New York, Washington and New Jersey justices simultaenously consider whether marriage is a fundamental right of all couples
For the first time in history, the highest courts in three states have taken the subject of gay marriage equality under advisement and are simultaneously considering their decisions.
On Wednesday, New York’s highest court, the Court of Appeals, heard over two hours of oral arguments in four coordinated same-sex marriage cases. As the justices begin to deliberate in Albany, their counterparts in Washington and New Jersey are also preparing what could be momentous opinions. Washington’s court heard oral arguments in March 2005, while New Jersey’s justices were briefed last February.
The New York justices peppered attorneys on both sides of the marriage cases, playing devil’s advocate with lawyers from Lambda Legal Defense, the American Civil Liberties Union, the New York Attorney General’s Office, and several others. In addition to twin suits by Lambda and the ACLU, the court was considering two other marriage cases brought by couples in Ithaca and Albany.
After all four lawsuits lost at the appellate level, the Court of Appeals gathered them together for collective review. At issue in all four is whether the state’s domestic relations law violates the plaintiffs’ rights to due process and equal protection under the state constitution.
Lambda Legal’s Susan Sommer told the court that the same-sex couples have a fundamental right to marry that is no different from others who have successfully pled their cases before the U.S. Supreme Court in the past. The Supreme Court has ruled that the fundamental right marry extends to interracial couples, to prison inmates, and to deadbeat fathers (striking a state law that prevented deadbeat dads from remarrying until they paid their debts).
Sommer stressed that the matter before the court was the “right to marry,” not the “right to marry a same-sex partner.” In the past, courts have framed the issue in this manner in order to reach the conclusion that the right in question is not fundamental, but a wide departure from American custom and law.
Sommer pointed out that a similar semantic game was played out in the fight against sodomy laws. In the 1986 case of Bowers v. Hardwick, upholding such statutes, the Court dismissed a “right to homosexual sodomy” as unworthy of discussion. Reversing that decision in Lawrence v. Texas three years ago, Justice Anthony Kennedy wrote that the Bowers court “failed to appreciate the extent of the liberty at stake.”
“To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward,” he wrote. “Just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”
Sommer was followed by Roberta Kaplan of Paul Weiss Rifkind Wharton & Garrison, acting for the ACLU. Representing the Albany plaintiffs was Terence Kindlon, while Richard Stumbar spoke for the Ithaca couples.
Rising to defend New York state’s marriage restrictions was Peter Schiff of the state attorney general’s office. Patrick Jordon represented Albany, while Ithaca did not challenge the lawsuit. In fact, the city of Ithaca helped organize the suit as a tactic to clarify marriage laws during the hectic spring of 2005.
Only six of the seven justices heard arguments. Justice Albert M. Rosenblatt, reportedly a swing vote, recused himself due to the fact that his daughter Elizabeth is involved in similar marriage litigation as a lawyer in Los Angeles. Without Rosenblatt, observers say a 3-3 tie is a possibility. Should that happen, the court will name a seventh temporary justice who will be briefed on the case and watch video of Wednesday’s arguments.
In addition to the cases under advisement, marriage suits are working their way through the courts of California, Maryland, Connecticut and Iowa. Along the way, advocates have tasted both victory and defeat.
Five lower courts have ruled in favor of same-sex couples in the current crop of litigation. In Washington, two lower court judges in two separate cases ruled that marriage is a fundamental right that may not be denied same-sex couples. Those rulings skipped intermediate review and went directly to the state supreme court as a combined case.
In Manhattan last year, Lambda’s couples came out of lower court with a win, later reversed by the state appellate court. California’s lower court ruled that the Golden State marriage laws were unconstitutional in a decision now under the scrutiny of the intermediate court. And most recently, a lower court in Maryland took the plaintiffs’ side, sending that case up to the next judicial level.
Few of the lawyers pursuing marriage equality care to speculate on the outcome of these state challenges.
The long delay by the Washington justices suggests they will issue a controversial conclusion. New Jersey has a reputation both for courage and respect for GLBT civil rights. New York is a tougher court to handicap, particularly with the loss of Rosenblatt, but it’s still reasonable to suppose that by the end of the year, Massachusetts will no longer be the only state in the nation to allow gay men and lesbians to marry.
This article appeared in the Dallas Voice print edition, May 26, 2006.