Second Court Rejects Gay Marriage

Albany judge follows Rockland court in relying on slim state appellate precedent

A second New York trial judge has ruled on the current round of same-sex marriage cases pending in courts around the state, again dismissing the claims of gay and lesbian plaintiffs.

On December 7, Justice Joseph C. Teresi of State Supreme Court in Albany County, echoing a Rockland County decision issued on October 18, found that the existing state marriage law does not violate the constitutional rights of gay people.

The case before Teresi was brought on behalf of 13 couples, including New York State Senator Daniel O’Donnell (D-Manhattan) and his partner John Banta, by the American Civil Liberties Union (ACLU) and the New York Civil Liberties Union (NYCLU), with cooperating attorneys from the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison. 

Nobody was expecting the trial court to rule in favor of the plaintiffs in this case, because trial judges are bound to follow existing precedents established by the state’s appellate courts. Although the highest court in the state, the Court of Appeals, has never addressed the marriage issue, the Appellate Division court in Brooklyn ruled negatively on a same-sex marriage claim in 1993.

The Rockland County court found itself to be bound by this ruling in October, and Teresi reached the same conclusion in his December 7 opinion.

The trial courts in New York are currently bound by prior findings that the state can defend the statute on the ground that it is a rational policy to exclude same-sex couples from marriage in order to insure consistency with federal law and the law of other states and to preserve the historic, legal and cultural understandings of marriage as a heterosexual institution. Those findings, of course, predate more recent federal constitutional developments, the most significant being the Supreme Court’s 2003 decision in Lawrence v. Texas striking down the Texas sodomy law and recognizing gay people as equal citizens. 

Teresi seized upon a statement by Justice Sandra Day O’Connor in her concurring opinion in Lawrence to the effect that the states would have a legitimate interest in preserving the traditional definition of marriage. O’Connor’s statement not part of the majority opinion in Lawrence and therefore not a binding precedent. Teresi also noted that back in 1972 the U.S. Supreme Court declined to review a decision by the Minnesota Supreme Court rejecting a same-sex marriage claim, on the ground that the case did not raise a substantial issue of federal constitutional law. The action on the Minnesota case theoretically stands as a federal constitutional precedent.

Most of the same-sex marriage litigation around the country at this point is focusing on state constitutional arguments, which provided the basis for the civil union victory in Vermont and the marriage win in Massachusetts.

The ACLU and NYCLU will take the Albany case to the next step by filing a timely appeal, just as the Nyack plaintiffs plan to do with the Rockland County decision. Still to be heard from in the current round of New York cases is the trial judge in New York City considering a lawsuit brought by Lambda Legal.

Ironically, the official defender of the marriage law, State Attorney Gen. Eliot Spitzer, has indicated in recent public statements that he supports same-sex marriage, but is upholding his duty as attorney general to defend the constitutionality of state laws.

Marriage cases are pending in state trial courts in Connecticut, California, and Florida; the New Jersey Appellate Division just heard arguments in Lambda Legal’s same-sex marriage case; and the Washington State Supreme Court will be hearing arguments in March. The Oregon marriage case has been diverted by the passage of an anti-marriage state constitutional amendment, but the ACLU is now pushing that case forward to an argument in the Oregon Supreme Court next week, seeking civil unions or domestic partnerships as an alternative remedy.

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