Legal Experts Spar on Marriage

With a failed Webcast, LGBT advocates speculate on high court debate in Albany

A stellar panel of legal experts at Cardozo Law School gathered with law students to watch the historic arguments before the Court of Appeals via the Internet on Wednesday and like most were frustrated by the overburdened Web site’s failure to deliver anything but an intermittent feed.

But that didn’t stop them from offering some fascinating analysis of the case and the potential direction of the court.

The panelists were Cardozo professors Stewart Sterk and Edward Stein, who also co-directs the Family Law Program there; Suzanne Goldberg, a professor at Rutgers and incoming director of the Gender and Sexuality Law Clinic at Columbia; and William Eskridge, Jr. a law professor at Yale and author of “Gay Marriage: For Better or Worse? What We Have Learned from the Evidence.”

Sterk said that the recusal of Judge Albert Rosenblatt, who has an attorney for a daughter who has filed pro-gay marriage briefs in other states, means the court would appoint a seventh member drawn from the Appellate Division to break a tie, but called the prospect of a 3-3 tally on the court as “very unlikely to happen.”

Three appointees of Democratic Governor Mario Cuomo heard this case and three chosen by Republican George Pataki, with Pataki’s Robert Smith having a “libertarian streak” according to Sterk.

Eskridge said Smith appeared “fossilized” and unlikely to break new ground.

There was also speculation that the other Smith—Judge George Bundy Smith who was appointed by Cuomo and is the court’s only African American—might side with Pataki’s anti-gay marriage position if he wants a reappointment when his term expires in September, though that would only be for one year before he reaches the mandatory retirement age of 70.

All agreed that Chief Judge Judith Kaye was on the gay and lesbian plaintiffs’ side.

Evan Wolfson, director of Freedom to Marry who successfully advanced a Hawaii marriage case (prior to an opposing referendum) as co-counsel in the mid-1990s, was in the audience and told Gay City News, “We’re hopeful the court will do the right thing and no one knows what the court will do.”

But the panel did speculate on multiple directions the court could take, including acknowledging the right of gay couples to equal protection and leaving it to the Legislature to fashion the remedy as occurred in Vermont where civil unions were the compromise.

There was dispute among the panelists as to whether Republican Mayor Michael Bloomberg and Democratic Attorney General Eliot Spitzer, the candidate currently ahead in polls in the governor’s race, were obligated to make the arguments they did in these cases, with Bloomberg coming in for particular criticism for his appeal. Streck insisted that Spitzer had an “obligation to defend the statute,” though Attorney General Robert Abrams refused to defend New York’s sodomy statute in the 1980s.

Goldberg, who led Lambda Legal’s successful challenge at the U.S. Supreme Court in 1996 to an anti-gay referendum in Colorado, reminded those in attendance that it is “amazing” that same-sex marriage has advanced to the point where there is a “reasonable likelihood” of prevailing in this case before the New York high court.

Eskridge said the biggest advances of the lesbian and gay movement have come from state courts, not federal ones. He said that the “slippery slope” argument that finding for the plaintiffs here would open the door to polygamy may be a “lavender herring,” but it is still one the judges “take seriously” institutionally.

While Eskridge said the sex discrimination argument “might be a winner,” Stein said that the court might worry that finding on those grounds “might pollute sex discrimination” jurisprudence.

There was lots of discussion of New York’s divorce laws, considered the most restrictive in the nation, and the importance of warning gay couples about them should they win the right to marry.

Arguments that same-sex marriage is as a diversion from more important goals in the LGBT movement were raised by some students. Eskridge acknowledged that winning could “further marginalize” people who are single, but rejected the idea that this was only a cause for well-to-do white men.

“Most Americans are invested in their sex or gender,” Eskridge concluded. “Same-sex marriage challenges traditional lines.”

Goldberg added, “Courts are comfortable with bright lines. They want to know who is in and who is out when fashioning remedies.”

Goldberg said that society is going through an “adolescent phase” of not wanting to listen to many of the arguments for opening marriage to gay couples. She predicted that in “15 or 20 years” most of the country will have grown up and be open to the issue.

The question today is whether the New York Court of Appeals will hasten that process with its decision in the four cases it is considering.

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