Ruling tossing out charges against two ministers relies on Scalia’s Texas sodomy dissent; Spitzer chooses not to fight the case
A second New Paltz town judge has spoken, and a second set of criminal charges against people performing marriages for unlicensed same-sex couples has been dismissed.
On July 13, Justice Court Judge Judith M. Reichler, echoing the decision issued on June 10 by her colleague on the local bench, Jonathan D. Katz, dismissed misdemeanor charges against the Reverends Katherine Greenleaf and Dawn Sangrey, Unitarian ministers, who perform 13 weddings for same-sex couples after another court issued an injunction against Mayor Jason West from performing them.
Greenleaf and Sangrey were subsequently enjoined from performing same-sex weddings as well.
The prosecutor argued that whether it is unconstitutional for the state to deny marriage licenses to same-sex couples was irrelevant to this prosecution, since section 17 of the Domestic Relations Law, the state’s marriage statue, which makes it a misdemeanor for somebody to perform a marriage for a couple without a marriage license, was clearly violated.
But Reichler found that the issue of constitutionality was “inextricably intertwined” with the issue of whether the two ministers could be prosecuted.
“If it is unconstitutional to prohibit same-sex couples from obtaining marriage licenses,” she wrote, “it is unconstitutional to charge defendants with a crime for marrying same-sex couples who are unable to obtain marriage licenses. The fact that there may be other ways the couples could have challenged their inability to obtain marriage licenses does not change this.”
Turning to the question of constitutionality, Reichler found that there was no rational, constitutional argument to justify excluding same-sex couples from marrying. Attorney General Eliot Spitzer’s office declined to participate in the lawsuit, so the task of defending the statute from constitutional challenge fell on the office of Ulster County Prosecutor Donald Williams.
Reichler observed that the Domestic Relations Law itself states no reasons for limiting marriage. (In fact, key provisions of the law are gender-neutral, which prompted the New York City Association of the Bar to issue two reports in recent years stating that clerks can issue licenses to same-sex couples under the present law, a conclusion with which Spitzer disagrees.) Williams argued that the limitation was supported by traditional understanding of the definition of marriage, and by the state’s interest in “encouraging procreation and child rearing within a marital relationship.”
Reichler found neither of these arguments persuasive.
“Tradition does not justify unconstitutional treatment,” she wrote, pointedly observing that “slavery was also a traditional institution.” Reichler asserted that “the definition of ‘family’ has changed so much over the years that it is difficult to speak of an average American family.”
Reichler was less supportive of the ministers’ argument that prosecuting them would violate their right to free exercise of religion, pointing out that most religious authorities seem to want the state to exclude same-sex partners from marriage. But she also pointed out that what is at stake in this case is civil marriage, not religious marriage, and that the state has a right to define civil marriage, so long as it does so in a constitutionally acceptable manner.
Turning to the state’s argument about procreation and child rearing, Reichler said that even raising this argument “displays an anti-gay bias, rather than a real desire to provide a favorable environment for procreation and child-rearing. If family and children were truly the priority,” she insisted, “the state would take all possible steps to protect them.” The state, she pointed out, has itself recognized the right of gay people to raise children, both in regulations allowing gays to adopt and in court decisions on custody and visitation matters.
“Many same-sex couples raise children,” she wrote, “adopted or conceived by one of the partners… Excluding same-sex couples from civil marriage makes these children less, not more, secure.”
“Same-sex relationships are based on the same thing as heterosexual unions: intimacy, companionship, love, family,” Reichler continued. “Prohibiting same-sex couples from marrying suggests that marriage is about nothing but sex. This is demeaning to all couples who seek to marry and to the institution of marriage. Disapproval of a group is an insufficient reason for exclusion.”
As her crowning touch, Reichler cited the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, in which the court invalidated the Texas Homosexual Conduct Law, referencing the dissenting opinion by Justice Antonin Scalia.
“The majority opinion makes clear that its ruling does not address whether there should be formal recognition of homosexual relationships,” she observed, “but Justice Scalia warns us not to believe it. Instead, he insists that the majority’s rationale regarding personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education applies to homosexual relationships. Given the broad scope of the majority opinion, he adds, ‘what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.’”
Having found that the 13 couples were unconstitutionally denied licenses by the New Paltz town clerk, Reichler concluded that the state could not prosecute the two ministers for performing weddings for those couples.
There was no immediate announcement from the Ulster County prosecutor about whether the decision will be appealed.