Attorney General Gives Ground on Marriage

Spitzer’s office, in appeals court argument, concedes its case not “compelling”

Attorneys for same-sex couples seeking the right to marry in New York were “very optimistic” after three cases that lost at the trial level were argued in appeals before a five-judge panel of the Appellate Division’s Third Department in Albany on Monday. In a bombshell development, the state attorney general’s office for the first time specifically conceded that there was “no compelling state interest” in denying marriage licenses to gay or lesbian couples; instead, its lawyers offered a “rational basis” for upholding the current law.

Roberta A. Kaplan, a litigating partner with Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan, argued the case brought by the American Civil Liberties Union and the New York CLU on behalf of 13 couples—including Manhattan Democratic Assemblyman Daniel O’Donnell and his partner, John Banta—versus the state Department of Health.

“The arguments went well,” Kaplan said. “It was clear the judges had done their homework.”

Republican Mayor Michael Bloomberg in February appealed the one winning decision at trial for same-sex couples seeking to marry, and that case landed in the First Department of the Appellate Division last month where the lawyers from Lambda were met by a much more hostile bench.

Kaplan said that on Monday, “the more challenging questions were asked of the state’s lawyers. We believe we satisfied their questions. They have a very hard time understanding how there could be a rational basis” for barring gay couples from marrying.

In the course of responding to questions, Kaplan argued that same-sex marriage was a “fundamental right” and that the state must therefore meet a compelling interest standard.

Arguing that the marriage law serves a “compelling interest” is a more difficult standard for the state to meet than merely showing that a statute has a “rational basis.” The hardest standard to meet in justifying a law comes when an issue is subject to “heightened scrutiny,” a measure usually reserved for cases in which questions of racial or religious discrimination are being contested.

Chris Hampton, a spokesperson for the ACLU who observed the proceedings, said, “We thought it went really well and that the court’s questions were thoughtful.”

The state’s deputy solicitor general, Peter H. Schiff, representing the attorney general, offered what he characterized as rational basis arguments for the law limiting marriage to man-woman couples, such as channeling couples who experience “accidental pregnancies” into marriage.

“This is a little bit of a stretch, wouldn’t you say?” said Judge Anthony Cardona in reply.

Kaplan said she told the court that it is “irrational to think a pregnant high school girl will or will not get married because my clients can’t,” in making the point that the state was failing to meet even the lenient rational basis it was claiming applied. Kaplan said that Judge Anthony Carpinello noted that “because you don’t have the risk of accidental pregnancy, there is no reason to exclude them from marriage.”

Schiff also argued that the decision should be left to the Legislature and that the law should be kept as it is as a matter of “tradition” and “uniformity,” since most other states do not recognize same-sex marriages.

“This is not a case about abstract principles,” Kaplan told the judges. “This is a case about real people leading real lives and deprived of a benefit by the state of New York that most people take for granted.”

The New York Law Journal noted that the judges “seemed to struggle” with the idea that denying gay couples the right to marry served the state’s interest in children and “never seemed satisfied” with Schiff’s answers.

Schiff’s concession that the state had no compelling interest in denying same-sex marriage licenses was a breakthrough on the road to bringing this issue to the Court of Appeals, the state’s highest, since the question of which standard should be applied in these cases has not been settled. Review by the Court of Appeals will happen at the earliest next fall. The high court is under no obligation to take one of the cases, but would likely feel pressure to do so in the event of a 3-2 split either way in an appellate panel, which could well ensue.

The other two cases argued Monday involve plaintiffs from Albany and from Ithaca. Terrence L. Kindlon, an attorney for the Albany plaintiffs, said the marriage statute “is a law whose time has passed.”

There is one more case to be argued at the Appellate level on behalf of plaintiffs from Nyack, including Mayor John Shields and his partner Bob Streams. Civil rights attorney Norman Siegel, who just lost his second bid for New York City public advocate, is among their attorneys.

Appellate Division cases are usually decided within one to two months. No ruling has yet come down from the First Department on the New York City case. Final determination from the state Court of Appeals on same-sex marriage should not be anticipated before 2007.

“I think we will prevail,” Kaplan said. “It is very hard for a judge to articulate a rational basis, no less a compelling one for excluding gay and lesbian couples from these benefits. When you separate it from the sound bites, you look at the Constitution and case law and we have an extremely good chance.”

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