Gay Marriage

[ZippyTheChimp]

Those Supreme Court dimwits misread me again!

[Kris]

March 3, 2004

Police Charge New Paltz Mayor for Marrying Same-Sex Couples

By THOMAS J. LUECK

Four days after he thrust his Ulster County village into the national debate over same-sex marriage by conducting ceremonies for 25 gay couples, the mayor of New Paltz was charged yesterday with solemnizing a marriage without a license, a misdemeanor under state law.

The charges against the mayor, Jason West, brought by Ulster County District Attorney Donald A. Williams, came as questions over the legality of gay marriages resonated across the state.

In Albany, Gov. George E. Pataki said he was awaiting a legal opinion from Attorney General Eliot Spitzer, but reiterated a strong personal conviction against gay marriage.

And in Ithaca, where Mayor Carolyn K. Peterson laid out a municipal strategy on Monday to provoke a court ruling on whether state law allows gay marriage, the city clerk was preparing yesterday to forward the marriage license applications of five gay couples to the New York State Department of Health. Mayor Peterson, who supports the rights of gay people to marry, has said Ithaca will offer legal help to gay couples who go to court if their marriage license applications are denied.

In New Paltz, Mayor West was issued a summons at the village hall by the New Paltz town police chief, Raymond K. Zappone. The mayor was charged with 19 criminal counts, fewer than the number of ceremonies he performed on Friday, because the police on the scene provided eyewitness accounts of only 19 ceremonies.

"This is the same as any criminal case, except a person in public office has taken a solemn oath to obey the law," Mr. Williams said. A jail term is not being contemplated, he said.

Mayor West could be fined up to $500 and sentenced to up to a year in jail for each count. He said last night that he intended to plead not guilty. "I have broken no laws, and I intend to proceed with ceremonies on Saturday unless I am advised otherwise by my attorneys," he said.

In an interview, Mayor West said he had hoped Mr. Williams would "stand with me in favor of civil rights and our state constitution."

Governor Pataki, who emerged with Joseph L. Bruno, the Republican majority leader of the State Senate, and Sheldon Silver, the Democratic speaker of the State Assembly, from a meeting called to discussed such issues as tax collections and education financing, faced reporters in a State Capitol hallway who were determined to ask about same-sex marriage.

Mr. Pataki said he would wait for an opinion from Mr. Spitzer before taking any legal action. But he said he believed state law now defines marriage as a union of husband and wife.

"My personal view, just stepping back from a detailed legal analysis, is that the law is clear, the law is being broken, and that it is appropriate to seek an injunction" against more same-sex marriages in the state, Mr. Pataki said. "The attorney general has indicated he does not agree with that," he said. "We are waiting for his analysis."

Mr. Bruno opposes same-sex marriage, and Mr. Silver says it is an issue that must be resolved in court.

Al Baker, in Albany, and Thomas Crampton, in New Paltz, contributed reporting for this article.

Copyright 2004 The New York Times Company

[Kris]

Bush's Gay Marriage Ban

by Richard Goldstein

It Can Happen Here

Is New York's Marriage Law Gender Neutral? The City Council Speaker Says Yes. The Mayor Says No. It's Time for the Rest of us to March.

March 3 - 9, 2004

Gay-marriage activists are mobilizing for a march on City Hall—and possibly the marriage bureau—on Thurs- day. For a change, they won't be squaring off against an evil empire. No one in a position to influence the issue thinks gay couples shouldn't be allowed to wed. But no one wants to be the person to make it happen. And the complexity of city regulations gives everyone plenty of cover.

The City Clerk, Victor Robles, says he can't issue same-sex marriage licenses without the mayor's approval. But a mayoral spokesperson insists that Robles "acts independently."

The mayor, Michael Bloomberg, doesn't "think it is my business who you marry." But he won't tell the clerk to issue licenses to same-sex couples because he believes state law forbids it.

The City Council Speaker, Gifford Miller, begs to differ. He contends that New York's marriage law is gender neutral, and therefore the mayor should let the weddings begin. Of course, the council appoints the City Clerk, so the Speaker might be expected to sway Robles. But Miller says he lacks the power to direct him.

Still, the council isn't sitting idly by. It is weighing several symbolic resolutions on gay marriage: one condemning the proposed federal amendment and another urging the state legislature to reform the marriage statute. What about a more concrete resolution urging the City Clerk to act? Marriage advocates have pushed for such a statement, but it wasn't mentioned by Miller until this reporter started asking questions.

In the council, considering and acting are very different things, especially when it comes to gay rights. A bill requiring large city contractors to offer their workers domestic-partner health coverage has languished for about 18 months, despite the fact that it now enjoys a veto-proof majority. A vote on the measure planned for last month has been postponed until April. Unless they are pushed, most council members are content to let the process unfold at a leisurely pace. And no one has publicly prodded these pols to act on marriage until now.

In fact, national marriage-advocacy groups, concerned about the reaction of New York courts, urged sympathetic officials to lay back. And some local gay officials have been too loyal to hold their leaders' feet to the fire. But after recent events in San Francisco and New Paltz, every "honorable" in New York politics is being forced to take a stand.

At a press conference on the steps of City Hall last Sunday, Miller told the cheering crowd, "This is simply too important an issue to be scared off by politics." But the Speaker surely knows that politics is at the heart of what keeps New Yorkers of the same sex from wedding here and now.

If gays want to marry, says the mayor's spokesperson, they shouldn't hound the city clerk; they should organize to change the law. But it would be easier to move the state capital to Woodstock than to get the state legislature to reform the marriage statute.

Senate Majority Leader Joseph Bruno had to be dragged into passing a gay rights bill in 2002, and that's where he wants the issue to stop. Meanwhile in the Democrat-dominated assembly, Speaker Shelly Silver, who hasn't taken a public position on gay marriage, is reportedly appalled by the idea. As Richard Gottfried, chief sponsor of the stalled assembly marriage bill, notes, "We have a long way to go" before it reaches the floor. So much for the State Democratic Committee's declaration of support for same-sex mat-rimonial rights.

There the matter would rest, except for two bar association reports asserting that gay marriage is already legal here because the state statute makes no explicit mention of gender. What's more, the state health department, which has been giving New Paltz's mayor grief, doesn't regulate marriage licenses in the city. Says attorney Lawrence C. Moss, a key figure in the local marriage fight, "We have a right to act under current law."

In 2001, when the second bar association report appeared, the president of that organization, former Watergate prosecutor Evan A. Davis, wrote: "We hope to persuade the Attorney General to issue an opinion that the proper construction of New York's statutes permits same-sex marriage." It remains to be seen whether the bar association will send such a message to Eliot Spitzer or a letter to Robles; if it does either that will give marriage advocates a big boost.

"The bar association is often the harbinger for institutional support," says Brad Hoylman, president of Gay and Lesbian Independent Democrats, a political club. "They were very useful on AIDS discrimination and adoption rights." Indeed, the state's high court agreed with the bar association's positions, ruling that that a gay or lesbian couple can adopt a child together and that a tenant cannot be evicted when his or her partner dies. These decisions implicitly recognize that same-sex couples are a family.

But marriage is a far more explosive issue than adoption and tenant rights. It will affect the fortunes of every politician who takes sides. Even Michael Cardoza, the city's corporation counsel, whose legal opinion gave the mayor and the City Clerk shelter, has revised his thinking to suit the role he now plays. Cardoza was the bar association's president back in 1997 when its first marriage report was issued. He approved the report then, but now, Cardoza's spokesperson says, he has "no comment."

City politics is always a bizarre balancing act, but this stunt makes Philippe Petit's high-wire walk between the Twin Towers look easy. Every major player has a lot to gain and lose from taking a stand.

Giff Miller is a longtime supporter of gay-marriage rights, and unlike many politicians who embraced this issue when it looked like pie in the sky, he still talks the talk. But Miller's principles happen to jibe with his mayoral ambitions. Stepping out front will enable him to mine the gay community's major political resource: its willingness to give generously, and in a co- ordinated way, to sympathetic candidates. On the other hand, Miller is seen as a creature of Manhattan, and he can ill afford to narrow that image further to Chelsea and Greenwich Village. This may be the reason why, though he's willing to make a personal statement on the steps of City Hall, Miller is reluctant to put his council on the legislative line. One advocate who met with the Speaker more than a year ago says he favored an "incremental" approach at the time.

Then there's Bloomberg, whose image in the outer boroughs is the political equivalent of the Gowanus Canal. He can't afford to burn his bridges and tunnels further by front-ing for the gay community. No wonder Bloomberg has declared his intention to veto the domestic-partner benefits bill when it finally passes the City Council. He'll have a hard time welcoming the Republican Convention to New York if wedding bells ring in its sodomitic precincts. Still, Bloomberg doesn't want to alienate the gay constituency that voted for him in 2001. The result is an open-minded attitude toward gay marriage coupled with a closed-door policy.

Even Victor Robles is in a tricky spot. He can't guess who the City Council Speaker will be when his tenure comes up for renewal in 2007. Then, too, if he sticks his neck out, some reporter might revisit the 1996 Daily News report of a sexual-harassment complaint against Robles made by a male employee. (The allegation was investigated but didn't lead to legal action.) No wonder Robles's former colleagues on the council want to shield him. No wonder he wants the mayor to take the heat.

Between their vulnerability and their ambition, New York politicians are a calculating lot, and that goes for out-and-proud pols as well. Fealty to the leadership can prevent them from pushing as hard as one might like. In the state assembly, Deborah Glick is close to Speaker Silver. Neither she nor her colleague Danny O'Donnell (Rosie's brother) have made waves about gay marriage. (In fact, Glick has suggested that the courts are the proper place for this issue to be resolved.) Senator Tom Duane is much freer to act, since he's not part of the ruling Republican leadership in that chamber, and Duane is planning to hold a forum on gay marriage on March 3. In the City Council, Christine Quinn is a key Miller lieutenant, and his enthusiasm for this issue enables her to be quite active. (The other queer council members, Margarita Lopez and Phil Reed, haven't ducked the issue, but they aren't as well positioned as Quinn.) In return, she is quick to cover for Miller's shortcomings.

Of course, loyalty begets political power—and goodies for gay constituents. But it doesn't necessarily move the agenda.

As for the marriage-advocacy groups, they haven't always worked together. Empire State Pride Agenda, which was instrumental in getting George Pataki to endorse the state gay-rights bill—and remains tight with the governor—has operated independently and some claim defiantly. Sources say ESPA urged some council members not to attend the Sunday press conference with Miller, and the group is holding its own pro-marriage rally days after the planned demonstrations. Calls to ESPA went unanswered.

The fact that the gay community has no mechanism for overseeing its organizations results in clashing between the suits and the streets. Connie Ress of Marriage Equality U.S.A. has taken pains to harness the energy of militants, but many leaders on this issue seem overly concerned about the prospect of agitation. They want middle-class couples with strollers to converge on the marriage bureau; not a ragtag legion shouting, "Hey, hey, ho, ho, homophobia's got to go!"

To judge from the hundreds who attended an organizing meeting at the city's lesbian and gay center last Friday night, there's more order and less factionalism around this issue than is usually the case. Even some critics of marriage as an institution are willing to fight for that right—and the rest are staying out of sight. Marching on the halls of power has never failed this community. Let's not shrink from it now.

Demonstrators will assemble at City Hall on Thursday at 8 a.m. For further information about joining the protest, visit: www.nymarriagenow.org

www.villagevoice.com

[johnwk]

Thought the following recent decision,IN THE MATTER OF THE ESTATE OF MARSHALL G. GARDINER, Deceased, issued by THE SUPREME COURT OF THE STATE OF KANSAS, would interest some of you concerning what a “marriage” legally is.



The Court stated, "The Legislature has declared that the public policy of this state is to recognize only the traditional marriage between 'two parties who are of the opposite sex,' and all other marriages are against public policy and void," Justice Donald Allegrucci wrote. "We cannot ignore what the Legislature has declared to be the policy of this state."


In addition to what the Court stated above, a number of very important points concerning constitutional law are stated by the Court which every freedom loving American ought to study and remember:


“The fundamental rule of statutory construction is that the intent of the legislature governs. When construing a statute, words in common usage are to be given their natural and ordinary meaning.”

The understanding of “marriage” as being a union between one male and one female is the “common usage” definition of marriage from the very founding of our nation. That definition is a legally binding definition within statutory law and is required to be observed by our public servants.



“In determining legislative intent, courts are not limited to consideration of the language used in the statute but may look to the historical background of the statute, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.”

In other words, in determining the intent for which a state has involved itself in, say issuing “marriage licenses”, a review of the historical purposes for which the State has involved itself in issuing marriage licenses and the purposes sought to be accomplished, is very important in determining the intent, which is required to be followed.

The Court went on to say:

“We apply the rules of statutory construction to ascertain the legislative intent as expressed in the statute. We do not read into a statute something that does not come within the wording of the statute. We must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.

5. The legislature has declared that the public policy of this state is to recognize only the traditional marriage between two parties who are of the opposite sex.

6. The words "sex," "marriage," "male," and "female" in everyday understanding do not encompass transsexuals. The common, ordinary meaning of "persons of the opposite sex" contemplates what is commonly understood to be a biological man and a biological woman. A post-operative male-to-female transsexual does not fit the common definition of a female.

7. A traditional marriage is the legal relationship between a biological man and a biological woman for the discharge to each other and the community of the duties legally incumbent on those whose relationship is founded on the distinction of sex.”


The reason I posted the above case is simply to give the participants on this board who may be interested in an understanding of our constitutional system, a decision handed down by a Court which abides by the fundamental rules concerning constitutional law, unlike the Massachusetts Court which ignored fundamental rules concerning constitutional law and imposed its personal predilections as law…another word for tyranny. We are fast entering a stage in our society dominated by public servants who are actively engaged in anarchy.


JWK
ACRS
"As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas

[Jasonik]

Well done John....(Ashcroft?)

In this context the only defence for an inclusive definition of marriage is that the common usage is bigoted and discriminatory, much the same way the legal term "property" once included non-whites.

It's an interesting topic and I would like to see the intense debate created if President Bush's stated intent to draft and pass a constitutional ammendment is realized.

[johnwk]

Well done John....(Ashcroft?)

In this context the only defence for an inclusive definition of marriage is that the common usage is bigoted and discriminatory, much the same way the legal term "property" once included non-whites.

It's an interesting topic and I would like to see the intense debate created if President Bush's stated intent to draft and pass a constitutional ammendment is realized.

For related subject matter see: Charles Krauthammer…and sexually challenged marriages!

JWK

[Kris]

March 4, 2004

Spitzer's Opinion Mixed on Status of Gay Marriage in New York

By MARC SANTORA

ALBANY, March 3 — New York State law requires same-sex marriages that are legally performed in other states to be recognized as lawful in New York, but does not now permit such marriages to be performed in the state, Attorney General Eliot Spitzer said on Wednesday in a legal opinion.

Mr. Spitzer said the state's marriage laws, recognizing only unions between a man and a woman, raised "serious constitutional concerns" that would ultimately have to be resolved by the courts. Until the courts ruled, he said, same-sex couples could not be legally married here.

He said his opinion that the state was legally sound in withholding marriage licenses was intended to try to halt the growing push by those who are seeking to change the law by performing same-sex marriages. "One of the messages I was trying to send was: Don't do it," said Mr. Spitzer, a Democrat who is widely discussed as a possible candidate for governor in 2006.

The overall legal opinion was nonetheless hailed by gay-rights groups as "monumental," and it set the stage for gay couples in New York who have been married elsewhere to begin challenging the state to grant them the privileges of marriage.

It is also almost certain to set off a wave of lawsuits in the state, sending the issue to the courts: exactly where lawmakers, advocates and lawyers had long predicted it would be resolved.

Mr. Spitzer's opinion, unusual for both the speed with which it was produced and the intense interest it generated, capped a day in which the issue of same-sex marriages continued to roil both the state and country. The mayor of New Paltz, a village in upstate New York, vowed to defy the law, as did another upstate mayor. Protesters stood on the steps of City Hall in New York City and demanded that Mayor Michael R. Bloomberg take a stand on the issue.

New York's governor, George E. Pataki, a Republican, said in strong terms that he personally believes marriage is between a man and a woman. In the state Capitol, lawmakers held a forum on legislation to make same-sex marriages legal.

In Washington, lawmakers debated the wisdom of a constitutional amendment banning gay marriage, while advocacy groups on both sides of the issue staged news conferences. At the same time, in Portland, Ore., county officials issued dozens of licenses to gay couples after deciding that Oregon law allowed the unions.

It was only a week ago that President Bush, saying the union of a man and a woman is "the most fundamental institution of civilization," called for a constitutional amendment to ban gay marriage.

His announcement came after a Massachusetts court decision that paved the way for same-sex marriages to occur there, and after the mayor of San Francisco sought to change state law by granting licenses and performing same-sex marriages.

Mr. Spitzer was drawn into the controversy last Friday after the mayor of New Paltz, Jason West, began performing marriage ceremonies for people who did not have marriage licenses. The State Health Department has refused to grant the licenses, saying New York's law expressly forbids it.

Mr. Spitzer concurred.

"It is our view that the Legislature did not intend to authorize same-sex marriage," the opinion said. According to that reading of the law, Mr. Spitzer said, the state is right not to issue marriage licenses, and the ceremonies already performed should be voided.

The opinion, which was signed by Caitlin Halligan, the solicitor general, but released by Mr. Spitzer at a Manhattan news conference, also clearly states, "The exclusion of same-sex couples from eligibility for marriage, however, presents serious constitutional concerns."

Mr. Spitzer has built up a national reputation by pursuing high-profile cases against corporations and the securities industry. He has made it clear he personally believes that same-sex marriage should be allowed, but that in acting as attorney general, he must separate his personal beliefs from his duties as attorney general.

In the 28-page analysis, which cites dozens of court cases from Hawaii to Vermont, Mr. Spitzer struck a decidedly nuanced tone. While the opinion is not legally binding, it will certainly help frame the debate, lawmakers and advocates for gay rights said.

Many gay advocates said Mr. Spitzer's reading of the current law was not nearly as important as his finding that New York should, based on legal precedent, recognize same-sex marriages lawfully performed in other jurisdictions. In fact, before the events in New Paltz, many gay rights advocates thought this was going to be the avenue through which New York's marriage laws would be challenged.

"Today in New York, one of the most incredible steps occurred," said David Buckel, marriage project director for Lambda Legal. "New York State became the first state in the nation to clarify that same-sex marriages performed out of state will be respected here."

Mr. Buckel said there are several hundred gay couples in New York who were married legally in Canada, where such unions are allowed in two provinces.

Mr. Spitzer, in the opinion, said that "whether the domestic relations law permits same-sex marriages performed in New York has no bearing on whether New York will recognize as spouses those parties to a same-sex marriage validly performed under the law of other jurisdictions."

New York is one of 12 states that did not follow the federal government's lead and adopt a law that would expressly forbid same-sex marriages. Of the 12, it is the first whose attorney general has said his state should recognize same-sex marriages performed in other jurisdictions, advocates and aides to Mr. Spitzer said.

Dennis Poust, spokesman for the New York State Catholic Conference, vowed to ratchet up the pressure on legislators to pass a law barring recognition of same-sex marriages performed elsewhere. "We don't agree with that part of the opinion at all," he said.

Mr. Spitzer, in an interview, said the most relevant court case on the matter as far as New York was concerned is Langan v. St. Vincent's Hospital, which was decided by the New York State Supreme Court in 2003 but is still being appealed.

In that case, the court concluded that a party in a Vermont "civil union" must be treated as a "spouse" for purposes of New York's wrongful death statute.

While the debate over gay marriage at times seems like a struggle over semantics, there are substantial health, tax and other benefits involved.

Mr. Spitzer's personal support for same-sex marriages has put him at odds with Governor Pataki. Asked Wednesday about the subject before Mr. Spitzer's legal opinion was released, Mr. Pataki said: "I believe that marriage should be between a man and a woman. That's my personal opinion as well as the law of the state."

In the opinion, Mr. Spitzer relied largely on historical precedent in his argument for reading that the state's Domestic Relations Law, or D.R.L., as applied to only a man and a woman.

"While the text of D.R.L. does not expressly bar marriage of same-sex couples, the inclusion in the D.R.L. of gender-specific terms to describe parties to a marriage, as well as historical context of its enactment, indicates that the Legislature did not intend to authorize same-sex marriage," the opinion says. It notes the use of the words "husband" and "wife" as well as "bride" and "groom."

Mr. Spitzer notes that the original law was enacted in 1896, and its silence on the issue of same-sex marriage "is presumably due to the apparent lack of any practice of same-sex marriage at the time."

Even as Mr. Spitzer laid out his interpretation of the law, and the governor condemned those he deemed in violation of it, another small-town mayor said he would begin solemnizing marriages between gay couples, starting on Thursday.

Speaking before a Senate committee in Albany, Mayor John H. Shields of Nyack, a village in Rockland County, said he felt compelled to act. He likened the marriages to acts of civil disobedience by women in the suffrage movement or by blacks during the civil rights movement. "All I can say is historically I am in good company," he said.

After Mr. Shields spoke, Mayor West of New Paltz, whose actions served as a catalyst for this debate, walked into the packed hearing room and received an emotional ovation that lasted at least five minutes.

Senator Thomas K. Duane, a Democrat and the only openly gay member of the Senate, was near tears as he lauded the mayor as someone who struck a historic blow for civil rights.

On the other hand, Joseph L. Bruno, the Senate Republican majority leader, sternly rebuked Mr. West, saying: "People ought to obey the laws equally and they shouldn't pick and choose. A mayor like that who defies the law could start issuing pistol permits tomorrow."

Looking forward, Mr. Bruno said, "If the laws don't change, then anyone who performs this ceremony, here in this state, is breaking the law."


'It Is Our View That the Legislature Did Not Intend to Authorize Same-Sex Marriage'

By THE NEW YORK TIMES

Following are excerpts from an opinion released yesterday by the New York State attorney general's office about the legality of same-sex marriages under the state domestic relations law. The full text is at nytimes.com/nyregion.

Application of Statutory Provisions to Same Sex Couples

We can provide no certain guidance as to how New York courts will ultimately rule with respect to whether New York law permits or prohibits marriage by same-sex couples. Although the D.R.L. does not explicitly prohibit same-sex marriages, it is our view that the Legislature did not intend to authorize same-sex marriage. The exclusion of same-sex couples from eligibility for marriage, however, presents serious constitutional concerns

Statutory Language

While the text of the D.R.L. does not expressly bar marriage of same-sex couples, the inclusion in the D.R.L. of gender-specific terms to describe parties to a marriage, as well as the historical context of its enactment, indicates that the Legislature did not intend to authorize same-sex marriage.

The D.R.L. includes no express requirement that married persons be of the opposite sex. Nor does it declare invalid marriages between persons of the same sex; the provisions enumerating marriages that are "absolutely void" or "voidable" make no mention of same-sex marriage

Equal Protection Clause

One question is whether the D.R.L., if interpreted to prohibit same-sex marriages, comports with the equal protection clauses of the federal and New York State Constitutions. A court might treat the D.R.L. as imposing a gender-based classification. Such classifications are subject to heightened scrutiny. The courts would need to find the prohibition supported by a legitimate state interest in order to uphold it.

Several state interests might be proffered in support of a prohibition on same-sex marriage, including promoting procreation and the welfare of children, and maintaining the traditional understanding of marriage as a union between a man and a woman.

New York's Treatment of Same-Sex Relationships

New York law has recognized the legitimacy of committed same-sex relationships in numerous ways, thereby drawing into question the state's interest in maintaining the historical understanding of marriage as confined to opposite-sex partners.

Recognition of Same-Sex Unions Performed Out-of-State

In general, New York common law requires recognizing as valid a marriage, or its legal equivalent, if it was validly executed in another state, regardless of whether the union at issue would be permitted under New York's Domestic Relations Law. The only exceptions to this rule occur where recognition has been expressly prohibited by statute, or the union is abhorrent to New York's public policy. The abhorrence exception is so narrow that only marriages involving "polygamy or incest in a degree regarded generally as within the prohibition of natural law" have been deemed abhorrent by the courts.

Conclusion

Because the purpose of the marriage licensing process is to "provide a definite, well-chartered procedure for entrance into marriage, so that parties following the statutory requirements can have a fair degree of certainty in their marital status" we recommend that clerks not issue marriage licenses to same-sex couples, and officiants not solemnize the marriages of same-sex couples, until these issues are adjudicated by the courts. Finally, we note that the issue of recognizing same-sex unions from other jurisdictions presents a distinct legal question. Consistent with the holding of the only state court to have ruled on this question, New York law presumptively requires that parties to such unions must be treated as spouses for purposes of New York law.

Full Text of the Attorney General's Opinion

Copyright 2004 The New York Times Company

[Kris]

March 4, 2004

Despite Charges, Mayor Pledges to Keep Marrying Gay Couples

By THOMAS CRAMPTON

NEW PALTZ, N.Y., March 3 - Shortly after being arraigned on misdemeanor charges on Wednesday for the same-sex marriage ceremonies he performed in this village last week, Mayor Jason West defiantly said he would continue solemnizing such marriages. Standing before Village Hall in the same parking lot where he married 25 gay couples on Friday, Mr. West, 26, called gay marriage the greatest civil rights issue of his generation.

"The issue before us today is one of civil rights, human rights," Mr. West told a crowd of supporters. "Marriage is the act of making public what is written in two people's hearts."

Earlier, as he walked from Village Hall to the courthouse, a crowd that the police estimated at more than 450 held aloft placards and chanted in support. "All great leaders have gone to jail,'' read one placard with a photograph of Nelson Mandela. Others simply said "Go West!" or "Keep Your Laws Off My Vows."

Escorted into the courtroom by his father and sister as a tuba played "We Shall Overcome," Mr. West said nothing during the hearing before Judge Jonathan D. Katz until he pleaded not guilty to 19 counts of marrying couples who did not have marriage licenses.

The court appearance at 6 p.m. came amid a whirlwind day in which the mayor juggled preparations for a regular Village Board meeting with national television appearances and a drive to Albany to testify before the State Legislature.

It also came on the same day that Attorney General Eliot Spitzer's office issued an opinion recommending that local officials not issue marriage licenses to gays or solemnize gay marriages until the courts settle the matter. Officials who do so could face prosecution, the opinion said, although there is no penalty in the law for those exchanging vows.

An outpouring of support from around the country has paralyzed the Village Hall telephone system, with a team of volunteers working to clear a backlog of voice messages. One man even wrote an e-mail message saying he had contributed $300 to clear the debt that Mr. West, a housepainter, needed to pay to receive his college diploma. The vast majority of telephone messages were in favor of the mayor's actions, the volunteers said, but some members of the Village Board worried that the gay marriage issue had eclipsed important public business. "We have urgent issues in this village that the mayor must not neglect," said Robert E. Hebel, a village trustee.


Law Dept. Backs Barring Marriage Licenses for Gays; Mayor Is Pressed to Take Stand

By JENNIFER STEINHAUER

The city's Law Department told the city clerk yesterday that gay couples should be denied marriage licenses, as City Council members and gay groups increased their pressure on Mayor Michael R. Bloomberg to take a personal position on same-sex marriages.

Mr. Bloomberg, a Republican who has already expressed his opposition to a constitutional amendment to ban gay marriage, has refused since he ran for mayor to say whether he supports the idea of same-sex marriages.

During a news conference yesterday in Brooklyn, in which he was peppered with questions about the issue, he again declined to take a stand. "My personal views, I've always said for three years, are not something that I am going to discuss," he said.

Shortly after the news conference, the city's corporation counsel, Michael A. Cardozo, issued a 10-page legal opinion, which concluded, "It is appropriate for the city clerk to continue the current practice of declining to provide marriage licenses or perform ceremonies for same-sex couples."

In refusing to reveal his personal opinion on whether gays ought to be allowed to marry, while firmly promising to uphold current laws, Mr. Bloomberg appears to be taking the calculated political risk that saying nothing will cost him nothing.

Many people close to the mayor say they suspect he supports gay marriage - as much as he supports any type of marriage, which is to say not much. "I'm sort of on record as not being in favor of marriage, period, for myself,'' he said last year.

Further, Mr. Bloomberg has a record of supporting equal rights for gays. His company, Bloomberg L.P., was among the first media companies to provide benefits for domestic partners, and it has sponsored benefits and conferences for gay groups.

As mayor, Mr. Bloomberg has signed a law that recognizes gay marriages and civil unions that were legally sanctioned in other jurisdictions, and a law adding transgender protection to the city's human rights law. He has played host to receptions at Gracie Mansion for the gay pride parade, and he marches in the gay St. Patrick's Day parade in Queens, although some gay groups have criticized him for marching in the main parade in Manhattan, which excludes openly gay marchers.

But Mr. Bloomberg may have concluded that supporters of gay marriage who feel strongly enough to take the issue to the polls will probably vote for a Democrat next year, anyway. What is more, an expression of even mild support for gay marriage may push its proponents to press the mayor further to break the law. At the same time, Mr. Bloomberg's conservative base, wobbly as it is, would almost certainly not appreciate his actively supporting same-sex weddings.

So he has instead taken a third route: opposing a constitutional amendment that President Bush supports, but even many other Republicans reject, and hoping Council Speaker Gifford Miller, a potential rival in 2005, and others will fail to make gay marriage a wedge issue.

"There is some downside risk," said Douglas Muzzio, a professor of public affairs at Baruch College. "But I don't think he can support gay marriage. That would really put him in conflict with a sitting president who is having his convention in New York City, not to mention his conservative electoral base."

Yesterday, several council members convened on the steps of City Hall in what they said was the first of many demonstrations to press the mayor to express his opinion on the issue. Councilwoman Christine Quinn, a Democrat representing Greenwich Village and Chelsea, who helped organized the protest, said, "We're demanding Michael Bloomberg come out of the closet, and tell us his position on this issue."

Today, dozens of gay and lesbian couples are expected to descend on the city clerk's office in Manhattan to demand marriage licenses in protest of the state law prohibiting their issue.

"I think that people that want to change the marriage laws should go to Albany; that's where laws are made," Mr. Bloomberg said yesterday. "For those that want to grandstand and recommend that we break the law, I think their time would be much better spent in trying to actually effect the change that they say they want rather than just go out there for political purposes."

He said he did not expect gay marriage to become a vexing election issue. "Maybe it will be important if you want to know who is going to enforce the law," he said. "Whatever the laws are on the books, whether I personally agree or disagree with them, I will enforce the laws."

Mr. Bloomberg sighed with relief when a final question was posed: How did the mayor like filming an episode of "Law and Order" yesterday? (He did.)

Copyright 2004 The New York Times Company

[Kris]

March 5, 2004

With Polite Refusal, Same-Sex Marriage Issue Reaches City Hall

By ROBERT D. MCFADDEN

The growing fight over same-sex unions reached New York City yesterday as dozens of gay and lesbian couples seeking marriage licenses were turned away at the City Clerk's office in Manhattan and hundreds of protesters demanding same-sex marriage rights rallied outside City Hall.

The rebuffs at the marriage-license counter were not confrontational, just a genteel turning away, two by two, like suffragettes a century ago at the polling place. The protest demonstration was also peaceful, if noisy; Mayor Michael R. Bloomberg urged the supplicants to take their cause to Albany. But it was the opening salvo of New York's gay and lesbian community for equal marriage rights.

A day after the New York Attorney General, Eliot Spitzer, declared that current laws prohibited same-sex weddings, but suggested - in a kind of blueprint for gay advocates - that the courts would ultimately resolve the issue, the first constitutional challenge appeared to be taking shape in Nyack, N.Y., where a gay mayor was denied a marriage license yesterday and vowed to sue the state.

And the mayor of New Paltz, who has already solemnized the marriages of 25 gay couples and faces criminal charges of violating the 19th-century laws reserving marriage for a man and a woman, said he would perform more same-sex marriages this weekend. Supporters hailed him as a hero, but a religious-rights law firm in Florida said it would ask a court to oust him from office.

Since the wedding march for gays and lesbians began in San Francisco three weeks ago, officials in California, New Mexico and Oregon have allowed same-sex marriages, Massachusetts has signaled its approval, President Bush has called for a constitutional amendment to ban gay marriage and lawmakers, and conservative and gay-rights groups have joined a debate that has roiled the nation.

Comparing their cause to the black civil rights struggle of the 1960's and the women's movement, a coalition of gay-rights advocates and civil liberties lawyers has begun a campaign that seems destined for prominence in the presidential election race this year and has already drawn politicians at all levels into the maelstrom. Yesterday, the fight moved into New York City, and spread out upstate.

Bypassing the triumphal arch of the Municipal Building on Centre Street in downtown Manhattan, the line of three dozen gay and lesbian couples - 72 people in all - moved through a side door up to the City Clerk's office on the second floor. But instead of marriage licenses, or even applications for licenses, they received letters saying that state laws dating from 1896 prohibited same-sex marriage.

The letters, signed by City Clerk Victor L. Robles and accompanied by a hefty packet of 50 pages of legal interpretations by Attorney General Spitzer and the city corporation counsel, Michael A. Cardozo, were polite but firm.

"Thank you for visiting the Office of the City Clerk to apply for a marriage license," it said. "We are, however, unable to accept your request. New York State law does not authorize this office to grant marriage licenses to same-sex couples."

The applicants were given instructions on how to apply for domestic partnership status. The couples, some of whom had lined up as early as 6:30 a.m., two hours before the clerk's office opened, were hardly disillusioned.

"There was a glimmer of hope, but we're not living in a fantasy world," said Judith Tax, 61, a Manhattan psychotherapist, who was there with her fiancée, Rabbi Nancy Wiener, 45, a teacher at Hebrew Union College. "We're not a scary horde out to destroy the community. We want to participate."

Rabbi Wiener said she and Ms. Tax had been domestic partners for 17 years and had brought along the paperwork to prove it, 11 documents that customarily accrue in a marriage, including last wills and testaments, health care proxies and durable powers of attorney naming one another as the responsible partner in life.

Across the way, spilling over a sidewalk on the eastern perimeter of City Hall, 750 demonstrators marched in a light rain, carrying signs and chanting slogans in support of legalized gay and lesbian unions.

"Gay, straight, black or white, marriage is a civil right," they chanted.

Inside City Hall, the mayor said: "My message is simple. If you want to change the laws, don't grandstand. Go to Albany and get it done." He has a record of supporting civil rights for gays; he has signed a law that recognizes gay marriages and civil unions sanctioned in jurisdictions outside New York, and has also gone on record as opposing the constitutional amendment President Bush has proposed. But he has refused to reveal his own opinion on gay marriage, saying only that he will uphold the laws.

In Nyack, a Rockland County village of 6,500, where artists, writers and working-class people live and antiques dealers dot Main Street, Mayor John Shields, 60, a retired schoolteacher, and his partner, Bob Streams, 32, a car salesman, applied for a marriage license at the Orangetown clerk's office, as did six other gay and lesbian couples and two women whose partners were not present.

It was a friendly encounter. The Orangetown clerk, Charlotte E. Madigan, who had been alerted in advance, greeted the mayor with a smile before politely declining his request and handing him a one-sentence statement. "Based on the opinions of the NYS Attorney General and the Department of Health, I am not legally authorized as Town Clerk to issue marriage licenses to same sex couples," it said.

Smiling and shaking hands with all, Ms. Madigan repeated her performance for each couple.

"I am disappointed but not surprised by what happened here," Mr. Shields said. "I will fight this as long as my attorneys are willing." His lawyers - Norman Siegel, former executive director of the New York Civil Liberties Union, and Steven J. Hyman, said they would file suit against Orangetown next week.

Mr. Siegel said he would argue that the state's marriage law, despite using terms like "husband," "wife," "bride," and "groom," is gender-neutral, with no requirement that the partners be of opposite sex. He said he would also argue that the domestic relations law violates the State Constitution, which provides for equal protection under the law.

In New Paltz, a college town 75 miles north of Manhattan, Mayor Jason West, who solemnized the weddings of 25 same-sex couples last Friday and has been charged with 19 misdemeanors for officiating without marriage licenses, said he planned to perform ceremonies for "a dozen or two" same-sex couples this weekend. He added: "We have over 1,200 couples on our waiting list."

Janon Fisher, at City Hall, and Thomas Crampton, in Nyack and New Paltz, contributed reporting for this article.

Copyright 2004 The New York Times Company

[TLOZ Link5]

Yeesh, and now on the AOL boards right-wingers are complimenting the City for "turning away the gays." Cripes...Bloomberg upholds the law to avoid controversy and suddenly we go from being an American Teheran to Houston on the Hudson.

[ZippyTheChimp]

Is that Yews-ton or House-ton, pardner?

[TLOZ Link5]

Is that Yews-ton or House-ton, pardner?

Need I answer, or can you infer it for yourself? :roll:

[Kris]

March 6, 2004

Bloomberg Said to Want State to Legalize Same-Sex Marriages

By ROBERT D. McFADDEN

Mayor Michael R. Bloomberg, who has refused in his two years in office to disclose his personal views on gay and lesbian marriage, told 80 journalists at a lesbian and gay fund-raising dinner in Manhattan Thursday night that he favored changing state law to legalize same-sex unions, four people who were there said yesterday.

On a day when the struggle for gay and lesbian marriage rights in New York moved into the courts with the first of many anticipated lawsuits and into the streets with auto caravans and protests on Long Island, the mayor of an upstate community said he would temporarily suspend his performing of same-sex marriages and Gov. George E. Pataki vowed again to uphold the existing marriage law.

But it was Mr. Bloomberg who was caught in the day's spotlight, although reluctantly. The mayor, who has a long record of supporting civil rights for gays but has resisted voicing personal opinions that might alienate his conservative supporters, has been under intense pressure to make his views known as the campaign for gay and lesbian marriage rights has blossomed in New York in recent weeks.

But he had steadfastly resisted the entreaties until Thursday night, and many who heard him speak at a $1,000-a-plate dinner of the National Lesbian and Gay Journalists Association were surprised to hear him say he favored a change in the law.

No tape recordings were rolling, and various auditors were somewhat fuzzy trying to remember his exact words. But there appeared to be little doubt that Mr. Bloomberg, for the first time, had spoken of his carefully guarded feelings, and had done so almost casually in remarks to about 100 people, most of them working journalists, at the home of the dinner's host, Greg Morey, at 38 East First Street.

"He did say in certain terms that `I think the law should be changed,' " Eric Hegedus, vice president of the journalists association, recalled yesterday.

Pamela Strother, president of the association, remembered it all as less assertive. "My recollection is that he said something like he wished the law were different," she said. "But as soon as he said it, I knew he had finally expressed a personal view. A whole bunch of eyebrows were raised, and a couple of people clapped their hands."

Bob Witeck, the chief executive officer of Witeck-Combs Communications, a Washington-based public relations firm, said Mr. Bloomberg had been unequivocal. "Definitely, he said the law should be enforced, but that it should be changed." A New York Times critic who attended the dinner as a guest also confirmed that the mayor had said he favored changing the law.

After receiving a flurry of calls yesterday, Edward Skyler, the mayor's press secretary, summoned the City Hall press corps to his office to view a taped interview with the mayor to be aired Sunday on Channel 11. Asked to illuminate his views on gay marriage, Mr. Bloomberg said he was opposed to discrimination and said he had always thought civil unions should have the same rights as marriages.

Pressed further, he said he had "sort of gone back and forth on that."

Peppered with questions, Mr. Skyler said he had not been present for the mayor's remarks and, while noting that he had talked to Mr. Bloomberg about them, declined to detail or characterize them.

No ground rules for reporting were enumerated at the dinner, several guests said. Specifically, they said, there was no talk of going "off the record" or speaking "on background."

Beyond the mayor's acknowledgment that he favors changing the law, two people who were at the dinner quoted Mr. Bloomberg as saying he would work behind the scenes in Albany for changes in the marriage law. Others said they did not hear the remark, though no one denied that it had been made.

But gay rights strategists noted that lobbying by the mayor in Albany — or even his overt support — would be unlikely to change the law. They said that with Governor Pataki and State Senator Joseph Bruno opposed to same-sex marriage and pulling the strings in a Legislature where nothing is done without their approval, legislation to change the marriage law seems virtually out of the question.

The courts — and the court of public opinion — are the most likely venues for changes in the law, the strategists said. And those were the forums where the fight was taken yesterday.

Hours after being denied a marriage license by the New York City clerk, a gay couple filed suit in State Supreme Court in Manhattan — the first of many expected in the state in the current campaign — challenging the constitutionality of the 1896 state law that has always been interpreted as reserving marriage to a man and a woman.

"This lawsuit seeks and will win full equality in marriage for same-sex couples," said Kevin M. Cathhart, executive director of Lambda Legal Defense and Education Fund, which represents the couple, Nevin Cohen, 42, an environmental planner, and Daniel Hernandez, 46, a real estate developer. Each wore a wedding ring at a crowded news conference after the filing.

"The reason that Daniel and I are here today is really quite simple," Mr. Cohen said. "We love each other very much. We've been in a committed, strong relationship for over five years. Our friends and family recognize us as a loving couple, and getting married just seems like the natural next step for us to take."

Mr. Hernandez said that he and Mr. Cohen planned to adopt children and refused to go to California or Massachusetts to be married. "We set up a house here and a home," he said. "It's in New York that we want to get married. We don't want to go to another state or another country to be married. We want to be married right here at home."

Their suit names the city clerk, Victor L. Robles, as the defendant, but its real target was New York's domestic relations law. They charged that the statute discriminated against same-sex couples, depriving them of constitutional rights to due process and equal protection under the law.

On Long Island, meanwhile, a horn-honking caravan of 125 cars led by a blue-and-white bus carried more than 200 people, including 50 gay couples, to town clerks' offices in Babylon, Brookhaven, Islip and other communities, seeking marriage licenses. At each stop, they were turned away, as expected. But the sum of the day's rounds — part theater, part legal tactic — was hardly a defeat.

The rejections laid the groundwork for more lawsuits; reporters and television cameras trailing the caravan ensured extensive publicity, and none of the participants seemed discouraged. Indeed, there was a sense of growing momentum to a campaign that has brought the national debate over gay and lesbian rights, and especially over same-sex marriage, to New York in recent days.

"Shame! Shame!" the protesters shouted at stop after stop as the caravan of gay couples rode about, ostensibly in search of a clerk willing to issue marriage licenses. Outside town halls in Babylon and Brookhaven, protesters chanted, "Two, four, six, eight, the law shall not discriminate," and held up signs proclaiming: "Marriage is a human right, not a heterosexual privilege."

Adopting some language of the civil rights movement of the 1960's, David Kilmnick, executive director of Long Island Gay and Lesbian Youth, which organized the caravan, declared, "Just like they denied Rosa Parks of sitting in the front of the bus, we today have been denied to sit on the front of the marriage bus, but we will keep coming back week after week until we get that right."

Upstate, the mayor of New Paltz, Jason West, a 26-year-old Green Party activist who drew the national debate into New York last week by performing 25 same-sex marriages in the village parking lot, said yesterday that he would postpone a second round of gay and lesbian marriages planned for today.

Mr. West, who was charged this week with 19 misdemeanors for solemnizing unlicensed weddings, said that before proceeding he wanted to consult with Attorney General Eliot Spitzer, who handed down an advisory opinion on Wednesday that said New York's marriage law did not permit gay weddings, though he suggested that the courts would resolve the issue.

Despite Mr. West's announcement, it appeared that same-sex marriages would resume in New Paltz today. A group of local residents found several clergymen to solemnize marriages starting at noon. They would not be licensed, and such marriages would likely face challenges in state courts.

Governor Pataki said there was no doubt of it. "You cannot take the law into your own hands," the governor declared in Albany. Asked about his personal feelings on same-sex marriages, he replied: "I am comfortable with the laws in the state as they currently exist."

Copyright 2004 The New York Times Company

[Kris]

March 7, 2004

Same-Sex Marriage Blurs Lines on Both Sides of the Political Aisle

By MICHAEL SLACKMAN

Gay activists see Gov. George E. Pataki as one of the best governors in the country on issues that matter to them, even though he insists that marriage should be between only a man and a woman. That position puts the moderate Republican governor in the same camp as many conservative Republicans - and moderate Democrats - across the nation.

The state's Democratic attorney general, Eliot Spitzer, has said he favors marriage between people of the same sex, but he issued an advisory opinion saying that New York law defines marriage as between a man and a woman and that the courts are the appropriate place to resolve what he called serious constitutional concerns.

As the national firestorm over same-sex marriage works its way into local governments, Democrats and Republicans alike are being forced to face the fact that all politics is local, and that the more immediate the issue becomes, the less relevant are party labels and previous positions.

While gay and lesbian couples have seized the initiative by walking into town halls across the country seeking to be married, members of Congress, the State Legislature, the City Council, lobbyists, political strategists, advocacy groups, Mayor Michael R. Bloomberg and others have struggled to chart a course through a debate that has raised such passions that it is likened to other seminal flashpoints in contemporary American history, from the fight over abortion to the battle for civil rights.

Like the abortion debate, the very personal and deeply divisive issue of same-sex marriage falls to elected officials and the political process. Conventional wisdom held that it was an issue that worked for Republicans while undermining Democrats. Yet the speed and intensity of the issue and the furor surrounding it - fueled by President Bush's call for a constitutional amendment banning the practice - has knocked even some Republicans off their footing.

"For years, choice was the hot button that got conservatives and liberals up in arms," one adviser to a Democratic elected official said. "Could this be the new issue?"

As the debate evolves, officials in New York are mindful of the pitfalls they can face along with their colleagues nationally: Republicans say they risk looking mean-spirited; Democrats say they risk looking too liberal.

Many New York officials have tried to hide from the issue, or in many cases straddle it, doing all they can to parse their answers in such a way as to be grandly noncommittal without angering the left or the right among their constituents.

Mayor Bloomberg, who has a long record of supporting civil rights for gays but has resisted voicing personal opinions that might alienate his conservative supporters, reiterated yesterday his position that civil unions conveyed the same rights as marriages under the law, and that he opposed a constitutional amendment to ban gay marriage.

But, speaking to reporters in Rockaway before marching in the 29th annual Queens County St. Patrick's Day parade, Mr. Bloomberg refused to be drawn out on whether he favored the legalization of gay marriage. "I've gone back and forth in my mind as to where I really stand, but I think everybody deserves to have the same rights," he said. Asked if he would go to Albany to lobby for a change in the state's marriage law, he said: "We'll see. I go to Albany a lot."

In more than two years as mayor, Mr. Bloomberg has refused to discuss his personal views on gay and lesbian marriage. But at a fund-raising dinner attended by 80 gay and lesbian journalists Thursday night, Mr. Bloomberg said for the first time publicly that he favored changing state law to legalize same-sex unions, according to four people who attended. Two people also quoted him as saying he would quietly lobby for the change in Albany.

But yesterday, as the mayor sought more neutral ground, the City Council speaker, Gifford Miller, who plans to run for mayor and was also at the parade, seemed determined to keep Mr. Bloomberg's personal views in the public arena. "I think it's terrific if the mayor has come out very clearly and said that he's for same-sex marriages," he said. "I hope that is his position, and I hope that he'll stick to it."

The issue broke so suddenly, and with such ferocity, nationally and then again in New York, that many people were caught short. That was true not only of elected officials, but of the organizations and individuals pushing for gay rights, including the state's top gay advocacy group, the Empire State Pride Agenda, which has not criticized Mr. Pataki for his position.

Since its creation in 1990, the group has evolved into an effective lobbying organization that works well with Democrats and Republicans. It even hired the lobbying firm of a former state Republican Party chairman, William D. Powers, in 2002, the year when the Republican-dominated State Senate passed, and Governor Pataki signed, a gay rights bill that the Assembly had passed every year for more than a decade.

The group is now trying to calm both its constituents, who want a gay marriage law passed, and legislators, who either oppose the idea or do not want to take a formal position on it right now.

In New York, the Assembly has never voted on a gay marriage bill, and while such a bill would have no chance of passing the Republican-controlled Senate, the Assembly has often passed so-called one-house bills to make statements.

But not this time. In fact, the Assembly's only openly gay member, Deborah Glick, says not only that is she unsure about such a bill making it through the Assembly - where Democrats outnumber Republicans 102 to 47 - but that she isn't sure there are enough votes to block a bill that would outlaw same-sex marriages in New York.

"Things are moving very fast," Ms. Glick said. "It's a totally grass-roots, energized movement that to me is something I haven't seen since the late 60's and early 70's." But she added, "Legislative bodies tend to be reactive, and advances in law come as a reflection of how people live their lives, not the reverse."

In general, the issue is more problematic for New York's Democrats. One Democratic political consultant who works for an elected official said that this was an issue that drew an impassioned response from people on the right - who oppose gay marriage - but not quite as impassioned a response from those on the left.

At the same time, Democrats count gays and lesbians as part of their political base. But political strategists said that increasingly, gays and lesbians were voting based on issues and not on party affiliations - thus the growing alliance, for example, between the Pride Agenda and Mr. Pataki. "It is a very important community, particularly for Democrats," said Bill de Blasio, a political strategist and Democratic city councilman from Brooklyn. "It is an extremely crucial part of any winning coalition."

The importance of the gay and lesbian vote in Democratic circles may well be gauged by the actions of two political leaders, both with their sights on higher office. Mr. Miller, has called on Mayor Bloomberg to order the city clerk to issue marriage licenses to same-sex couples, a position that political strategists said could help him in a Democratic primary but prove more problematic in a general election.

The second figure is Mr. Spitzer, who is expected to run for governor. Mr. Spitzer has long held the position that gays and lesbians should have the right to marry, but his legal opinion last week surprised everyone by focusing not just on what the state's law says about same-sex marriage, but on what it says about same-sex marriages performed in other states. Mr. Spitzer said the law required New York to recognize marriages performed legally outside the state - a decision hailed by gay rights activists, and one that would certainly help Mr. Spitzer should he find himself in a primary, many strategists said.

New York Republicans have a different problem altogether. The state has three registered Democrats for every registered Republican (the ratio is five to one in New York City). New York Republicans need to appear socially moderate, and indeed often are on such issues as abortion.

While Republican strategists say that they can do fine in New York by staking a position that defines marriage as between a man and a woman, they have also said that Mr. Bush's call for a constitutional amendment threatens to make all Republicans appear intolerant.

And in general, Democrats, no matter what their position, get more leeway on the issue than Republicans. Senator Charles E. Schumer, for example, voted in favor of the so-called Defense of Marriage Act in 1996, but recently won praise from advocates of same-sex marriage for coming out strongly against Mr. Bush's proposed amendment.

"He can say that he, like the country, has learned a lot in the last several years," said Evan Wolfson, the executive of Freedom to Marry, a New York-based coalition. "It's never wrong to take a fresh look at a civil rights question."

Copyright 2004 The New York Times Company

[Kris]

March 7, 2004

The Road to Gay Marriage

When Massachusetts' highest court ruled that gays have a right to marry, it opened a floodgate. From San Francisco to New Paltz, N.Y., thousands of gay couples have wed, and the movement shows no sign of slowing. There has been opposition, from the White House down, but support has come from across the nation and the political spectrum. Arnold Schwarzenegger, the Republican governor of the most populous state, said it would be "fine" with him if California allowed gay marriage. The student newspaper at Baylor, the world's largest Baptist university, ran a pro-gay-marriage editorial.

At an anti-gay-marriage meeting in Washington last week, Senator Bill Frist, the majority leader, warned that the "wildfire" of same-sex marriages will spread unless opponents mobilize. But even if they do, it is unlikely gay marriage can or will be halted. Opponents are pinning their hopes on a federal constitutional amendment, but even many Americans who are skittish about gay marriage do not want to enshrine intolerance as one of the nation's fundamental principles. The founders made it extremely hard to amend the Constitution, and it is unlikely this effort will succeed.

With allies in the White House and both houses of Congress, gay marriage opponents want the issue decided in Washington. But it appears we are embarking on 50 national conversations, not one. Following the lead of Vermont, which has civil unions, and Massachusetts, other states will weigh what rights to accord same-sex couples, and how to treat marriages and unions from other states. When the federal government does act, it is likely that, as with the Supreme Court's 1967 ruling on interracial marriage, it will be to lift up those states that failed to give all their citizens equal rights.

The idea of marriage between two people of the same sex is still very new, and for some unsettling, but we have been down this road before. This debate follows the same narrative arc as women's liberation, racial integration, disability rights and every other march of marginalized Americans into the mainstream. Same-sex marriage seems destined to have the same trajectory: from being too outlandish to be taken seriously, to being branded offensive and lawless, to eventual acceptance.

The Flood of Gay Marriages

The television images from San Francisco brought gay marriage into America's living rooms in a way no court decision could. Mayor Gavin Newsom's critics called his actions lawless, but the law was, and still is, murky. When California's attorney general asked the State Supreme Court to address same-sex marriage, it declined to stop the city from performing the ceremonies right away, or to invalidate those already performed. When New Paltz's mayor began performing same-sex marriages, New York law seemed similarly uncertain.

The rebellious mayors have so far acted honorably. Testing the law is a civil rights tradition: Jim Crow laws were undone by blacks who refused to obey them. Visible protests of questionable laws can, as the Rev. Dr. Martin Luther King Jr. wrote in "Letter From Birmingham Jail," "dramatize" an issue so "it can no longer be ignored." The mayors have succeeded in dramatizing the issue. But for them to defy court orders requires a far greater crisis than is present here. If courts direct officials not to perform gay marriages, they should not.

The Role of `Activist Judges'

Opponents of gay marriage have tried to place all of the blame for recent events on "activist judges." Senator John Cornyn, a Texas Republican, has called for a Congressional investigation of "judicial invalidation of traditional marriage laws." The judiciary, however, is only one part of a much larger story. Gay rights and gay marriages are being driven by an array of social forces and institutions. In California, the driving force has been an elected mayor, with the support of his constituents. In that case, it is gay marriage opponents who are asking judges to step in.

To the extent that the courts do have a leading role, it is perfectly natural. Gay marriage opponents like to portray judges as alien beings, but state court judges are an integral part of state government. They were elected, or appointed by someone who was. The founders created three equal branches, and a Constitution setting out broad principles, at both the national and state levels. Courts are supposed to give life to phrases like "equal protection" and "due process." Much of the nation's progress, from integration to religious freedom, has been won just this way.

The Emerging Legal Patchwork

As more courts and legislatures take up the issue, the rules for gay civil unions and marriages will most likely vary considerably across the nation. More states can be expected to follow Vermont's lead and allow civil unions that carry most of the rights of marriage. Others may allow gay marriage. This is hardly unusual, since states have historically made their own marriage and divorce rules. Currently, some people, such as first cousins, can marry in some states but not others.

The last great constitutional transformation of marriage in this country, the invalidation of laws against interracial marriage, moved slowly. In 1948, California became the first state in the nation to strike down its laws against interracial marriages. It was not until 1967 that the Supreme Court held Virginia's law unconstitutional, and created a rule that applied nationally.

The Battle for Interstate Recognition

Popular attention is now on wedding ceremonies for people of the same sex, but a no less important issue is whether states will recognize gay marriages and unions performed in other states. In 1996, Congress passed the Defense of Marriage Act, which says no state can be forced to recognize gay marriages. But the law has not been tested, and it should eventually be found to violate the constitutional requirement that states respect each other's legal acts. As a practical matter, the nation is too tightly bound today for people's marriages to dissolve, and child custody arrangements to change, merely because they move to another state.

Whether or not they have to recognize other states' civil unions and gay marriages, states clearly have the option to. Whether they will is likely to be the next important chapter of the gay marriage story. Couples who are married or who have civil unions will return to their home states, or move to new ones, and seek to have their status recognized. Attorney General Eliot Spitzer of New York, in an opinion last week, strongly suggested New York's law requires it to recognize gay marriages and civil unions entered into elsewhere. At least one New York court has already reached this conclusion.

Final Destination

The controversy over same-sex weddings has obscured the remarkable transformation in opinion over civil unions. Less than 20 years ago, the United States Supreme Court enthusiastically upheld a Georgia law making gay sex a crime. Last year, the court reversed itself, and a national consensus seems to be forming that gay couples have a right to, at the least, enter into civil unions that carry the same rights as marriage. Even President Bush, who has endorsed a constitutional amendment to prohibit gay marriage, has suggested he had no problem with states' recognizing civil unions.

Civil unions, with rights similar to marriage, are a major step, but ultimately only an interim one. As both sides in the debate agree, marriage is something more than a mere bundle of legal rights. Whatever else the state is handing out when it issues a marriage license, whatever approval or endorsement it is providing, will ultimately have to be made available to all Americans equally.

To the Virginia judge who ruled that Mildred Jeter, a black woman, and Richard Loving, a white man, could not marry, the reason was self-evident. "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents," he wrote. "And but for the interference with his arrangement there would be no cause for such marriages." Calling marriage one of the "basic civil rights of man," the Supreme Court ruled in 1967 that Virginia had to let interracial couples marry. Thirty-seven years from now, the reasons for opposing gay marriage will no doubt feel just as archaic, and the right to enter into it will be just as widely accepted.

Copyright 2004 The New York Times Company