The Rites Wrangle

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Real estate developer Daniel Hernandez, 49, and environmental studies professor Nevin Cohen, 44, share a five story walk up in Hell’s Kitchen in Manhattan. They’ve been together seven years, exchanged rings as a symbol of their commitment in 2001, and wanted that relationship recognized in the eyes of the law.

Hernandez says the couple was inspired by the actions of San Francisco Mayor Gavin Newsom, who reinterpreted local laws to issue marriage licenses in 2004, though they were later ruled invalid. “We wanted to try to do the right thing,” Hernandez says. The couple also wanted to marry because they’ve discussed adopting. “We felt that if we raised a child or children, we’d want to do it in a household that provided the legal protections and parental responsibilities that marriage brings to stabilizing a family,” he says.

So in 2004 Hernandez and Cohen tried to apply for a marriage license in New York City. “We went to City Hall, had our check in hand to apply for the license, and got a big package of information basically telling us why we couldn’t be married,” says Hernandez.

That same year they filed suit, and it was only when they became plaintiffs that they realized how much was at stake for them, Hernandez says. “The most enlightening part of the whole process was realizing the level of rights and obligations that marriage provides for people,” he says.

“It’s everything from being acknowledged and able to make decisions at a hospital at a time of crisis to dealing with tax returns to the way property gets transferred to another person. It was during that time we learned how vulnerable we were,” says Hernandez. “There are so many rights granted by the state that we don’t realize and that married people take for granted. Whether it’s straight people or same sex people, they don’t have those same protections.”

The couple was optimistic about the outcome of the lawsuit. “I believed we were going to win,” Hernandez says.

But on July 6 the New York Court of Appeals, the state’s highest court, voted 4-2 to uphold the state’s domestic relations law. Similar laws in 26 states, many called the Defense of Marriage Act or DOMA, limit marriage to a union between one man and one woman.

“I was so disappointed, and the opinion was awful to read, with the biased, discriminatory comments,” Hernandez says. “The only silver lining is that the chief justice, [Judith S. Kaye, wrote in dissent] that years from now, we’ll look back on this as a big mistake that we’ll be ashamed of.”

Attorneys arguing in support of same sex marriage admit they had a rough summer. In one month they saw four court challenges fail, most painfully in what are seen as traditionally liberal states. But the leaders of the legal campaign say they are confident their long term strategy will eventually produce the result they seek.

“Every civil rights struggle goes through ups and downs, and discrimination had a good July,” says Evan Wolfson, who is executive director of Freedom to Marry, a New York City based group whose mission is to “win marriage equality” nationwide. “You don’t judge civil rights movements by one month or one wave. They occur in a patchwork of advancements and disappointments,” he says.


Not so, says bill saunders, who is senior counsel at the Family Research Council. “I think in five years the same sex marriage movement will be moribund,” says Saunders, whose Washington, D.C. based organization has filed amicus briefs opposing same sex marriage in nearly every case addressing the issue.

“There could be some states where it exists, and there’ll be some benefits [for same sex couples] in a number of states,” he says, “but I don’t see the U.S. Supreme Court granting a right under the federal Constitution.”

In July, the highest court in both New York and Washington State held there was no right for same sex couples to marry under the state constitution. Those rulings deeply disappointed gay rights advocates because those states had been carefully chosen for their perceived receptivity to arguments in support of same sex marriage.

On the same day the New York Court of Appeals issued its opinion in Hernandez v. Robles, No. 86, the Georgia Supreme Court unanimously upheld an amendment to that state’s constitution prohibiting gay partners from marrying or claiming benefits under a civil union, Perdue v. O’Kelley, No. S06A1574. On July 14, a three judge panel of the 8th U.S. Circuit Court of Appeals at St. Louis unanimously reversed a district court ruling invalidating a provision in the Nebraska constitution that defined marriage as between a man and a woman, and that banned same sex civil unions, Citizens for Equal Protection v. Bruning, 455 F.3d 859. (In September, the full circuit rejected a request for an en banc hearing.) And the Washington Supreme Court’s 5 4 ruling, Andersen v. King County, 138 P.3d 963, hit on July 26.

In all four cases, the courts held that the state had legitimate reasons to limit the state designated status of marriage to a union of one man and one woman. And in the four other cases in which decisions have been given–including suits in Alaska, Hawaii and Connecticut (which allows civil unions for homosexuals)–Massachusetts remains the only state to find marriage a right for same sex couples.

It was the Massachusetts Supreme Court’s 4 3 decision in 2003 that brought a long simmering issue to a boil, spurring legislation, lawsuits and constitutional amendments. Now, 19 states have constitutions limiting marriage to one man and one woman, and 26 have state laws enforcing that limitation. Seven states and the District of Columbia allow some form of recognition of same sex unions.

Similar cases are pending before the highest courts in New Jersey, where an opinion on the constitutionality of the state’s ban on marriage for same sex couples is due any day, and Maryland, where the state’s supreme court recently bypassed the intermediate court and accepted review of a challenge to the state’s ban (oral argument is scheduled for December). A California appellate court is also considering whether same sex couples can be banned from marrying under that state’s constitution; the court heard oral argument in July.

Future wins for advocates of same sex marriage might help reverse the perception of the movement as “moribund.” But the July defeats have certainly made advocates less buoyant about their near term chances for success in courts across the country. For now, same sex marriage advocates are poring over all the past opinions to determine their next steps. Opponents, however, doubt there’s much advocates can do to change what they see as a trend in their favor.


The arguments same sex marriage advocates made in the four cases decided in July varied, yet they had some similarities:

• In Georgia, plaintiffs argued the constitutional amendment was unconstitutional because ballot language through which it was approved was misleading and because the provision contains multiple sections dealing with more than one subject, which violates the state constitutional provision that voters be allowed to vote on amendments separately.

• In Nebraska, plaintiffs argued the constitutional amendment violated the equal protection clause of the U.S. Constitution and was an unconstitutional bill of attainder.

• In New York, plaintiffs argued the state law limiting marriage to different sex couples was unconstitutional under the due process and equal protection clauses of the state’s constitution.

• In Washington, plaintiffs argued that the state’s DOMA was facially unconstitutional under its privileges and immunities and due process clauses, as well as under the state’s equal rights amendment.

At issue in New York and Washington were each state’s laws limiting marriage to a man and a woman. Both opinions found that review of the challenged law didn’t require heightened scrutiny because sexual orientation doesn’t involve a suspect class and there’s no “fundamental right to a same sex marriage,” as the Washington majority stated. Instead, both courts applied a rational basis test and found the legislature had established such a basis for the state’s law.

Both courts also stressed deference to the legislature. For instance, Washington Supreme Court Justice Barbara Madsen, writing for three justices who were part of the plurality opinion, stated, “While same sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it.” Writing for the majority in New York, Justice Robert S. Smith stated: “Whether such marriages should be recognized is a question to be addressed by the legislature.” Three of the July decisions came under state constitutional challenges and cannot be taken to the U.S. Supreme Court. Jon Davidson, legal director of the New York City based gay rights group Lambda Legal, says no decision has been made on high court appeal of the Nebraska suit. He also notes that, even if plaintiffs should win that appeal, it would not allow same sex marriage in the state.

“The remedy sought in the case is the invalidation of the amendment that makes it pointless for those in the state even to lobby their representatives or ask officials to provide benefits of any kind that rest on the recognition of their same sex relationship, so that those in same sex relationships would be on the same playing field as unmarried heterosexuals, who are able to lobby for such benefits without restriction in the state,” Davidson says.

Though most gay rights advocates decline to discuss the wisdom of other groups’ strategies, Davidson, whose organization represented the Washington and New York plaintiffs, admits to a few overall disappointments.

“I wish there was a lot more money in the political groups on our side and that there were more mainstream leaders supporting this issue,” he says. “But given what we have, I think we’re proceeding the right way. You ask for what you want. You seek, in court and in legislatures, equal treatment. If you can’t get that, you also look at what’s possible.” And attorneys for gay rights advocates say there will be only minor changes in their future strategy.

“In terms of briefing, I don’t know that there’s going to be a radical shift,” says Jennifer Pizer, the lead attorney for the plaintiffs in Washington and senior counsel in Lambda Legal’s Los Angeles office. “We’ve been very careful about the cases we’ve taken, and we might tweak the ingredients, but the basic recipe is very sound.”

Wolfson says the recipe for cases involves bringing a mix of claims from “the constitutional to the practical and ordinary … [including] day to day issues in which families need the law to address emergencies such as health crises, accidents, illness, disputes among family members including divorce and the dissolution of the relationship, child custody and foster care,” with plaintiffs who have “powerful stories” to tell. For powerful stories, Wolfson says he needs “plaintiffs who can speak authentically about the commitment they’ve made in their lives and why they need the equal commitment under the law.”


One shift that will be made is in response to a belief that courts are making a fundamental error in their analysis, Pizer says. “The New York and Washington courts made the same mistake of misapplying the rational basis test so that it becomes a meaningless test,” she says. “With the test as meaningless as that, the court isn’t doing any kind of constitutional job.”

In response, Lambda will “even more strongly call upon judges to fulfill their constitutional obligations. We’re getting more direct in calling out the failure of some courts to do what they’re supposed to be doing and giving in to the people who want to disempower the courts by calling those who enforce the Constitution ‘judicial activists,’ ” says Davidson. “I understand some judges are scared, and some have to run for re election. The stakes seem high.”

Lambda will also argue that U.S. courts can learn lessons from other countries that have legalized civil marriage among same sex couples, including Belgium, Canada, the Netherlands, South Africa and Spain.

“There’s an international movement, and we’re seeing that some of the objections that are being raised are proven false by what’s going on in other countries,” Davidson says. “Religious freedom isn’t being trampled in those countries, society isn’t falling apart, and heterosexuals aren’t stopping getting married as a result. Those things prove that a lot of what the opponents are fearmongering about has no basis.”

Vincent McCarthy of the American Center for Law and Justice, which has intervened or filed an amicus brief opposing same sex marriage in every federal appellate or state supreme court dealing with the issue in the past five years, is the center’s senior northeast counsel in New Milford, Conn. McCarthy says he’s not concerned about a change in tactics because he hasn’t had trouble with any arguments so far.

“There’s nothing that’s been thrown at me that was rational that I had any trouble with,” he says, and same sex advocates “get very emotional.”

McCarthy’s strategy in future cases will continue to focus on what he sees as common sense.

“The argument has to be down to earth,” he says. “Every brief I’ve filed has focused on practical issues and the best interest of children. People can understand that and have experience with that as parents.

“I like the way the Hernandez court handled that issue. It employed a rational basis test and said it’s just common sense that children who are brought up by a father and mother are going to fare better than children brought up in a motherless or fatherless situation,” McCarthy says.

“There’s not only research, but people have their own experience on that. That’s where things have to be worked out on that very practical level,” he says.

One advocate who was willing to critique strategies is Joan M. Burda, a solo practitioner in Lakewood, Ohio, whose practice consists mainly of estate planning for same sex couples. Burda calls for a shift in strategy and believes the Washington court may have given a hint about what attorneys for same sex marriage plaintiffs should argue in the future.

“The court mentioned on at least two separate occasions that plain tiffs asked it not to determine if the rights given to married couples violated the state’s constitution,” she says. “I thought it was striking that the court talked about something the plaintiffs didn’t want it to talk about. That’s the first time I’ve seen that in any decision on marriage.”

Reading between the lines, Burda believes the Washington court may have been signaling that while the state doesn’t have to recognize the right to marriage, it does have to recognize that under the state’s equal protection clause, the rights given to married couples must extend to all couples. “The court was saying, ‘Hint, hint: The outcome might have been no marriage, but the granting of certain secular rights–the ability to file joint tax returns or recognizing children born during any committed relationship–based on a status not allowed to everyone may in itself violate the state constitution.’ ” Burda, who is lesbian, believes there’s a marriage or nothing mindset among some gay rights advocates, but marriage isn’t critical to her. “The community has been spending so much time on the issue of marriage, we forget that what we’re looking for is protection for our families. … Let marriage be a religious term, and let civil unions be the government term.

“While it would be preferable to say we can get married, that isn’t going to be successful, and we have to rethink the strategy,” she says. “We need to start small and build a foundation until the last thing is marriage, and everybody says, ‘Why not?’ ” There’s already a movement toward those small victories, Pizer says. “There’s a very important area of litigation that we’ll augment,” she says, referring to cases involving such issues as the allocation of property after unmarried couples split and the recognition of a de facto parent when same sex couples raise children together. “Those can yield the essential building blocks about why same sex and different sex couples are similarly situated,” Pizer says.


In addition to seeking more narrow court victories, advocates will work on legislative building blocks. “In the near term, the future will be legislative,” says Lara H. Schwartz, legal director and chief legislative counsel for Human Rights Campaign, a lobbying group in Washington, D.C.

For example, Connecticut passed a law allowing civil unions, and Maryland passed a bill dealing with medical treatment decisions and the disposition of remains for unmarried couples (that was vetoed by the state’s governor).

Hernandez and Cohen will gladly participate in the legislative process, Hernandez says. The Empire State Pride Agenda, a political advocacy group, has had a lot of meetings on working with the legislature, he says.

“We’re at their service. People are telling us the process isn’t going to be as quick as we thought it was going to be, that we may have to wait five to 10 years. Who knows? But we’ll keep trying to do the right thing by going through the democratic process,” Hernandez says.


It’s anybody’s guess where the issue of same sex marriage will be in the future. Advocates are sure they will be able to marry, but they’re not sure when.

“Over time there will be protections in place, even marriage,” Schwartz says. “As with other civil rights issues like interracial marriage and sodomy laws, you’re going to see a whole lot of states with more forward looking laws, with a few stragglers, and the [Supreme Court] will bat cleanup. That certainly happened with Lawrence,” she says, referring to Lawrence v. Texas, 539 U.S. 558 (2003), which overturned states’ anti sodomy laws. “And the same was true pre Loving,” she adds, about Loving v. Virginia, 338 U.S. 1 (1967), which overturned 13 states’ bans on interracial marriage. Not so, says the Family Research Council’s Saunders, who doesn’t foresee a much different picture than today. “There may be marriage in some places, but I don’t expect it to be very widespread. I don’t expect New Jersey to find a right to same sex marriage, although it might,” he says. “The movement is to find no such right.”

McCarthy believes Massachusetts will continue to be the lone state in which marriage for same sex couples is recognized. “I can’t think of any states that I’ve been in and listened to the legislative debates where I’ve felt that advocates had a chance of success. I think the whole thing has worn itself out.”

But McCarthy also says much good has come from the rancorous public debate over legalizing same sex marriage in the United States, and he cites his own family as an example.

Recently his father in law was ill, and the whole family stayed at the hospital day after day. Down the hall were lesbians also visiting a patient. “My mother in law, who’s a devout Christian, went out of her way to help them,” he says. “She brought them blankets, pillows and food. I was really proud of that.”

“A lot of people might be saying they’re not going to support marriage, but they see things different ly than they did before that they weren’t treating people as if they were equal human beings, which they are,” he says. “If one of the things that comes out of this is an appreciation for the humanity of gays and lesbians, that would be a very good thing. Very good.” As for marriage, “I just don’t think that … is part of the civil rights struggle,” McCarthy says. “I think there are good reasons for not having marriage of people of the same sex for example, the reason marriage exists, that children are being raised and the many things we’ve argued.”

And so far, it seems that the courts agree.

G.M. Filisko is a lawyer and freelance journalist in Chicago.

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