Couples seek licenses despite attorney general’s opinion on state’s current law
Less than a week after the mayor of the Village of New Paltz presided over New York’s first same-sex marriages in upstate Ulster County, a crowd estimated by organizers at more than 1,000 turned out at City Hall and across the street at the Municipal Building to call on City Clerk Victor Robles to issue licenses to gay and lesbian couples here in the city.
Roughly 100 gay and lesbian couples stood on line in the early morning hours on March 4 for up to an hour before passing through security at the Municipal Building and proceeding to the clerk’s second floor office to request marriage licenses. There, they were handed a form letter from Robles explaining that his office does not view itself as authorized to issue licenses to same-sex couples. The form letter was stapled to a 28-page advisory opinion issued the day before by state Attorney General Eliot Spitzer’s office, which argued that the New York Domestic Relations Law bars same-sex marriage.
Most of the rest of the crowd on hand Thursday morning formed a picket just east of City Hall, carrying signs calling on Mayor Michael R. Bloomberg to direct the city clerk to issue same-sex licenses.
The event capped six days of intensified activism among the city’s gay and lesbian community that played out against a background of state and city officials scurrying to clarify the status of marriage in New York State. Despite the attorney general’s opinion issued on Wednesday, echoed by a similar finding from the city’s corporation counsel, official opinion on the matter remains anything but clear.
Gay City News has learned that Manhattan District Attorney Robert Morgenthau told at least one elected official last Thursday that he disagreed with the conclusions of the state attorney general and the city corporation counsel about the legality of same-sex marriage and would not bring criminal proceedings related to such unions. One source close to the discussions with Morgenthau told Gay City News that the D.A. would be unwilling to prosecute any official authorized to issue marriage licenses who granted such a license to a same-sex couple.
Despite the two legal opinions issued on the eve of the City Hall demonstration, organizers were pleased at the turnout at the March 4 event––called by an ad hoc group called NYMarriageEqualityNOW.org, forged the previous week at a meeting at the LGBT Community Center. As hundreds of picketers outside City Hall carried placards reading “New York Marriage NOW!”, “Bush: Separate Is Never Equal”, and “We Planned Your Weddings––Now Plan For Mine,” TV camera crews buzzed around the couples across Centre Street outside the Municipal Building.
Kathryn and Elisabeth Jay, both Barnard College professors who were married in a religious ceremony at St. Paul’s Chapel at Columbia in 2001, are mindful of the twin babies, a boy and a girl, with whom Elisabeth is seven months pregnant.
“We think about the fact that Kathryn is going to have to adopt her own children,” Elisabeth said when asked about the couple’s motivation in seeking marriage rights. “There is not really a word for how ludicrous that is, how horrible that is that she has to adopt her own children.”
But, Kathryn also underscored the fact that the relationship and commitment between the two women is at the heart of their wish to be married.
“Elisabeth is the person that I love the most in the world and we have taken all the legal steps available to us,” she said. “It is ingrained in our culture that getting married is something you do when you fall in love with someone and want to spend the rest of your life with them. That is not really a legal protection–– it’s more of a cultural idea about what people who love each other do.”
Judith Tax and Rabbi Nancy H. Wiener, who have lived together in Manhattan for the past 17 years, have also had a religious marriage ceremony, performed by several Reform rabbis in 1991 at the home of Wiener’s brother.
Wiener said that, as a rabbi, “the separation of church and state is very important to me and having a religious service is not the same as getting civil recognition of this union and the commitment we have made. So to have the two will only enhance what people understand our relationship to be. It will be honored in a different way. To say you’re married means something in this country and nothing else is comparable.”
Speaking to the more practical concerns they have about the wills and the durable powers of attorney they have drawn up to protect each other, Wiener added, “The paperwork we have can all be challenged.”
Jeffrey Becker and Steven Knight live together in Washington Heights and first heard about plans for the demonstration from Marriage Equality’s e-mail alert. They turned out to lend their voices and expect they will be back for future demonstrations.
“We are under no illusions,” Becker said as the couple waited in line. “We are most likely going to be refused. We want to someday have some kind of ceremony. We may end up getting married here or in Canada or in Belgium.”
At the mention of foreign weddings, Knight spoke up saying he was a lifelong New Yorker who would prefer to get married at home.
The day before the City Hall demonstration, the announcement of the attorney general’s opinion at a downtown press conference stirred enormous media scrutiny. Though stating that same-sex marriage is not authorized under state law, Spitzer said that New York should recognize such unions sanctioned by other states–– such as Massachusetts.
He also noted that his office had identified “important constitutional questions” related to equal protection about the state’s marriage statute as it currently reads.
As Spitzer faced reporters on Wednesday, the city’s corporation counsel, Michael Cardozo, also issued an advisory opinion, reaching the same conclusion about the current statute, but offering none of the upside possibilities that the attorney general had offered same-sex marriage advocates.
One official who apparently does not share Spitzer and Cardozo’s views on the statute is Morgenthau, the New York County prosecutor. According to Chelsea Assemblymember Richard Gottfried, who sponsors a same-sex marriage bill in Albany, Morgenthau told him last Thursday in a telephone conversation that he did not share the opinion that New York statute bans gay marriage. Morgenthau added that he would not prosecute any alleged criminal offense related to same-sex marriages performed in Manhattan.
“If for example the city clerk were to issue a marriage license, and someone were to say that was a criminal act, [Morgenthau] would not prosecute him,” Gottfried told Gay City News in a telephone interview. “But our conversation was fairly brief and did not get into how it might arise in a criminal context.”
A source who has had conversations with Morgenthau’s office about the same-sex marriage issue told Gay City News that officials considering solemnizing marriages should not make the assumption that the DA would not prosecute such actions if undertaken without the couple having a license.
Gottfried called Morgenthau “one of New York’s most distinguished and thoughtful lawyers,” but conceded that the city clerk or the corporation counsel would view his opinion “primarily persuasive rather than officially considered.”
Gottfried said he did not ask the DA whether he had shared his views with the city clerk, the corporation counsel, or the mayor.
Barbara Thompson, a spokesperson for Morgenthau, said his office does not comment on private conversations the prosecutor had or did not have with elected officials and others.
Patrick Synmoie, counsel to City Clerk Victor Robles, said he was unaware of any conversation between Morgenthau and the city clerk.
Calls to the mayor’s office and the corporation counsel were not returned.