Marriage Equality – Where Are We Now?

Posted on May 10th, 2009 by Katherine Franke

Last Thursday, I participated in a panel at the New York City Bar Association on the future of marriage equality rights.  The New York Times covered the panel – here is the story:

On a Matter of Marriage in New York

By Sewell Chan


New York legal experts who support same-sex marriage gathered in a conference room at the New York City Bar on Thursday evening for a panel discussion on the effort to legalize it in the state. The discussion was wide-ranging and fast-paced, touching on the rapid legislative and judicial developments that have resulted in same-sex marriage becoming legal in five states — Massachusetts, Vermont, Connecticut, Iowa and Maine — even as the State Assembly in Albany is poised to take up the matter.

The panel — moderated by Alphonso B. David, a civil-rights lawyer who now works in the attorney general’s office — touched on an important array of historical and legal issues. (It did not include any opponents of same-sex marriage.)

In June 2006, the Court of Appeals, the state’s highest court, ruled in the case Hernandez v. Robles that the State Constitution does not guarantee a right by same-sex couples to marry, and said it was up to the Legislature to decide whether same-sex marriage should be permitted.

“Many gays and lesbians were left stunned and angry, picking up the pieces of a very long and hard-fought battle for the right to marry,” Mr. David said.

Same-Sex Marriage Cases in New York

Arthur S. Leonard, a professor at New York Law School, delivered a presentation on the legal history in the state, including two little-known but intriguing cases from the 1970s. In a Queens decision from 1971, a sailor who had married a prostitute while they were drunk — and later found the prostitute was a man, not a woman as he had believed — challenged the validity of the marriage. The court nullified the union. In the other, in Brooklyn in 1971, a woman who believed she had married a man (who turned out to have been born a woman) similarly got the marriage nullified.

In a 1984 case, the appellate department of State Supreme Court ruled that a man could not adopt his same-sex partner to create a family for legal purposes.

In a 1989 case, Braschi v. Stahl Associates, the court ruled that a same-sex couple that lived together, in a financially and emotionally interdependent relationship, could be considered a family, within the meaning of rent-control regulations, for the purposes of tenant succession rights.

“All attempts to get the Court of Appeals to expand this concept into other realms have been pretty much unsuccessful,” Professor Leonard noted.

The situation did not change much until 1993, when a divided Hawaii Supreme Court held the denial of marriage rights to same-sex couples might violate the state constitution’s equal rights provision. The ruling “sent shock waves through the gay community,” Mr. Leonard said. “The mythology quickly sprang up that if same-sex couples could marry in any one state, they could automatically demand recognition of their marriages in any other state, by virtue of the Constitution’s full faith and credit clause.”

It was a “mythology,” he said, because there wasn’t really a legal basis. The federal Defense of Marriage Act, passed in 1996, prohibited federal recognition of same-sex marriages and found that states need not recognize same-sex marriages performed elsewhere.

While the Hawaii case “caused the gay community to take up the cause with new vigor,” Professor Leonard said, public-interest litigation groups thought it premature to bring marriage cases without extensive research and preparation. Political efforts to win domestic-partnership laws had shown some success, and advocates were wary of pushing for too much, too soon.

That calculus changed, Professor Leonard said, after the United States Supreme Court struck down sodomy laws as unconstitutional, in 2003, and after Massachusetts’s highest court found that the denial of marriage rights to same-sex couples violated that state’s constitution.

Soon, local authorities like Mayor Gavin Newsom in San Francisco and Mayor Jason West in New Paltz, N.Y., were granting marriage licenses, only to be enjoined by the courts.

“A combination of events put mounting pressure on gay litigation groups, and ultimately several lawsuits were filed around the state,” Professor Leonard said.

In one lawsuit, a state judge in Manhattan, Doris Ling-Cohan, ruled in 2005 that the denial of marriage rights to same-sex couples violated the State Constitution. But other judges ruled differently, and the combined cases went up to the state’s highest court in the spring of 2006.

The Impact of Hernandez v. Robles

The result was not favorable to proponents of same-sex marriage. The ruling was 4 to 2.

Reviewing the litigation strategy in the 2006 case, Hernandez v. Robles, Roberta A. Kaplan, a lawyer for the plaintiffs in the case and a top litigator at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison, said she had spent much time “agonizing about the decision, and agonizing about what we could have done — whether we should have done anything differently.”

She said the marriage cases helped lead to progress in other areas: the ongoing push to have the Legislature legalize same-sex marriage; Gov. David A. Paterson’s 2008 executive order requiring state agencies to recognize same-sex marriages performed elsewhere; and a cultural shift in which “same-sex marriage really doesn’t seem that odd.”

Asking “what did we do wrong?” Ms. Kaplan suggested that there was not much that could have changed the outcome. “I’m not sure how much votes like this are based on pure legal analysis, as opposed to emotion and religion and culture,” she said. “The one thing, in retrospect, that I would have liked to have done is build more of a factual record.”

The majority in the Hernandez decision, Ms. Kaplan said, found that the Legislature had a rational basis in restricting the state’s decades-old Domestic Relations Law to opposite-sex couples. And the judge who wrote the majority opinion, Judge Robert S. Smith, found that it could be reasonably — if not conclusively — argued that children are better off raised by a biological mother and father, rather than by a gay or lesbian couple.

“The one thing I’ve learned is that you’ve go to keep pushing on your rights because no one gives them to you,” Ms. Kaplan said. “To keep waiting and waiting and waiting is, in my life experience, not the best strategy.”

The third panelist, Susan L. Sommer, a lawyer at Lambda Legal, who also worked on the Hernandez case, was cautiously optimistic despite the defeat.

“It could get worse,” she said. “It could get better. But we are on a steady path. We are upward bound. I think what we see is one step back, but consistently, two steps forward.”

The five states that have now legalized same-sex marriage have a combined population about 15 million, or about 5 percent of the American population, she noted.

Add in states with civil unions (New Jersey and New Hampshire), jurisdictions with comprehensive domestic partnership laws that function much like civil unions (California, the District of Columbia, Oregon and Washington), and states that provide some form of recognition to same-sex marriages performed elsewhere (New York, and to a lesser degree Rhode Island), “it means that 30 percent of our country lives in a jurisdiction that has very significant legal protection and recognition for same-sex relationships,” Ms. Sommer said.

“The map of our country, you could say, is going pink.”

Governor Paterson’s Decision

The fourth panelist, David A. Weinstein, a legal adviser in the governor’s office, called Mr. Paterson an “unequivocal and passionate proponent of marriage equality” who had “has done all he can do administratively” to recognize same-sex unions.

Responding to a February 2008 appellate decision finding that the state’s human rights law required recognition of same-sex marriages performed elsewhere, Mr. Paterson’s counsel, David Nocenti, directed state agencies in May 2008 to “review their laws, statutes and procedures to make sure that out-of-state marriages were afforded full recognition” unless prohibited by law.

The effects, Mr. Weinstein said, have been wide-ranging. The Workers’ Compensation Board has extended survivors’ death benefits to same-sex spouses. The Office of Mental Health now allows New Yorkers to seek civil commitment orders for mentally ill same-sex spouses who pose a threat to themselves or others. The Public Integrity Commission now requires same-sex spouses of certain public officials to make ethics filings.

And, in what Mr. Weinstein jokingly called his favorite benefit, the Department of Environmental Conservation permits inheritance by same-sex partners of something called the “shellfish shucking license.”

(A key exception to the state’s new policy is taxation. Mr. Weinstein said that a provision in state law requires taxpayers to file with the same status — for example, married filing jointly — used on their federal returns. Federal law prohibits the Internal Revenue Service from recognizing same-sex couples as married, and preempts state law.)

Is Marriage Always the Answer?

There were no opponents of same-sex marriage on the panel. It was left to the final participant, Katherine M. Franke, a Columbia law professor, to raise questions — supportive, yet skeptical — about the approach used by advocates.

“Is marriage the only vehicle through which comprehensive rights can be made available to a couple?” she asked.

“To the extent to which lawyers and movements are relying so heavily on a marriage-based strategy,” she continued, is there a risk of “casting a shadow of judgment” on those who choose not to marry?

Professor Franke asked whether there was a “crowding-out effect” of the singular focus on marriage, causing proponents of gay rights to stop “thinking creatively” or “innovating.”

The gay-rights “movement I first joined,” she said, was about “thinking expansively, radical alternatives that would include ranges of sexualities, ranges of ways of organizing your life.” This critique, she added, was “not to say marriage is a wrong strategy.”

Professor Franke drew a distinction between claims for same-sex marriage based on equal protection, and claims based on substantive due process.

“We won in Iowa on the basis of the equal protection argument alone,” she said. “We won in California — and then it was later overturned — but we also won in Massachusetts, on the basis of a different argument, in addition to the equal protection argument, and that is the substantive due process or dignity argument.”

“It is the dignity argument that troubles me,” she said — the notion “that there is some kind of lack of dignity, respectability, for those who live outside the institution of marriage.”

She added, “That worries me that we are making those sorts of arguments” — even if the arguments are part of an effective legal strategy.

The idea that marriage “ennobles and enriches human life,” Professor Franke said, “may be true for some — to me that rings more in the nature of a religious argument. But to cloak marriage in this kind of teleological frame that all of us as adults should hope and aspire to obtain, communicates something that I think violates the movement that I joined many, many years ago.”

Professor Franke said she was also troubled about certain arguments regarding the children of same-sex couples.

For example, during the oral arguments in the Iowa same-sex marriage case, at one point, a lawyer for the plaintiffs gestured to a little girl, the child of two plaintiffs, and said the girl had been unable to enroll in a day-care program because her parents were not married.

In that instance, “the problem with that is the day-care rule that won’t allow children to enroll if their parents aren’t married,” she said, and not the denial of marriage rights to same-sex couples with children.

Professor Franke expressed concern that “we’ve stopped working on a range of really important and creative projects” as marriage has taken on ever-greater importance among gay-rights advocates.

Marriage Is ‘Enormous, Complicated’

During the question and answer period, Professor Leonard made a comparison that drew appreciate laughter from the audience. In response to a question, he acknowledged that the institution of marriage has a different legal meaning today than 100 years ago, carrying with it rights and privileges that were unimaginable at a time when government and bureaucracy were smaller. He likened marriage, jokingly, to corporate giants: “Like G.M. or A.I.G., it is an enormous, complicated thing that no one knows what to do with but that is too big to fail.”

Available from the NYT website here


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