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New York Court Ruling’s Aftermath

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The decision by the New York Court of Appeals, the state’s highest, denying same-sex couples the right to marry was startling in the speed at which it was arrived at (36 days after it was argued in Albany) and devastating in its rejection of evolving norms of equality and of social science research about the strength of gay parenting. Beyond the rejection and the attendant rhetoric, however, there are a wide variety of political, legal, and practical implications gay and lesbian couples should bear in mind.

The Downside

No Right to Marry in New York State: Same-sex couples have been found to have no right to marry under New York State’s Constitution. The court made no effort to provide for any legal protections for gay and lesbian couples, as the Vermont did in its ruling in 1999 that led to enactment of that state’s pioneering civil union bill the following year.

New York Courts Are Hostile: Make no mistake—the majority opinions were harshly negative both toward the fundamental rights of gay people and the evidence now widely accepted—most recently in late June by the Arkansas Supreme Court—that gay and lesbian parents do as well as any parents in raising and nurturing children. The Court of Appeals judges serve for 14-year terms, so the Court of Appeals will most likely have a right-wing majority until 2014 thanks to the appointments of Republican Governor George Pataki.

The Legislature Is Far From Supportive: The only way to win marriage rights in New York now is through the state Legislature. At present, not even the Democratic-controlled Assembly—with a whopping 66-seat advantage over the GOP out of 151 seats—has allowed a floor vote on marriage equality. In that chamber, 22 of 150 members are on the record supporting gay marriage, but nine have signed on to a state Defense of Marriage Bill to ban it. In the Republican-controlled Senate, nine favor same-sex marriage and 20 are DOMA sponsors.

The Door on Going to Massachusetts Now Slammed Shut: The high court in the Bay State earlier this year generally upheld the ban on same-sex marriage by out-of-state residents, but held open the possibility that those from states without explicit policies against gay marriage—at that time, including New York—could legally marry there. With the New York court ruling, that possibility evaporated. Only the handful of New York couples who married there before this month’s decision here have any chance of gaining validation for their marriage, unless New York changes its law.

Anti-Gay Discrimination Can Now Be Justified If “Rational:” The court decision was not just hostile to gay marriage rights, it said that the Legislature can discriminate on the basis of sexual orientation in law if there is a “rational basis,” a very low standard which basically allows the state to argue, “Hey, it made sense to us.” The state Legislature in 2002, due to the efforts of the Empire State Pride Agenda, banned discrimination on the basis of sexual orientation in jobs, housing, credit, and public accommodations, but other due process and equal protection rights may be at risk. Alphonso David, a staff attorney with Lambda Legal, however, said his group will not hesitate to bring cases on behalf of “same-sex couples or gay citizens” seeking their rights.

The Upside:

Domestic Partner Rights Still In Force: New York City and other municipalities and counties in the state continue to offer the right to register as same-sex partners, generally entitling government employees to equal benefits for their domestic partners. New York City also forbids discrimination on the basis of “partnership status.” Gay domestic partners also have some rights under New York State law. They are entitled to second-parent adoptions, so both members of the couple are legal parents, and can inherit tenancy in rent-stabilized housing. Survivors of those who died on 9/11 are entitled to equal benefits. The Empire State Pride Agenda has achieved these incremental rights in Albany: domestic partners can take life insurance out on each other, have control of the remains of deceased partners, visit each other in hospitals and nursing homes with the same rights as spouses, and keep unemployment benefits when a partner moves out of state. But there is no statewide domestic partner registry. The full list is at http://www.prideagenda.org/briefingpackets/families/steps.html.

Private Benefits Unaffected: State and local law cannot force private companies to provide benefits, but many, including a majority of the Fortune 500, do. The court ruling does not affect these private plans other than the fact that they are still subject to state tax just as they are taxed federally because of the 1996 Defense of Marriage Act—unlike most such benefits given to legal opposite-sex couples.

Canadian Marriage Still An Option: Gay couples who did or will marry in Canada are still entitled to legal recognition in New York State under the principle of comity, spelled out in an advisory opinion by Attorney General Eliot Spitzer recognized by State Comptroller Alan Hevesi and Mayor Michael Bloomberg for employee pension plan purposes. New York recognizes legal marriages it would not sanction here, such as common law marriages, as long as the unions are not “abhorrent” to the state. Polygamy, for example, is deemed abhorrent to New York, but neither the Legislature nor the high court has labeled gay nuptials that way. However, the state tax department has balked at spousal tax preferences for benefits accorded to gay partners under Hevesi and Bloomberg’s pension policy, and Lambda Legal is awaiting a decision from a Nassau County judge on whether a male couple joined in a Vermont civil union is entitled to the same retiree health benefits that married couples are.

DOMA Still Dead: There is no serious effort to pass a Defense of Marriage Act in Albany, no less a constitutional amendment against same-sex marriage. Assembly Speaker Sheldon Silver has given assurances that his house will not take one up.

Marriage Action Still Awaited In Other States: The high courts of New Jersey and Washington, both more liberal than New York’s have already heard same-sex marriage cases and decisions are pending. The Massachusetts bar on out-of-state gay marriages would not apply in those states, so Hoboken could spawn a cottage industry in trans-Hudson gay weddings. James Esseks of the American Civil Liberties Union said that the New York decision is not causing his group to pull back from pursuing rulings on the issue in California and Maryland.

The Campaign Ahead

Imperfect Political Leaders: The state’s two most prominent supporters of same-sex marriage—Attorney General Eliot Spitzer and Bloomberg—led the successful court fight against the marriage lawsuits. Spitzer promises to introduce a marriage equality bill if elected governor, and Bloomberg has pledged to fight for it. How much a priority it will be for either remains unclear. This week, Spitzer told the Daily News that gay marriage would not be a top “priority.” While Hevesi, City Comptroller William Thompson, Public Advocate Betsy Gotbaum, and all the Democratic attorney general candidates are on board, both U.S. senators—Hillary Rodham Clinton and Charles Schumer—oppose marriage equality.

Quinn Will Be Key: Out lesbian City Council Speaker Christine Quinn has pledged to work with Bloomberg and Spitzer to pass a marriage equality bill, taking the lead from community leaders. There is a resolution in the Council to support marriage equality that Quinn acknowledges does not yet have the votes to pass. She has pledged, however, to move forward on a more comprehensive domestic partners law for the city.

Empire State Pride Agenda: The group’s executive director, Alan Van Capelle, last week said a marriage bill could be passed in as little as two years. Six hundred attended the group’s May lobby day in Albany, but there are still only a handful of marriage sponsors in the Legislature. Nor has the Pride Agenda yet articulated a firm policy making gay marriage support a litmus test for its endorsement. Some prominent labor leaders recently joined the effort, but are unlikely to punish an otherwise pro-union candidate over the marriage issue. ESPA has a long list of religious supporters, but Catholic priests and bishops, fundamentalist ministers, and Orthodox Jews remain elusive.

The Grassroots: Marriage Equality/ New York is the most prominent volunteer group working on the issue, responsible for getting more than 500 to march across the Brooklyn Bridge in heavy rain for the cause in early June. Their regular meetings attract roughly 20 to 30 people and active participation from some of the gay Democratic clubs and the Metropolitan Community Church. No group has yet called for a mass community meeting for democratic input into the process of developing a strategy going forward, though the Pride Agenda was able to turn out thousands at rallies across the state to protest the court decision last Thursday evening. For more information, visit marriageequalityny.org.

Strategy Unsettled: There is division on the best way to move forward in Albany. Out gay Senator Tom Duane, in the Democratic minority, is the chief sponsor of the Equal Marriage Bill, but, unless the Republicans lose their majority, he will need a GOP senator to move the bill. Assemblyman Dick Gottfried is lead sponsor in his house and while he promises hearings next year, his Democratic leader, Speaker Sheldon Silver, has committed to do no more than bring it up in his majority conference, which has never discussed the issue. Out Assemblymembers Deborah Glick and Daniel O’Donnell are sponsors of a bill—also going nowhere—that would get the government out of the marriage business and provide civil unions to both gay and straight couples equally. O’Donnell, a plaintiff in one of the marriage cases, has said that many legislative paths to win marriage equality have to be considered and debated in the coming months.

ESPA’s Van Capelle said a consensus strategy would be forged by January 1.

Keeping Track: The Pride Agenda will soon publish a Web tally of where legislators stand on the marriage issue at prideagenda.org. A list has already been developed by Daily News reporter Ben Smith, ironically the son of the judge who wrote the anti-gay opinion, Robert S. Smith. The tallies can be accessed at http://scratchpad.wikia.com/wiki/SenateOnMarriage

http://scratchpad.wikia.com/wiki/AssemblyOnMarriage.

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Updated 5:17 pm, July 20, 2018
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