In a magnificent lead editorial last Sunday, The New York Times took a long view of the political, legal, and social evolution likely to lead to nationwide acceptance of same-sex marriage. The Times envisions the defeat of the Federal Marriage Amendment, a long process of certain states establishing civil union and marriage rights and finally, federal intervention to pull the laggard states up to the equality standards set by the leaders.
Is New York to be a leader in establishing equal marriage rights, and how can activists help achieve that here sooner rather than later? There are three possible avenues for advancement of our rights: the courts, the state legislature and political pressure to end marriage discrimination in local communities and especially in New York City.
Lawyers expert in advancing lesbian, gay, bisexual, and transgender (LGBT) civil rights have never viewed New York courts as fertile ground for an early test of principles that would require equality in civil marriage. The equal protection clause of New York’s state constitution is applied conservatively compared to that of some other states, and New York courts tend to be followers, not leaders, in extending equal protection principles. Litigation here can no longer be delayed and prospects for the several lawsuits launched in the past week are hopefully bright given the changed climate, but a final decision by the Court of Appeals could be several years away, and the courts are a terrain for experts, not offering much opportunity for participation by activists.
The Legislature offers the least promising terrain. Permanently divided between the Democratic Assembly and the Republican Senate, even a simple nondiscrimination bill took two decades to win passage. It is difficult to foresee the day when the admirable “Right to Marry” bill, co-sponsored by Assemblymember Richard Gottfried and Senator Tom Duane, both Manhattan Democrats, could pass in the Senate, even were the Assembly ready to pass it, which it is not. Yet activists should actively lobby legislators to educate them about the necessity of passing this legislation, and more immediately, to block adverse legislation or constitutional amendments––explicitly defining marriage as only between “a man and a woman” or blocking recognition of out-of-state same-sex marriages. The state Democratic Party last year passed a resolution committed itself to full marriage rights for same-sex couples, but that message needs more reinforcement even among Democratic legislators.
I applaud the breaching of the dam in San Francisco and New Paltz, and believe that local political pressure to end marriage discrimination is the most useful work for marriage equality activists. Demonstrations at marriage clerks’ offices, at income tax offices, and at immigration offices dramatize the denial of some 1,400 rights and benefits to same-sex couples instantly awarded to heterosexuals upon marriage, and can help improve the climate for favorable judicial and legislative action.
More immediately, there is sound basis in existing law to demand immediate issuance of marriage licenses to same-sex couples, and we should seek this in every possible locale.
New York’s marriage statute does not restrict issuance of marriage licenses to a man and a woman, and––unlike incest or bigamy––a same-sex union is conspicuously not listed as grounds for voiding a marriage. In the month since San Francisco, we have built great political support for applying our “gender-neutral” statute in a nondiscriminatory fashion, culminating in the New Paltz marriages and the call by Speaker Gifford Miller and other councilmembers for New York City to issue licenses. Nearby Asbury Park has issued licenses under a similar “gender-neutral” reading of New Jersey laws.
We must seek to overcome two recent efforts on the state level aimed at blocking such local initiatives. The state Department of Health, doubtless at the direction of Governor George Pataki, sent a vicious memo to all marriage clerks outside New York City threatening criminal prosecution for issuing licenses to same-sex couples. Though prosecution of clerks for merely issuing licenses on a nondiscriminatory basis may be unlikely, the memo nonetheless has a chilling effect. Since the city runs its own marriage license system not under the supervision of the state, New York City is a particularly good target for activism.
“Solemnization” of a marriage without a license, as performed by Mayor Jason West in New Paltz, is a misdemeanor, but it fits into the admirable tradition of nonviolent civil disobedience and can help tear down the barriers to equal marriage rights. We should work to identify other mayors and city clerks willing to show the courage West demonstrates.
Although Attorney General Eliot Spitzer’s recent nonbinding opinion wrongly discourages efforts to demand the effort to demand immediate equal treatment, it helps our cause in two respects. By restating longstanding state law requiring that out-of-state marriages, such as those in Massachusetts, be given equal treatment, it will build pressure to allow us to marry here rather than have to travel elsewhere. Spitzer also strongly delineated the equal protection constitutional grounds for challenging continued discrimination.
The advisory opinion acknowledges that both the statutory construction and constitutional questions as to whether licenses issued now to same-sex couples are valid will be resolved not by the attorney general but by the courts.
Spitzer’s opinion is important not for its legal weight, but as an attempt to channel pressure for marriage equality away from elected officials and towards the courts. It seeks to deflect demands on local officials to apply the current law in a nondiscriminatory fashion, and also to stanch the flood of marriages that would lead to right wing pressure on the Legislature to amend state law to prohibit same-sex marriages.
The attorney general’s views may be useful in the court fights over recognition and constitutional rights, but we should not sit back and await eventual court victories, but should redouble efforts to win equal rights from local communities now under current law. Demanding our rights under current law can be a faster route than the courts to achieving those rights, and may provide a basis for more favorable court action. It may well be easier to persuade courts to uphold the good faith determination by local elected officials to apply the law in a nondiscriminatory fashion, than to get courts to order political leaders to do something they do not want to do. From a public relations standpoint, it is better for “activist officials,” rather than “activist judges,” to take the lead.
The particular focus should be New York City, where we have the largest LGBT population in the country. Like tearing down the Berlin Wall, breaking down the barriers to marriage equality here can help spread this revolutionary movement across the country. It is shameful that Mayor Michael R. Bloomberg not only fails to call for marriage equality, but hides behind a deceitful and deliberate misreading of current law to block demands that the law be applied in a nondiscriminatory fashion.
It is also shameful that New York City Clerk Victor Robles, having unbridled discretion to apply the law in a nondiscriminatory fashion, and not bound by any controlling precedent, continues his choice to willfully discriminate against same-sex couples in the issuance of licenses.
Intense and unrelenting political pressure should focus on these two officials—the mayor and the clerk—to do what the law permits and the Constitution requires: issue marriage licenses now on a nondiscriminatory basis. While supporting our legal gladiators in the courts, and attempting to educate our legislators, marriage activists should focus our energy on pressing for immediate equality right here in New York City.
Lawrence C. Moss is a Manhattan attorney who heads up the
Reform Caucus of the New York Democratic State Committee.
©2004 Community News Group