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44th Street Notes

What・s Love Got to Do With It

Jun 2001

Last year, during the Vice Presidential debate, the two candidates responded at some length to a question about same sex marriage. Vice President Richard Cheney and Senator Joseph Lieberman are, at least within the context of their respective parties, traditionalists on social issues. Therefore their concurrence that same sex marriage was a topic worthy of serious discussion was widely noted.

In 1997, three committees of the Association, the Committee on Lesbian and Gay Rights, the Committee on Sex and Law and the Committee on Civil Rights, issued a report on this topic. The report concluded that same sex marriage was legal in New York under current law. It also urged that a failure to recognize same sex marriage would violate the equal protection clauses of the federal and state constitutions.

A follow-up to this report, now being issued, confirms these same conclusions taking into account events that have occurred since 1997. These events include the decision of the Vermont Supreme Court that Vermont・s marriage statutes, which do not allow same sex marriage, violate the Vermont Constitution and the passage of Civil Union legislation by the Vermont Legislature in response to that decision. Another important event is the passage in New York of hate crimes legislation that includes hate crimes based on anti-gay and anti-lesbian hostility.

At the root of any legal analysis of same sex marriage is the issue of the purpose of marriage and the purpose of the state in creating and enforcing a legal framework for marriage. Because New York・s marriage laws are gender neutral, or at worst ambiguous with respect to gender neutrality, our report contends that a sound statutory construction requires that any ambiguity be resolved in light of these two purposes.

Chief Judge Judith Kaye has noted that statutory construction is a kind of dialogue between a state・s hightest court and its legislature. In this spirit it is important that the New York State Court of Appeals has ruled that same sex couples may adopt children, a ruling that has not been disturbed by the Legislature. One of the commonly asserted functions of marriage is to permit parents to form a durable legal bond of commitment as part of building a family, and that objective is now being undercut because same sex marriages are not recognized.

More generally, the judicial analysis of the purpose of marriage should not be so narrow as to exclude other common marriage circumstances such as marriages that do not contemplate children. It may not be desirable to have a definition broad enough to facilitate the marriage of convenience, but the legal view of marriage should be reasonably inclusive. In the recent report we urge, with case law support, that whatever the motive, the purpose of marriage is the creation of a public, durable legal relationship that expresses a commitment to emotional support, financial interdependence and personal dedication to one another. The purpose of the state in recognizing marriage is to create the opportunity for such expression and to provide a framework where people can make a durable promise to support and be dedicated to one another.

A construction of New York・s marriage laws that resolved any ambiguity against same sex marriage would not be true to these two purposes. This is because the expressive needs of same sex couples and the benefits that they can achieve under a legal regime that allows them to make a durable commitment to one another are not different from the needs of, and benefits accruing to, different sex couples.

In truth, the most common motive for forming a durable legal relationship, and the one most widely celebrated, is love. It is impossible, taking a view of love that is not simply carnal, to insist that love between couples is or should be confined to couples of different sexes. The opportunity to express love in the form of the legal commitment of marriage is fundamental to our culture and many others.

The recognition that marriage is a fundamental right, a proposition that has strong case law support, has constitutional implications. The issue is whether this fundamental right can constitutionally be limited to different sex couples. Our reports make a strong argument that it cannot. This view is buttressed by the recognition in New York・s hate crimes legislation that homosexuals are subject to virulent prejudice. The constitutional argument is also buttressed by the fact that the Supreme Court has recognized that marriage is expressive. Confining that expression to a certain class of people raises a substantial First Amendment issue. The fact that the constitutional argument is strong also bears on statutory construction. Again, if there is any ambiguity in New York・s marriage statutes, that ambiguity must be resolved in a way that makes unnecessary a major constitutional decision. Where do we go from here? We hope to build support for the conclusions of our report, particularly the conclusion that same sex marriage is allowed under current New York law. This is an important civil rights issue. We hope to persuade the Attorney General to issue an opinion that the proper construction of New York・s statutes permits same sex marriage. If that fails, we will urge the Legislature to act. This is a subject that deserves our continuing attention.

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