THE NATION

N.Y. Ban on Gay Marriage Annulled

By Josh Getlin
Los Angeles Times Staff Writer

February 5, 2005

NEW YORK — A New York judge struck down the state's ban on gay marriage as unconstitutional Friday, paving the way for five same-sex couples to wed and opening the door to a contentious battle over the issue in the Empire State.

State Supreme Court Justice Doris Ling-Cohan, however, stayed her ruling for 30 days — expecting that there would be appeals. The Supreme Court is New York 's trial-level court.

The lawsuit, filed last year in New York City , challenged the state law regulating marriage; several previous challenges failed and are awaiting action from appellate courts.

"Simply put, marriage is viewed by society as the utmost expression of a couple's commitment and love," Ling-Cohan wrote in a 62-page opinion. "Plaintiffs may now seek this ultimate expression through a civil marriage."

Gay and heterosexual couples, she said, "are entitled to the same fundamental right to follow their hearts and publicly commit to a lifetime partnership with the person of their choosing. The recognition that this fundamental right applies equally to same-sex couples cannot legitimately be said to harm anyone."

The New York City Law Department, which argued in the case that granting same-sex marriage licenses violated the state constitution, said in a statement Friday: "We are reviewing the decision thoroughly and considering our options."

Opponents of same-sex marriage criticized the ruling as misguided, predicting a court battle and potential action by the state Legislature to prevent gay unions.

"I believe it is inconsistent with logic and reason," said state Sen. Serphin R. Maltese, a Queens Republican who has introduced a bill to ban gay marriage.

In a statement on his website, Maltese said the ruling ignored "our Founding Fathers' intention that marriage be an institution between a man and a woman."

Last year, New York Atty. Gen. Eliot Spitzer issued an opinion that state law banned same-sex marriages; however, he said the law raised "important constitutional questions" and could be subject to legal challenge. Spitzer also said same-sex marriage licenses granted in other states should be recognized in New York .

Friday's ruling — which for now applies only to New York City — is expected to be appealed to the state appellate court. The case then could make its way to the New York Court of Appeals, the state's highest court. Resolution could be months, if not years, away. If the decision is upheld at that level, it could apply statewide.

Lambda Legal Defense Fund, a national gay advocacy group, hailed Ling-Cohan's decision as a "historic ruling that delivers the state constitution's promise of equality to all New Yorkers," said Susan Sommer, Lambda's lead attorney in the case.

At a news conference in New York , one of the couples who challenged the law — Jo-Ann Shain and Mary Jo Kennedy — said the ruling gave them stronger legal rights. The two, who have been together for 23 years, have a 15-year-old daughter.

"I'm going to sleep better with the legal protection of a marriage," Kennedy said, adding that she hoped to get a marriage license with Shain as quickly as possible.

The New York ruling follows a Massachusetts high court decision last year that that state's ban on same-sex marriage was unconstitutional.

Sommer said Lambda had filed similar litigation challenging laws in New Jersey , and had joined with other organizations to file appeals of laws in California and Washington . Decisions are pending in the California and New Jersey cases, and the Washington state Supreme Court will hear arguments March 8, Sommer said.

"We hope for a similar ruling any day now … in the California litigation," said Molly McKay, Northern California associate executive director for Equality California, in praising the New York decision.

The group, McKay added, "hopes to end marriage discrimination in both the courts and the Legislature this year."