junior senator from the Bay State also told voters of some of the 11 states that adopted by referendum in 2004 laws prohibiting gay marriage that he would support those referenda; but by that time his credibility had been so impaired, rightly or wrongly, that he was not widely believed. And in the final week of the campaign, President Bush said that he, too, would support civil unions.

Certainly the spectacle on Inauguration Day of the president, his wife and daughters, the vice president, his wife and daughters, one daughter's husband and one's companion, on the official platform erected for the high occasion, did not indicate that an era of darkness had begun for gays and lesbians. Au contraire: It was setting a standard by public example that family love transcends concern over God-given sexuality. Enormous unnecessary suffering has been caused by the fact that many parents of gay and lesbian children are not as accepting as the Cheneys.

The New York State Court of Appeals has not made a decision on the legality of gay marriage here. There are four principal possibilities:

(1) It is unconstitutional to allow it.

(2) It is a matter for the State Legislature to decide, like school financing, and if they do not come to a decision, the court will decide the issue.

(3) It is a question in which localities may adopt their own standards, reflecting community sentiment or whatever other factors they wish to consider, and

(4) It is unconstitutional not to allow it, even though the issue has not arisen in the first 200 years since the adoption of the state constitution.

Several trial court decisions have ruled gay marriage illegal under current state law. Last week, a Manhattan trial judge, Doris Ling-Cohan, ruled that gay marriage was legal. Clearly, this is a matter for the Court of Appeals, New York State's highest court, to resolve, one way or another. An issue has arisen over whether the local judge's decision should be appealed, or allowed to stand, and the City Clerk directed to issue marriage licenses to gays and lesbians.  So far, the Clerk has refused to do that, following current state law.

A decision on this important question defining marriage is clearly the responsibility of the state's highest court. Opponents of an appeal by the city should be aware that it could lead to a result where gay marriage would be legal in some counties but not in others, depending on the inclination of the trial judge. Or different trial judges in the same city or county could come to different conclusions, depending on their own opinions on the controversial issue.

For the city to fail to appeal the decision would be to engage in a collusive attempt to deny judicial review of an important issue. This technique has been used before by the city. In 1940, Bertrand Russell, a British philosopher, received a teaching appointment at City College. Russell, an eminent scholar who in 1950 won the Nobel Prize for literature for his history of Western philosophy, was also an advocate of what at the time was called "free love": consensual sexual relations between adult men and women who were not married to each other.
 
A conservative group sued the city to prevent the use of public funds to pay the salary of a man they deemed immoral. The group won an injunction from one judge at the trial court level.  Mayor La Guardia, regarded as the greatest 20th-century New York City mayor, chose not to appeal, thus letting the decision stand and preventing Russell from lecturing at CCNY. That was not his finest hour.   We do not need another Bertrand Russell case in 2005, where for political reasons a mayor elects not to appeal a case that is far too important to be decided by one lower court judge.

To order City Clerk Victor Robles to issue marriage licenses at this time would create a scenario in which, if he chose to obey the order, licenses could be issued which would be later declared invalid.  In San Francisco, then 36-year-old Mayor Gavin Newsom foolishly and illegally raised the hopes of thousands of gay couples by issuing licenses later ruled invalid by California state courts. In New Paltz, a village in Ulster County in New York State, then 26-year-old Mayor Jason West caused a similar spectacle by taking it upon himself to issue marriage licenses until he was forbidden to do so by court order. Each widely-publicized episode led to a rush of honorable and committed gay couples who pledged themselves to each other in a ritual that ultimately had no legal effect.

Mayor Bloomberg is correct in not following these unfortunate examples. He should try to bring the case directly to the Court of Appeals, sparing the time and energy that would be consumed by intermediate judicial review in the Appellate Division. Whatever the highest court decides will be the law of the state, unless changed by the Legislature or the voters, who must approve constitutional amendments.

Political partisans seeking to exploit the issue have demanded that the mayor order the city clerk to issue licenses. First, the city clerk is not obliged to follow an order that he believes is illegal. Second, the city clerk, who is also the clerk of the council, is not even a mayoral appointee, but is elected for a fixed term by the City Council. Why does the council not demand directly that their appointee do their bidding? It is because their target is the mayor, and not their own appointee, who by law is the official responsible for issuing marriage licenses.

Gay marriage is a complex issue. We have written two previous columns on the subject when it boiled over about a year ago: Should Anatomy Govern Marriage?  Not a Question for Gamesmanship and Gay Marriage Redux: Spitzer Will Enforce A Law He Dislikes. Both were published March 3, 2004, one during the day and the other late in the evening, after Attorney General Eliot Spitzer decided that he must enforce existing law, which forbids same-sex marriage. Why did not the partisans denounce Mr. Spitzer? Is it because he is a Democrat and their putative candidate for governor?

The law will take its tortuous course, and hopefully the matter will be resolved with justice for all, and all adult New Yorkers will be able to receive state sanction for their lifelong commitments to each other, regardless of gender. The posturing that has unfortunately accompanied this historic struggle for human rights should be seen for what it is — pandering by those seeking to attract public attention to themselves by attacking people whose commitment is as sincere as theirs, and considering their relative constituencies, far more courageous.

This article appears on the editorial page of today's New York Sun, under the headline "Gay Marriage in Gotham."