Gender-Neutral Marriage Licenses Eyed in City

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The New York Sun

Room 262 of Manhattan’s Municipal Building is the place where “the whole world that wants to get married in New York City” comes, according to First Deputy City Clerk Michael McSweeney. In 2005, the office of the city clerk issued about 28,000 marriage licenses here.

Couples pay their $35 and fill out their applications. Many then turn their pens to the walls, drawing heart shapes and writing their names – Anna and Alan, Stephanie and David, Charles and Julia. There is no confusion on the application, which mentions a “wife” and “husband” – not “spouses.”

Gay couples who come for licenses are turned away. Whether that will change may be decided as early as today – and likely no later than next week – when the state’s highest court hands down a decision on same-sex marriage. The court is expected to hand down decisions in all pending cases by next week. If the court, which heard arguments in four gay marriage cases on May 31, rules in favor of the 44 couples represented in the suit, New York would become the second state, after Massachusetts, to allow gay couples to marry.

The city clerk’s office is aware that it may soon be passing out marriage-license applications in room 262 that include gender-neutral wording. “Clearly these are changes that we are looking into,” Mr. McSweeney said.

A spokeswoman for the mayor said that “some preliminary plans” have been made in preparation for the possibility that the court rules for same-sex marriage. Mr. McSweeney said he expects “an early rush” of eager gay couples.

Others across the city are also quietly considering what will happen if the court rules in favor of gay couples. Assemblyman Daniel O’Donnell, who is a plaintiff in one case, said in a telephone interview that he found himself joking with his partner at dinner this week about how to pay for a wedding large enough to invite his 104 fellow Democrats in the assembly.

But lawyers in the case say that a ruling from the Court of Appeals might come in forms other than a strict “yes” or “no” answer.

An American Civil Liberties Union attorney involved in one of the lawsuits, James Esseks, said the court could provide gay couples with the option of civil unions, as Vermont’s highest court did. Civil unions offer same-sex couples all the same legal protections of marriage, but reserve the term “marriage” for unions between a man and a woman.

The court could alternatively tell the couples that there is no state constitutional right for same-sex couples to marry and point them toward the Legislature as the appropriate venue for seeking change. One judge on the court, George Bundy Smith, asked several lawyers who came before him during the May hearing why same-sex marriage is an issue for the courts – and not the Legislature – to decide.

Gay rights activists have pledged to begin lobbying the Legislature should the Court of Appeals not rule in their favor.

In May, when the Court of Appeals heard arguments in the case, clues into the judges’ thinking were hard to come by. At one point, Judge Robert Smith asked a question signaling he doubted there existed a fundamental right for gay couples to marry. A moment later he asked whether gay couples have, in fact, been subject to the longest running civil-rights violation ever.

The lower trial and mid-level appellate courts in New York have largely ruled against the 44 couples in the two years it has taken for the four lawsuits to come before the Court of Appeals. Only one lower court judge, Doris Ling-Cohan of the State Supreme Court in Manhattan, ruled in favor of the plaintiffs. In her ruling, from February 2005, she wrote that gay couples seeking marriage were being denied due process and equal protection under the state constitution. Her ruling was overturned.

The four lawsuits pending before the Court of Appeals were brought against city and town clerks who approve marriage license applications and the state’s health department. At issue is whether the Domestic Relations Law, which restricts marriage to members of opposite sexes, violates rights protected under the state constitution. Lawyers for Mayor Bloomberg and Attorney General Spitzer are arguing the case against the couples.

Should the Court of Appeals rule in favor of same-sex marriage, it would instruct the Legislature to come up with new wording in its marriage laws.

Lawsuits on behalf of gay couples seeking marriage are also currently pending before the highest courts also in New Jersey and Washington, Mr. Esseks said.

About 8,000 gay couples have married in Massachusetts, since a court ruled in favor of same-sex marriage in 2003, according to the civil rights group, Gay & Lesbian Advocates & Defenders.


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