VOLUME 3, ISSUE 10 | March 4-10, 2004
Less than a week after the mayor of the Village of New Paltz presided over New York’s first same-sex marriages in upstate Ulster County, a crowd estimated by organizers at more than 1,000 turned out at City Hall and across the street at the Municipal Building to call on City Clerk Victor Robles to issue licenses to gay and lesbian couples here in the city.
Roughly 100 gay and lesbian couples stood on line early Thursday, March 4 morning for up to an hour before passing through security at the Municipal Building and proceeding to the clerk’s second floor office to request marriage licenses. There, they were handed a form letter from Robles explaining that his office does not view itself as authorized to issue licenses to same-sex couples. The form letter was stapled to a 28-page advisory opinion issued the day before by state Attorney General Eliot Spitzer’s office, which argued that the New York Domestic Relations Law bars same-sex marriage.
Most of the rest of the crowd on hand Thursday morning formed a picket just east of City Hall, carrying signs calling on Mayor Michael R. Bloomberg to direct the city clerk to issue same-sex licenses.
The event capped six days of intensified activism among the city’s gay and lesbian community that played out against a background of state and city officials scurrying to clarify the status of marriage in New York State. Despite the attorney general’s opinion issued on Wednesday, echoed by a similar finding from the city’s corporation counsel, official opinion on the matter was anything but clear by day’s end on Thursday.
Gay City News has learned that Manhattan District Attorney Robert Morgenthau told at least one elected official on Thursday that he disagreed with the conclusions of the state attorney general and the city corporation counsel about the legality of same-sex marriage and would not bring criminal proceedings related to such unions. One source close to the discussions with Morgenthau told Gay City News that the DA would be unwilling to prosecute any official authorized to issue marriage licenses who granted such a license to a same-sex couple.
Following in the wake of the Massachusetts court ruling on gay marriage in that state and the decision in early February by the mayor of San Francisco to challenge state law by issuing marriage licenses to same-sex couples there, the movement in New York caught fire with a February 16 Daily News op-ed written by Larry Moss, an openly gay Democratic state committee member from Lower Manhattan.
Citing two studies from the Association of the Bar of the City of New York issued in the past seven years, Moss argued that because the state’s marriage statute uses gender-neutral language, there is no explicit prohibition on same-sex unions.
A week and a half later, West, the New Paltz mayor, began a test of Moss’ argument. Because the local clerk would not agree to issue licenses, the mayor used powers granted him by the state to "solemnize" 25 gay and lesbian marriages last Friday for which the couples had no licenses. Gov. George Pataki, saying the marriages were illegal, in part because the couples had no licenses, called on Spitzer to seek an injunction. The attorney general responded that the mayor’s action did not pose the risk of "irreparable harm" necessary to win an injunction, but agreed to examine the underlying statutory question.
Meanwhile, in the city, a group of gay and lesbian activists who came together under the name NYMarriageNOW.org, called a town meeting at the LGBT Community Center in the West Village last Friday night which drew a crowd of hundreds, at which the plan for the City Hall action was hatched. On Sunday, Council Speaker Gifford Miller endorsed the group’s aims at a City Hall press conference called by Marriage Equality NY, a six-year old grassroots group.
"In a city of tolerance, diversity and unity, it is past time that Mayor Bloomberg give the basic, fundamental civil right of marriage to same-sex couples," Miller said. "It is simply wrong that a gay or lesbian couple who have made a lifetime commitment to each other do not have the same right to... marriage that my wife and I have been privileged to enjoy."
Miller joined hundreds of gay men and lesbians and a number of elected officials at the event, including three openly gay elected officials––state Sen. Thomas Duane and Councilmembers Christine Quinn and Philip Reed.
Despite the two negative legal opinions issued on the eve of the City Hall demonstration, turnout at the Thursday event pleased organizers. As hundreds of picketers outside City Hall carried placards reading "New York Marriage NOW!", Bush: Separate Is Never Equal", and "We Planned Your Weddings––Now Plan For Mine," TV camera crews buzzed around the couples across Centre Street outside the Municipal Building.
Kathryn and Elisabeth Jay, both Barnard College professors who were married in religious ceremony at St. Paul’s Chapel at Columbia in 2001, are mindful of the twin babies, a boy and a girl, with whom Elisabeth is seven months pregnant.
"We think about the fact that Kathryn is going to have to adopt her own children," Elisabeth said when asked about the couple’s motivation in seeking marriage rights.
"There is not really a word for how ludicrous that is, how horrible that is that she has to adopt her own children."
But, Kathryn also underscored the fact that the relationship and commitment between the two women is at the heart of their wish to be married.
"Elisabeth is the person that I love the most in the world and we have taken all the legal steps available to us," she said. "It is ingrained in our culture that getting married is something you do when you fall in love with someone and want to spend the rest of your life with them. That is not really a legal protection––it’s more of a cultural idea about what people who love each other do."
Judith Tax and Rabbi Nancy H. Wiener, who have lived together in Manhattan for the past 17 years, have also had a religious marriage ceremony, performed by several Reform rabbis in 1991 at the home of Wiener’s brother.
Wiener said that, as a rabbi, "The separation of church and state is very important to me and having a religious service is not the same as getting civil recognition of this union and the commitment we have made. So to have the two will only enhance what people understand our relationship to be. It will be honored in a different way. To say you’re married means something in this country and nothing else is comparable."
Speaking to the more practical concerns they have about the wills and the durable powers of attorney they have drawn up to protect each other, Wiener added, "The paperwork we have can all be challenged."
Tax said she has been an activist all her life so joining the fight for marriage "not foreign to me."
Jeffrey Becker and Steven Knight live together in Washington Heights and first heard about plans for the demonstration from Marriage Equality’s e-mail alert. They turned out to lend their voices and expect they will be back for future demonstrations.
"We are under no illusions," Becker said as the couple waited in line. "We are most likely going to be refused. We want to someday have some kind of ceremony. We may end up getting married here or in Canada or in Belgium."
At the mention of foreign weddings, Knight spoke up saying he was a lifelong New Yorker who would prefer to get married at home.
The day before the City Hall demonstration, the announcement of the attorney general’s opinion at a downtown press conference stirred enormous media scrutiny. Though stating that same-sex marriage is not authorized under state law, Spitzer said that New York should recognize such unions sanctioned by other states––such as Massachusetts.
He also noted that his office had identified "important constitutional questions" related to equal protection about the state’s marriage statute as it currently reads.
Several gay legal rights organizations hailed Spitzer’s decision for its conclusion that gay couples who marry elsewhere should be treated as married in New York State.
"The New York attorney general’s office is the first one anywhere that has said that same sex marriages entered into elsewhere are valid," Matt Coles of the ACLU told Gay City News.
Organizers of the City Hall demonstration, however, took a different view of the attorney general’s opinion.
"Spitzer’s advisory is a political opinion, not a legal opinion," said Andrew Miller, the activist who first sounded the rallying cry for a gay community meeting. Miller argued that the attorney general was providing political cover for elected officials not willing to take the heat for bringing same-sex marriage to New York.
As Spitzer faced reporters on Wednesday, the city’s corporation counsel, Michael Cardozo, also issued an advisory opinion, reaching the same conclusion about the current statute, but offering none of the upside possibilities that the attorney general had offered same-sex marriage advocates.
One official who apparently does not share Spitzer and Cardozo’s views on the statute is Morgenthau, the New York County prosecutor. According to Chelsea Assemblymember Richard Gottfried, who sponsors a same-sex marriage bill in Albany, Morgenthau told him Thursday in a telephone conversation that he did not share the opinion that New York statute bans gay marriage. Morgenthau added that he would not prosecute any alleged criminal offense related to issuing licenses for same-sex marriages performed in Manhattan.
"If for example the city clerk were to issue a marriage license, and someone were to say that was a criminal act, [Morgenthau] would not prosecute him," Gottfried told Gay City News in a telephone interview. "But our conversation was fairly brief and did not get into how it might arise in a criminal context."
A source who has had conversations with Morgenthau's office about the same-sex marriage issue told Gay City News that officials considering solemnizing marriages should not make the assumption that the DA would not prosecute such actions if undertaken without the couple having a license.
Gottfried called Morgenthau "one of New York’s most distinguished and thoughtful lawyers," but conceded that the city clerk or the corporation counsel would view his opinion "primarily persuasive rather than officially considered."
Gottfried said he did not ask the DA whether he had shared his views with the city clerk, the corporation counsel, or the mayor.
Barbara Thompson, a spokesperson for Morgenthau, said his office does not comment on private conversations the prosecutor had or did not have with elected officials and others.
Patrick Synmoie, counsel to City Clerk Victor Robles, said he was unaware of any conversation between Morgenthau and the city clerk.
Calls to the mayor’s office and the corporation counsel were not returned as of press time.
Steven Knight and Jeffrey Becker
Rabbi Nancy H. Wienstein and Judith Tax
Elizabeth and Kathryn Jay.
©2004 Community News Group