NEW YORK JUDGE MANDATES SAME-SEX MARRIAGE
By Mark Fass
New York Law Journal
Monday, February 7, 2005

A Manhattan judge has declared New York's Domestic Relations Law unconstitutional and enjoined the city clerk from denying marriage licenses to same-sex couples.

Supreme Court Justice Doris Ling-Cohan ruled Friday that the statute, by implicitly permitting only heterosexual marriage, violates the Due Process and Equal Protection clauses of the state Constitution.

Throughout her 62-page decision, Justice Ling-Cohan compared laws that prohibit same-sex marriage with laws that banned interracial ones.

"It was only less than 40 years ago that the United States Supreme Court held that anti-miscegenation statutes, adopted to prevent marriages solely on the basis of racial classification, violate the Constitution because they infringed on the freedom to
marry a person of one's choice," she wrote in Hernandez v. Robles, 103434/2004. "Similarly, this court must so hold in the context of same-sex marriages."

The decision could put New York on the same path as Massachusetts, whose highest court also found its state law unconstitutional.

Ling-Cohan stayed her opinion for 30 days to allow New York City to appeal before the injunction takes effect.

A spokesperson for the city Law Department declined to say whether the ruling will be appealed. However, two other recent Supreme Court cases had contrary holdings. Judges found the denial of marriage licenses constitutional in Shields v. Madigan, 1458/04, and Samuels v. New York State Department of Health, 1967/04.

Susan Sommer, senior counsel for Lambda Legal, which represents the five couples who brought the suit, called the decision historic.

"This is a great day for New York," she said.

The gay rights organization initiated the action in March, after the office of City Clerk Victor Robles, the named defendant in the case, declined the couples' marriage license applications.

The couples claimed the restriction of marriage to opposite-sex couples violated New York's Constitution, and Ling-Cohan agreed.

The state's Due Process Clause provides, "No person shall be deprived of life, liberty or property without due process of law."

Under both the state and federal constitutions, the right to liberty has been found to extend to protect marriage and family relationships, Ling-Cohan wrote, citing 13 New York and U.S. Supreme Court cases.
 
"[T]he right to marry 'is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference,'" she wrote, quoting Goodridge v. Department of Public Health, 440 Mass 309.

The state must demonstrate a compelling interest to infringe on fundamental rights, and no such interest existed here, Ling-Cohan ruled.

The city posited two compelling interests, both of which Ling-Cohan discounted.

First, the city argued that maintaining the "traditional institution of marriage" supported the clerk's decision to deny marriage licenses to the same-sex couples.

Ling-Cohan found that, among other things, "'preserving the institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples," citing Lawrence v. Texas, 539 US 558.

"Rote reliance on historical exclusion as a justification improperly forecloses constitutional analysis and would have served to justify slavery, anti-miscegenation laws and segregation," she wrote later in the opinion.

The city also argued that denying the licenses ensured consistency with federal law and other states, noting that the Federal Defense of Marriage Act provides that, among other things, "the word 'marriage' means only a legal union between one man and one woman."

Ling-Cohan held that a desire for uniformity did not rise to the status of a compelling interest.

"It would be 'irrational and perverse' to deny such New York resident couples and their children the protections of marriage that they would enjoy under the laws of New York, on the ground that they will not have those protections under the laws of other States,
or under those of the United States," she wrote, citing U.S. Supreme Court Justice John Paul Stevens' concurring opinion in Carey v. Population Services Intl., 431 US 678.

POSSIBLE REMEDIES

The Manhattan judge also found that the denial of the marriage licenses to the five couples violated their equal protection rights.

"The exclusion of plaintiffs from entering into civil marriage indisputably discriminates against them on the basis of sexual orientation," Justice Ling-Cohan held.

Having found the Domestic Relations Law unconstitutional, the judge evaluated possible remedies.

Because "it is utterly inconceivable to this Court that the Legislature would have rejected the entire marriage provisions of the DRL," the judge sought to interpret the law's language in a way that cured it of its constitutional defect.

She therefore ordered the gender-specific words "husband," "wife," "groom" and "bride" to be construed to mean "spouse," and for all personal pronouns in the law's relevant sections to apply equally to men and women.

Sommer of Lambda Legal acknowledged that the decision lacks precedential power unless it is appealed and upheld. She said she is in no hurry for the city to appeal.

"I want families to be able to get married," she said.