Same-Sex Conundrum Continues

Thirteen gay and lesbian couples brought suit in the state Supreme Court in Albany on April 7, alleging their state constitutional rights to equal protection, privacy and due process were violated when they were recently denied marriage licenses. The couples were joined in their suit by the American Civil Liberties Union and the New York Civil Liberties Union. One of the complainants is Assemblyman Daniel O'Donnell, brother of television and movie personality Rosie O'Donnell, who was, herself, recently married to her lesbian partner in California.

The suit, filed against the state Department of Health, claims that the couples' wedding plans were thwarted when criminal charges were brought against Mayor Jason West of New Paltz for performing same-sex marriages. West had planned to continue performing the marriages despite the couples' lack of marriage licenses, but was enjoined from doing so.

This is the third lawsuit brought against the state of New York since Mayor West moved the issue onto the state's front burner by performing his first same-sex marriage in February. The first such suit was brought by the Lambda Society on behalf of five couples who were denied marriage licenses in New York City. The second suit was filed by 10 Nyack couples (including the town's mayor and his partner) against the town clerk of Orangetown for refusing to issue licenses to the couples. With this most recent filing, there are lawsuits concerning gay marriage issues pending in three of the state's four judicial departments.

Meanwhile, Back in Massachusetts …

Meanwhile, the Attorney General of Massachusetts, Thomas F. Riley, announced last month that because of an obscure law enacted in 1913, marriage licenses will not be issued to couples from out-of-state whose home states would not allow them to be married. The court-ordered start date for Massachusetts to begin granting marriage licenses to same-sex couples is May 17. The 1913 law, originally enacted to keep mixed-race couples from the southern states from getting married in Massachusetts, was at first expected not to affect gay and lesbian couples from New York because our state has not enacted a so-called “defense of marriage” law declaring that marriage is a union of one man and one woman only. In addition, Attorney General Elliot Spitzer has said that the State of New York intended to honor as valid the marriages of New York residents married in jurisdictions that allow same-sex unions. Massachusetts' town clerks were reportedly to be given lists of the 38 states that have passed laws banning same-sex marriage, so that they could refuse licenses to couples from those states.

But, on April 15, the governor of Massachusetts, Mitt Romney, made an unusual bid to stop the commencement of same-sex marriage ceremonies in the state. After Attorney General Riley declined his request to seek a delay of the marriages, Romney proposed new emergency legislation that would allow him to appoint a special counsel to put the case against such unions before the Massachusetts Supreme Judicial Court. His aim is to stop the solemnization of same-sex marriages until the question of a constitutional amendment banning them can be put before the state's voters in 2.5 years. But the governor of Massachusetts has never been allowed to take a state issue before the courts. That is historically the province of the Office of the Attorney General. When it became apparent that Gov. Romney's proposal would likely fail, C.J. Doyle, director of the Catholic Action League of Massachusetts, petitioned the state's highest court to postpone gay marriages in the state until the planned 2006 vote on the proposed constitutional amendment. His legal standing to make this move was also suspect.

Then, on April 23, Gov. Romney announced that the 1913 law would be invoked to prohibit state licensing authorities from issuing marriage licenses to any same-sex partners who do not live in Massachusetts and whose home states' laws do not authorize same-sex marriage.

Unlike his Attorney General, who had earlier said that the 1913 law would prohibit Massachusetts marriages only to those Americans living in states with specific prohibitions against same-sex marriage, Romney's legal experts interpreted the law to prohibit marriages between citizens of any state but Massachusetts. After all, no other state has yet made gay marriage officially legal. Thus, the only non-state citizens who can marry in Massachusetts, according to Romney, will be those from places that allow gay marriage, like Ontario, Canada, or The Netherlands.

The new marriage license applications will ask couples where they reside and intend to continue to reside, and will warn out-of-state applicants that if they are not truly Massachusetts residents, their marriages will be deemed null and void. The town clerks who issue the licenses will be given discretion to determine whether a couple qualifies. But, who is a “resident” of Massachusetts? Proof of residency for obtaining a license will require evidence such as utility bills, real estate paperwork or drivers' licenses. But take, for example, the case of Cape Cod's Provincetown, or Stockbridge, in the Berkshires; these towns have large gay summer populations. Many of these part-time residents – some of whom are New York residents for the greater part of the year – own homes and have permanent addresses in these resort areas, and can presumably produce valid utility bills sent to those addresses. Weeding the homegrown locals from the transient locals may prove more difficult than it might first appear.

Other Questions

Other questions, of course, remain. Will enforcement of the 1913 law be found constitutional under the state's laws when it is, inevitably, challenged in the courts? If it's truly a neutral law, as the governor's office contends, why has it not been enforced since the days of concerns over miscegenation? If a couple say they intend to reside in Massachusetts but soon leave, will the validity of their marriages be challenged by a quasi-judicial authority, perhaps in the same manner as immigration authorities test the authenticity of marriages between U.S. and alien partners? And, will licensing clerks in Massachusetts now be required to brush up on the laws of the other 49 states in order to avoid running afoul of the 1913 law by granting marriage licenses to opposite-sex couples who would not be allowed to marry in their home states? The next few months  ' or years ' should bring some interesting developments.

Editor's Note: For daily updates on the confusing world of same-sex legislation and litigation, in New York and the other 49 states, go to http://www.ljnonline.com/ and click on the interactive map.

Thirteen gay and lesbian couples brought suit in the state Supreme Court in Albany on April 7, alleging their state constitutional rights to equal protection, privacy and due process were violated when they were recently denied marriage licenses. The couples were joined in their suit by the American Civil Liberties Union and the New York Civil Liberties Union. One of the complainants is Assemblyman Daniel O'Donnell, brother of television and movie personality Rosie O'Donnell, who was, herself, recently married to her lesbian partner in California.

The suit, filed against the state Department of Health, claims that the couples' wedding plans were thwarted when criminal charges were brought against Mayor Jason West of New Paltz for performing same-sex marriages. West had planned to continue performing the marriages despite the couples' lack of marriage licenses, but was enjoined from doing so.

This is the third lawsuit brought against the state of New York since Mayor West moved the issue onto the state's front burner by performing his first same-sex marriage in February. The first such suit was brought by the Lambda Society on behalf of five couples who were denied marriage licenses in New York City. The second suit was filed by 10 Nyack couples (including the town's mayor and his partner) against the town clerk of Orangetown for refusing to issue licenses to the couples. With this most recent filing, there are lawsuits concerning gay marriage issues pending in three of the state's four judicial departments.

Meanwhile, Back in Massachusetts …

Meanwhile, the Attorney General of Massachusetts, Thomas F. Riley, announced last month that because of an obscure law enacted in 1913, marriage licenses will not be issued to couples from out-of-state whose home states would not allow them to be married. The court-ordered start date for Massachusetts to begin granting marriage licenses to same-sex couples is May 17. The 1913 law, originally enacted to keep mixed-race couples from the southern states from getting married in Massachusetts, was at first expected not to affect gay and lesbian couples from New York because our state has not enacted a so-called “defense of marriage” law declaring that marriage is a union of one man and one woman only. In addition, Attorney General Elliot Spitzer has said that the State of New York intended to honor as valid the marriages of New York residents married in jurisdictions that allow same-sex unions. Massachusetts' town clerks were reportedly to be given lists of the 38 states that have passed laws banning same-sex marriage, so that they could refuse licenses to couples from those states.

But, on April 15, the governor of Massachusetts, Mitt Romney, made an unusual bid to stop the commencement of same-sex marriage ceremonies in the state. After Attorney General Riley declined his request to seek a delay of the marriages, Romney proposed new emergency legislation that would allow him to appoint a special counsel to put the case against such unions before the Massachusetts Supreme Judicial Court. His aim is to stop the solemnization of same-sex marriages until the question of a constitutional amendment banning them can be put before the state's voters in 2.5 years. But the governor of Massachusetts has never been allowed to take a state issue before the courts. That is historically the province of the Office of the Attorney General. When it became apparent that Gov. Romney's proposal would likely fail, C.J. Doyle, director of the Catholic Action League of Massachusetts, petitioned the state's highest court to postpone gay marriages in the state until the planned 2006 vote on the proposed constitutional amendment. His legal standing to make this move was also suspect.

Then, on April 23, Gov. Romney announced that the 1913 law would be invoked to prohibit state licensing authorities from issuing marriage licenses to any same-sex partners who do not live in Massachusetts and whose home states' laws do not authorize same-sex marriage.

Unlike his Attorney General, who had earlier said that the 1913 law would prohibit Massachusetts marriages only to those Americans living in states with specific prohibitions against same-sex marriage, Romney's legal experts interpreted the law to prohibit marriages between citizens of any state but Massachusetts. After all, no other state has yet made gay marriage officially legal. Thus, the only non-state citizens who can marry in Massachusetts, according to Romney, will be those from places that allow gay marriage, like Ontario, Canada, or The Netherlands.

The new marriage license applications will ask couples where they reside and intend to continue to reside, and will warn out-of-state applicants that if they are not truly Massachusetts residents, their marriages will be deemed null and void. The town clerks who issue the licenses will be given discretion to determine whether a couple qualifies. But, who is a “resident” of Massachusetts? Proof of residency for obtaining a license will require evidence such as utility bills, real estate paperwork or drivers' licenses. But take, for example, the case of Cape Cod's Provincetown, or Stockbridge, in the Berkshires; these towns have large gay summer populations. Many of these part-time residents – some of whom are New York residents for the greater part of the year – own homes and have permanent addresses in these resort areas, and can presumably produce valid utility bills sent to those addresses. Weeding the homegrown locals from the transient locals may prove more difficult than it might first appear.

Other Questions

Other questions, of course, remain. Will enforcement of the 1913 law be found constitutional under the state's laws when it is, inevitably, challenged in the courts? If it's truly a neutral law, as the governor's office contends, why has it not been enforced since the days of concerns over miscegenation? If a couple say they intend to reside in Massachusetts but soon leave, will the validity of their marriages be challenged by a quasi-judicial authority, perhaps in the same manner as immigration authorities test the authenticity of marriages between U.S. and alien partners? And, will licensing clerks in Massachusetts now be required to brush up on the laws of the other 49 states in order to avoid running afoul of the 1913 law by granting marriage licenses to opposite-sex couples who would not be allowed to marry in their home states? The next few months  ' or years ' should bring some interesting developments.

Editor's Note: For daily updates on the confusing world of same-sex legislation and litigation, in New York and the other 49 states, go to http://www.ljnonline.com/ and click on the interactive map.