News Briefs

New York Bar Endorses Equal Rights for Same-Sex Couples

The New York State Bar Association adopted a resolution in early April that endorses full equal protection rights for homosexual couples. By a vote of 120 to 40, the House of Delegates voted to recommend that the state legislature redress “discrimination” against homosexual couples by recognizing some form of legal partnership. However, the resolution does not specifically endorse same-sex marriage; and in fact, a proposal in favor of same-sex marriage lost by a vote of 82 to 86.

“We support equal rights, equal treatment for same-sex couples,” said Peter J.W. Sherwin (Proskauer Rose, New York), one of the Delegates. “We did not reject marriage as a way to do that. All we said is that the Legislature can also and should also consider civil union and domestic partnership. The State Bar is saying one of the ways, and the best way if you look at the resolution, is marriage.”

The Massachusetts Bar is the only statewide Bar association that has taken a stronger stand on same-sex marriage, through an unequivocal endorsement.

New York's resolution is considered significant because the state bar is the largest in the nation, and the organization is cautious about taking a stance on public policy. “It's very significant that the Bar Association approved the resolution by a large majority,” said Mariette Geldenhuys, an attorney in Ithaca and member of this newsletter's Board of Editors. “This shows that the Bar recognizes the need for remedy for our clients as a matter of urgency.”

That sense of urgency was generated by a report issued in November 2004 by a special committee appointed by New York Bar President Lorraine Power Tharp (Whiteman, Osterman & Hanna, Albany). That report detailed all of the legal issues that same-sex couples face in New York. All 12 members of the committee who wrote the report voted to support equalization of rights for same-sex couples, though they differed on how equality should be achieved. The report included several possible solutions, including the resolution that ultimately was passed by the House of Delegates.

“The report goes through, point-by-point, the ways in which homosexual couples are not protected, and it explores all the possible remedies now available, such as through contracts,” said Geldenhuys. “But it becomes clear upon reading the report that our clients' needs are not being met … and it is our duty to speak out.”

During often-impassioned debate about the resolution, several Delegates returned to the theme of duty. “Lawyers are supposed to correct injustice. That is why we have to act. This organization has to define its character,” said Norman L. Reimer Gould, Fishbein, Reimer & Gottfried, Manhattan.

But some leaders of the Bar countered that the organization should not encroach on legislators' turf. State Bar President Kenneth G. Standard, Epstein, Becker & Green (Chappaqua), summed up this viewpoint by commenting: “I think it is wrong for us to think we can substitute our judgment for the judges, for the Legislature … We are experts at being lawyers. None of us has the experience to determine what is in the best interests of all the citizens of New York.”

At press time, the Bar Association had not announced what actions it would take to share the resolution with lawmakers.

(John Caher, reporter for The New York Law Journal, a sister publication of this newsletter, contributed to this article.)

Oregon Supreme Court's Marriage Decision Sets Stage for Legislative Action on Civil Unions

On April 14, the Oregon Supreme Court ruled that 3000 same-sex marriages conducted in March 2004 in Multnomah County were unconstitutional under Oregon law, and that they are to be considered null and void. The decision is Li v. State.

While gay-rights advocates announced their disappointment with the opinion, they focused more closely on what the court did not say: that the state is prohibited from offering marriage-like benefits to non-married partners. Thus, while virtually closing the possibility for same-sex marriage in Oregon, the court's opinion is likely to propel legislative action to legalize same-sex civil unions. Legislators are now debating the Oregon Basic Fairness Act (HB 2519), which was introduced into the House in April 2005.

Oregon's voters added a same-sex marriage ban, known as Measure 36, to the state's constitution in November 2004. The Li decision referenced the constitutional amendment: “Today, marriage in Oregon — an institution once limited to opposite-sex couples only by statute — now is so limited by the State Constitution as well.”

But the court went further, ruling that the same-sex marriages were not valid even when they were performed, which was prior to passage of the amendment. The court ruled that state law, not local law, defines marriage, and the state, at the time, defined marriage as between a man and a woman.

With legal options apparently exhausted, gay-rights advocates are now turning their attention toward same-sex civil unions. Those unions have been legal in Vermont since 2000, and legalization of them in Connecticut seemed imminent as this newsletter went to press (see news brief on p. 8). “The court left the option open for the legislature to address or for a separate lawsuit seeking marriage-type benefits for same sex couples. Basic Rights Oregon and the ACLU [two plaintiffs in the lawsuit] had originally sought marriage as the only acceptable remedy in the case, but after the passage of Measure 36 suggested that civil unions would be an appropriate remedy in light of the amendment,” said Rebekah Kassell, communications director for Basic Rights Oregon.

Oregon Gov. Theodore R. Kulongoski (D) supports civil unions, and Oregon Attorney General Hardy Meyers argued to the supreme court that it should acknowledge the legality of same-sex civil unions. “The state's position from the outset was that the fundamental issue was whether or not same-sex couples were entitled to the rights and privileges of marriage, not just the institution of marriage itself,” said Kevin Neely, a spokesman for Myers, in a press conference after the decision.

The court pointedly declined to resolve that issue, stating:

” … according to plaintiffs, Measure 36 does not speak to the issue whether Article I, section 20, prohibits using gender or sexual orientation as a basis for denying the benefits of marriage. Accordingly, plaintiffs urge this court to conclude that the voters did not intend to hinder this court from fashioning a remedy in these appeals that extends such benefits to same-sex couples. However, the issue of the availability of marriage benefits to same-sex couples is not properly before us. At trial, plaintiffs did not seek access to the benefits of marriage apart from, or as an alternative to, marriage itself. The trial court therefore improperly went beyond the pleadings in fashioning the particular remedy that it chose. We do not address that topic further.”

Connecticut Nears Passage of Civil Unions Law

Connecticut is poised to become the second state in the country to grant extensive marriage-like benefits to same-sex partners through civil unions (See infra, p. 1). In April, both houses of Connecticut's legislature passed different versions of SB 963, which authorizes civil unions in the state, which now must be reconciled. Gov. M. Jodi Rehl (R) has said she will sign the legislation. If the law is enacted, Connecticut will join Vermont in legalizing civil unions. Moreover, it will be the first state to create civil unions without the pressure of a court decision.

On April 6, the Senate passed SB 963 by a vote of 27-9. On April 13, the House passed the bill by a vote of 85-63, but it added two amendments, one of which defined marriage as “between one man and one woman.” LGBT groups derided the additional definition, noting that it's already in Connecticut's code.

The Senate must now decide whether to pass the House's version of the bill. One LGBT activist in the state said, “It seems almost certain that the Senate will pass the House version of the civil unions bill 'as amended' and that the governor will sign the bill as soon as possible.”

New York Bar Endorses Equal Rights for Same-Sex Couples

The New York State Bar Association adopted a resolution in early April that endorses full equal protection rights for homosexual couples. By a vote of 120 to 40, the House of Delegates voted to recommend that the state legislature redress “discrimination” against homosexual couples by recognizing some form of legal partnership. However, the resolution does not specifically endorse same-sex marriage; and in fact, a proposal in favor of same-sex marriage lost by a vote of 82 to 86.

“We support equal rights, equal treatment for same-sex couples,” said Peter J.W. Sherwin (Proskauer Rose, New York), one of the Delegates. “We did not reject marriage as a way to do that. All we said is that the Legislature can also and should also consider civil union and domestic partnership. The State Bar is saying one of the ways, and the best way if you look at the resolution, is marriage.”

The Massachusetts Bar is the only statewide Bar association that has taken a stronger stand on same-sex marriage, through an unequivocal endorsement.

New York's resolution is considered significant because the state bar is the largest in the nation, and the organization is cautious about taking a stance on public policy. “It's very significant that the Bar Association approved the resolution by a large majority,” said Mariette Geldenhuys, an attorney in Ithaca and member of this newsletter's Board of Editors. “This shows that the Bar recognizes the need for remedy for our clients as a matter of urgency.”

That sense of urgency was generated by a report issued in November 2004 by a special committee appointed by New York Bar President Lorraine Power Tharp (Whiteman, Osterman & Hanna, Albany). That report detailed all of the legal issues that same-sex couples face in New York. All 12 members of the committee who wrote the report voted to support equalization of rights for same-sex couples, though they differed on how equality should be achieved. The report included several possible solutions, including the resolution that ultimately was passed by the House of Delegates.

“The report goes through, point-by-point, the ways in which homosexual couples are not protected, and it explores all the possible remedies now available, such as through contracts,” said Geldenhuys. “But it becomes clear upon reading the report that our clients' needs are not being met … and it is our duty to speak out.”

During often-impassioned debate about the resolution, several Delegates returned to the theme of duty. “Lawyers are supposed to correct injustice. That is why we have to act. This organization has to define its character,” said Norman L. Reimer Gould, Fishbein, Reimer & Gottfried, Manhattan.

But some leaders of the Bar countered that the organization should not encroach on legislators' turf. State Bar President Kenneth G. Standard, Epstein, Becker & Green (Chappaqua), summed up this viewpoint by commenting: “I think it is wrong for us to think we can substitute our judgment for the judges, for the Legislature … We are experts at being lawyers. None of us has the experience to determine what is in the best interests of all the citizens of New York.”

At press time, the Bar Association had not announced what actions it would take to share the resolution with lawmakers.

(John Caher, reporter for The New York Law Journal, a sister publication of this newsletter, contributed to this article.)

Oregon Supreme Court's Marriage Decision Sets Stage for Legislative Action on Civil Unions

On April 14, the Oregon Supreme Court ruled that 3000 same-sex marriages conducted in March 2004 in Multnomah County were unconstitutional under Oregon law, and that they are to be considered null and void. The decision is Li v. State.

While gay-rights advocates announced their disappointment with the opinion, they focused more closely on what the court did not say: that the state is prohibited from offering marriage-like benefits to non-married partners. Thus, while virtually closing the possibility for same-sex marriage in Oregon, the court's opinion is likely to propel legislative action to legalize same-sex civil unions. Legislators are now debating the Oregon Basic Fairness Act (HB 2519), which was introduced into the House in April 2005.

Oregon's voters added a same-sex marriage ban, known as Measure 36, to the state's constitution in November 2004. The Li decision referenced the constitutional amendment: “Today, marriage in Oregon — an institution once limited to opposite-sex couples only by statute — now is so limited by the State Constitution as well.”

But the court went further, ruling that the same-sex marriages were not valid even when they were performed, which was prior to passage of the amendment. The court ruled that state law, not local law, defines marriage, and the state, at the time, defined marriage as between a man and a woman.

With legal options apparently exhausted, gay-rights advocates are now turning their attention toward same-sex civil unions. Those unions have been legal in Vermont since 2000, and legalization of them in Connecticut seemed imminent as this newsletter went to press (see news brief on p. 8). “The court left the option open for the legislature to address or for a separate lawsuit seeking marriage-type benefits for same sex couples. Basic Rights Oregon and the ACLU [two plaintiffs in the lawsuit] had originally sought marriage as the only acceptable remedy in the case, but after the passage of Measure 36 suggested that civil unions would be an appropriate remedy in light of the amendment,” said Rebekah Kassell, communications director for Basic Rights Oregon.

Oregon Gov. Theodore R. Kulongoski (D) supports civil unions, and Oregon Attorney General Hardy Meyers argued to the supreme court that it should acknowledge the legality of same-sex civil unions. “The state's position from the outset was that the fundamental issue was whether or not same-sex couples were entitled to the rights and privileges of marriage, not just the institution of marriage itself,” said Kevin Neely, a spokesman for Myers, in a press conference after the decision.

The court pointedly declined to resolve that issue, stating:

” … according to plaintiffs, Measure 36 does not speak to the issue whether Article I, section 20, prohibits using gender or sexual orientation as a basis for denying the benefits of marriage. Accordingly, plaintiffs urge this court to conclude that the voters did not intend to hinder this court from fashioning a remedy in these appeals that extends such benefits to same-sex couples. However, the issue of the availability of marriage benefits to same-sex couples is not properly before us. At trial, plaintiffs did not seek access to the benefits of marriage apart from, or as an alternative to, marriage itself. The trial court therefore improperly went beyond the pleadings in fashioning the particular remedy that it chose. We do not address that topic further.”

Connecticut Nears Passage of Civil Unions Law

Connecticut is poised to become the second state in the country to grant extensive marriage-like benefits to same-sex partners through civil unions (See infra, p. 1). In April, both houses of Connecticut's legislature passed different versions of SB 963, which authorizes civil unions in the state, which now must be reconciled. Gov. M. Jodi Rehl (R) has said she will sign the legislation. If the law is enacted, Connecticut will join Vermont in legalizing civil unions. Moreover, it will be the first state to create civil unions without the pressure of a court decision.

On April 6, the Senate passed SB 963 by a vote of 27-9. On April 13, the House passed the bill by a vote of 85-63, but it added two amendments, one of which defined marriage as “between one man and one woman.” LGBT groups derided the additional definition, noting that it's already in Connecticut's code.

The Senate must now decide whether to pass the House's version of the bill. One LGBT activist in the state said, “It seems almost certain that the Senate will pass the House version of the civil unions bill 'as amended' and that the governor will sign the bill as soon as possible.”