A New York State Supreme Court justice in Ulster County, E. Michael Kavanagh, has issued a permanent injunction ordering New Paltz Mayor Jason West to desist from performing marriages between same-sex couples.
Kavanagh’s June 7 order made permanent a temporary order that had been issued several months ago after Liberty Counsel, a right-wing litigation group, filed a lawsuit on behalf of Robert Habel, a dissenting member of the New Paltz Board of Trustees.
West, who began solemnizing weddings without marriage licenses for same-sex couples on February 28, plans to appeal the ruling.
Kavanagh issued a narrowly-focused opinion that takes no position on any issue other than whether West had the authority to perform marriages for same-sex couples, or any other couples, who had not obtained a valid New York State marriage license. Kavanagh said nothing in his opinion about whether the marriages that West performed were valid, or whether West is guilty of the criminal charges filed against him and being litigated before another judge. Nor did Kavanagh consider the question of whether the refusal of the New Paltz town clerk to issue licenses to same-sex couples violates either the state’s marriage laws or the constitutional rights of the applicants.
Instead, Kavanagh limited his attention to the question of whether West is entitled to ignore the statutory requirement of a marriage license based on the mayor’s view that same-sex couples have a constitutional right to marry. Conceding that the refusal of licenses to same-sex couples “may violate those constitutional provisions that guarantee to all equal protection of the laws,” Kavanagh insisted that “the decision to issue a marriage license in this State is not one for the Mayor to make; that duty by State law belongs to the Town Clerk.”
Indeed, Kavanagh’s decision even appears to suggest that had the clerk decided to issue the license, West could have gone ahead and performed the marriages.
Without getting into the merits of the clerk’s decision, Kavanagh did note that the refusal of the licenses was consistent with Attorney General Eliot Spitzer’s informal opinion rendered on March 3, concluding that the current New York marriage law does not allow for same-sex marriages. Spitzer has since expanded on that opinion in his defense of affirmative lawsuits that were subsequently filed by Lambda Legal and the ACLU. While taking the political position that same-sex couples should be allowed to marry as a matter of public policy, Spitzer is arguing that neither the federal nor state constitutions compel that result.
Finding a “clear violation of the Domestic Relations Law,” which specifically provides that certain public officials, such as mayors, are authorized to perform weddings for couples who have obtained marriage licenses, Kavanagh concluded that West’s attempt to characterize his action as “civil disobedience” had “profound and unsettling implications,” because it could lead to widespread lawlessness by public officials.
Kavanagh concluded that West is “by his office obligated to comply with the law and abide by it. A public officer may not question the constitutionality of a statute and refuse to comply with its provisions. Indeed, the Mayor, as a town official, cannot challenge the constitutionality of a statute relating to his governmental powers and duties.”
Kavanagh’s comment must be read in context, for certainly West could challenge the constitutionality of the statute by bringing a lawsuit. The justice undoubtedly meant to say that West’s doubts about the constitutionality of the marriage restriction did not provide him with authority to ignore the Domestic Relations Law’s clear requirements.
West’s attorney, E. Joshua Rosenkranz of Heller Ehrman White & McAuliffe, a law firm that has donated significant time to gay rights causes during the past decade, released a statement disagreeing with Kavanagh’s narrow characterization of the issues presented by the case.
“The only reason any couple in this case was denied a marriage license was because they were of the same sex, and the only reason Mayor West acted was because the denial is unconstitutional.”