On Friday, Justice Doris Ling-Cohan (an elected judge, one might note) of the Supreme Court of the State of New York (New York County) issued a 62-page decision holding that New York State's Domestic Relations Law ("DRL") unconstitutionally denies gay men and lesbians the right to civil marriage. In a moving and eloquent opinion, Justice Ling-Cohan acknowledged the deep parallels at work in this case, in which one of the plaintiffs, Curtis Woolbright, is the son of a couple who, in 1966, were forced to move from Texas to California because, at that late date, only California (among all of the states) permitted interracial couples to marry. In an affidavit submitted to the court, Mr. Woolbright's mother, Karen, affirmed this parallel:
"My son . . . and his beloved partner, Daniel Reyes, should have the right to get married for the same reasons that I should have had the right to marry my husband, Curtis Woolbright Sr., in the early 1960's. My husband's home state Texas, and many other states at the time, restricted us from getting married, because he was black and I am white. There was no reason to exclude us from marriage other than fear and prejudice."
Until the United States Supreme Court finally rejected anti-miscegenation laws in Loving v. Virginia, 388 U.S. 1 (1967), such laws were "upheld in case after case based on tradition rooted in perceived 'natural' law." In Loving, the Court "declared that Virginia's anti-miscegenation statute violated the fundamental right to marry and the guarantee of equal protection."
Due Process
The court began its due process analysis by observing that:
"the analysis of plaintiff's due process claim begins with the question of whether the right to marriage is a fundamental right entitled to due process protection, both as a liberty right generally and, more specifically, as a privacy right."
Citing a long line of New York and federal precedent, the court concluded that due process protections extend to the right to marry. Specifically, the court identified two protected interests in connection with the right to marry -- (1) who may enter into a marriage; and (2) the right to choose whom one marries. Justice Ling-Cohan wrote that:
"Because the exclusion of same-sex couples from eligibility for civil marriage infringes the fundamental right to choose one's spouse, such exclusion may be sustained only if it serves a compelling state interest."
In support of its refusal to issue marriage licenses to gay men and lesbians, the city argued that such refusal served two purposes -- (1) fostering the traditional institution of marriage and (2) avoiding the problems that might arise from a refusal by other jurisdictions to recognize the validity of same-sex marriages, even those which are valid where they are entered into.
Tradition (the "Fiddler on the Roof" defense)
The court considered and rejected the city's defense founded upon the argument that excluding same-sex couples from civil marriage was necessary to protect "traditional marriage", noting that:
"The phrase 'the traditional institution of marriage,' which defendant quotes from Justice O'Connor's concurring opinion in Lawrence . . . , appears to refer not to marriage as a 'traditional institution' (a formulation that would leave the nature of marriage open to new forms thereof), but rather to the traditional form of the institution of marriage --confined to opposite-sex couples. In dictum, Justice O'Connor implied that the preservation of that traditional form could be a rational reason to bar same-sex marriage. . . . Nonetheless, the three justice who dissented in Lawrence, and who were the only justices to address Justice O'Connor's parenthetical remark, pointed out that the phrase '"preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples.' . . . It is clear that moral disapproval of same-sex couples or of individual homosexuals is not a legitimate state purpose or a rational reason for depriving plaintiffs of their right to choose their spouse."
Non-recognition Of Same-Sex Marriages By Other Jurisdictions (the "we'll protect you from others' refusal to recognize your rights by refusing to acknowledge those rights in the first place" defense)
The city further argued that excluding gay men and lesbians from civil marriage is supported by the Defense of Marriage Act ("DOMA") and other States mini-DOMAs because:
"if persons of the same sex are allowed to marry in New York, such persons and their children will encounter legal difficulties and disabilities that married persons of opposite sexes do not encounter, resulting from the failure of other States and the Federal government to recognize such marriages. Defendant claims that such difficulties and disabilities may range from one spouse being ineligible for his or her same-sex spouse's social security benefits to the impossibility of enforcing a New York support order against a same-sex spouse who has moved to a State that has enacted a mini DOMA."
The court rejected this view, holding that:
"this Court finds this claimed State interest -- the protection of same-sex couples from the effects of the lack of comity -- not to be a rational, let alone a compelling, State interest."
Equal Protection
Although the plaintiffs argued, in part, that the DRL discriminated against them impermissibly on the basis of sex, the court did not rule on this point. Instead, the court held that the exclusion of gay men and lesbians from entering into civil marriage violated the plaintiffs' right to the equal protection of the law. Justice Ling-Cohan wrote that:
"The exclusion of plaintiffs from entering into civil marriage indisputably discriminates against them on the basis of sexual orientation."
Emphasis -- Civil Marriage
In concluding, the court articulated the effects and the limits of its ruling:
"the Court emphasizes that government recognition that same-sex couples may be civilly married does not impact on those married under the tenets of their individual faith, and does not require that religious institutions change their tenets, nor their definition of marriage under their faith. Moreover, such religious considerations cannot legally be the basis upon which to curtail the constitutional rights of plaintiffs." (emphasis added).
