NYC Appeals Marriage Ruling

February 9, 2005

NEW YORK, NY— Lawyers for the city of New York filed official notice Tuesday that it is appealing last week's ruling that struck down the state's prohibition on gay marriage.

Friday judge Doris Ling-Cohan ruled that the state's ban on gay marriage is unconstitutional and that New York City's clerk may not deny a marriage license solely because a couple are of the same sex. She stayed the ruling for 30 days so the city could file its appeal.

The notice of appeal was filed with the state Supreme Court in Manhattan. It seeks to bypass the interim Appellate Division arguing that the only issue is the constitutionality of the state marriage ban and the case should move directly to the full Court of Appeals in Albany.

If the high court accepts, the case would skip the midlevel Appellate Division of state Supreme Court, speeding a final ruling by several months.

The city still must prepare and submit and file its arguments for maintaining the ban, and even though Mayor Bloomberg has state he wants the matter expedited the court appears to be in no rush to hear the case.

Chief Court of Appeals' Judge Judith Kaye will say if the court will take the case right away.

Kaye points out that the court is also being asked to hear a similar appeal in an Albany case in which same-sex marriages were ruled illegal.

I expect someday the issue will come to us, whether in this case or another case, Kaye said Tuesday.

When the court eventually hears the case, it is impossible to predict how the judicial winds will blow say most legal experts. The court is dominated by judges nominated by Gov. George Pataki but judging by other rulings that may not help the governor's position that same-sex marriage is illegal.

The Court of Appeals' two most significant rulings in the last 18 months were both major defeats for Pataki.

It effectively invalidated the death penalty, which Pataki promised to reinstate when he beat Democratic incumbent Mario Cuomo in 1994. And it ordered the state to pour billions of dollars more into New York City schools.

Over the last 25 years, the court has ruled favorably on other issues involving gay rights. In 1980, it decriminalized sodomy. Fifteen years later, it decided that the domestic partner of a parent even if gay could legally become an adoptive parent of their partner's child.

And in 1998, the court said the life partner of the occupant of a rent-controlled apartment in New York City could continue to hold that dwelling because he or she had a long-term relationship characterized by an emotional and financial commitment.

New York does by now have a very substantial track record of recognizing same-sex relationships, lawyer Jay Weiner told the Associated Press.

Weiner was the lead author of a 2001 New York City Bar Association report that concluded same-sex marriages in the state are legal.

But, Larry Moss an expert on New York marriage law said that it's difficult to handicap the court.

The result is unpredictable and anyone who tries to tell you that they know what the Court of Appeals is going to do is not being very helpful, Moss told the AP.

Moss predicted moderate state courts such as New York's will begin acknowledging that marriage is a fundamental right and that excluding same-sex couples violates their constitutional guarantees.

That's the hope of Susan Sommer, a lawyer for Lambda Legal Defense Fund which won last week's lower court ruling.

The federal Constitution is the floor, but New York has long cherished constitutional rights and individual liberties, she told the AP. This is one of the leading high courts in the country and a court that has been very protective of individual liberties and constitutional rights.