From "The New York Law Journal"

State Bar Urges Equal Rights, Full Protection for Gay Couples

John Caher
New York Law Journal
04-05-2005

ALBANY — The New York State Bar Association has overwhelmingly endorsed full equal protection rights for homosexual couples. But the bar group stopped short of calling for the specific legislative remedy of same-sex marriage while concluding that the option is a desirable and perhaps preferable means of addressing historic and invidious discrimination.

At an Albany meeting on Saturday, the state bar's policy-making House of Delegates voted 120-40 in urging legislative action to redress what the group concludes is inarguably and indefensibly discrimination. It urged the state Legislature to recognize either same-sex marriages, domestic legal partnerships or civil unions. By a margin of 86-82, the House of Delegates voted down a proposal that would have cited same-sex marriage as the sole constitutional cure.

The two votes were among several tallies and debates as the delegates spent more than three hours wrestling with one of the most vexing questions confronting the state, the country and much of the globe. But Saturday's debate centered not on whether the rights of same-sex couples should be recognized and secured as a matter of equal protection — that seemed to be a given — but on how and if the bar group should enter the battle.

"I thank each and every one of you," beamed Manhattan delegate Peter J.W. Sherwin of Proskauer Rose after hearing the comments of 46 others but before a single vote was cast. Mr. Sherwin identified himself as a gay man who will wed his longtime partner if and when New York allows him. "The level of the commentary — each and every one — has been wonderful," he said. "I am so proud to be a member of the state bar."

Several delegates, recalling with regret and a measure of embarrassment that the bar group was not at the forefront of the 1950s and '60s civil rights movement, urged the organization to take a bold position in favor of same-sex marriage.

"Act with courage, act with pride, and do something significant for the people of New York," urged John J. Privitera of McNamee, Lochner, Titus & Williams in Albany. Added Norman L. Reimer of the New York County Lawyers' Association and Gould, Fishbein, Reimer & Gottfried in Manhattan: "Lawyers are supposed to correct injustice. That is why we have to act. This organization has to define its character."

Newburgh City Court Judge B. Harold Ramsey said the state bar holds a leadership role, and should lead by speaking strongly and publicly in favor of full equal protection rights for gay couples. "Part of being a leader is moving people out of their comfort zone and stating that we all live under the Constitution," Judge Ramsey said. "This is not only a civil rights issue, but a human rights issue. This is not a social issue. It has nothing to do with religion. It is about equal protection."

Others were unwilling to categorically declare that same-sex marriage is the only constitutionally sound solution. Many — including state bar President Kenneth G. Standard, some past presidents and several bar leaders — suggested the group would undermine its credibility with the Legislature and needlessly create friction within the bar by taking a position on a disputed public policy question.

"I think it is wrong for us to think we can substitute our judgment for the judges, for the Legislature," said Mr. Standard of Epstein, Becker & Green in Chappaqua, adding that he has a religious reservation about same-sex marriage. "We are experts at being lawyers. None of us has the experience to determine what is in the best interests of all the citizens of New York."

Series of Votes
Saturday's marathon session had its roots in a motion brought before the House of Delegates more than two years ago by the Association of the Bar of the City of New York.

At the January 2003 annual meeting, the city bar called for a resolution urging legislation to guarantee same-sex couples the same marital rights of heterosexual couples. When it became obvious the state bar was not ready to take that step, the city bar offered a more tepid alternative, a civil union statute similar to Vermont's. But the state bar, the largest voluntary state bar organization in the country, was not ready for that either. President Lorraine Power Tharp of Whiteman, Osterman & Hanna in Albany appointed a Special Committee to Study Issues Affecting Same-Sex Couples.

Last fall, the committee released a 380-page report addressing in depth the nettlesome legal and public policy issues, and illustrating the passion those issues provoke. All 12 members of the committee supported equal protection rights for gay couples. Nine of the 12 said the Legislature should enact remedial legislation of some sort.

Five would have extended all civil marriage benefits to gays. Four said they supported equal rights, but declined to endorse any particular remedy. Three, including two former presidents, cautioned the group against taking a stance on a public policy issue, but did not question the fundamental equal protection problem or the need for legislative correction.

Those positions, plus several others, were articulated through hours of debate Saturday when the house conducted a series of votes on alternative proposals and amended versions of those proposals. The first issue of discussion, debate and eventually vote was the so-called "Gross Resolution" offered by John H. Gross of Proskauer Rose. Mr. Gross' resolution, which was endorsed Friday night by a split vote of the state bar's executive committee, would have had the organization remain on the sidelines until the Court of Appeals decides the constitutionality of New York's ban on same-sex marriage. That resolution went down in a 120-51 vote.

Next, the house considered a resolution by former President A. Thomas Levin of Meyer Suozzi English & Klein in Mineola, co-chair of the special committee. Mr. Levin, presenting the dissenters' viewpoint, said the state bar should not take a position on same-sex marriage for the same reason it refrains from taking a position on other policy issues, such as stem-cell research, abortion and flag desecration. His resolution was defeated 114-58.

The Elder Law Section, represented by Howard S. Krooks of Littman Krooks in White Plains, offered what it portrayed as a middle-ground resolution. Its proposal, which was appealing to many delegates, would have called on the Legislature to decide the public policy issues regarding same-sex relationships while urging lawmakers to address all the legal distinctions between homosexual and heterosexual couples. That measure fell in a 99-64 vote.

Finally, the delegates were left only with the competing proposals of Albany partners Michael Whiteman and James B. Ayers of Whiteman, Osterman & Hanna. Mr. Whiteman argued strenuously for full marital rights for same-sex couples, urging the state bar to stay clear of any "separate but equal" proposition. Mr. Ayers, saying he fully supports gay marriage, crafted the resolution that eventually passed. That resolution calls on the Legislature to create a civil union statute, a domestic partnership registry or to expand the statutory definition of marriage to encompass same-sex couples.

Throughout the day, delegates seemed to sense that the organization was at a crossroads, and perhaps in the cross hairs, of history.

There was muzzled concern that the state bar was teetering somewhere between taking a principled, enlightened position on which it would proudly stand for generations, or submitting to cockeyed liberalism that would cost it credibility with its members and the public.

'A Watershed Day'
The final vote came down somewhere between boldness and caution. Mark H. Alcott, vice president of the state bar and a partner at Paul Weiss Rifkind Wharton & Garrison, moderated the discussion. He opened the proceeding by describing it as "a watershed day."

Mr. Levin, the lead dissenter, said that by its action the state bar has wisely avoided divisive public policy debates that are not strictly legal in nature. "I think, in our hearts, probably all of us agree that marriage would be the best solution," Mr. Levin said. But he said risking credibility by taking a public position on a socio-political issue, particularly one that is so value-laden and so strongly implicates religious convictions, "is something we just don't need to do." Proskauer Rose's Mr. Gross expressed concern that "for us to announce our view on constitutionality prior to the court can be characterized as arrogant and presumptive."
But Executive Committee member Donald C. Doerr of McDermott, Doerr & Britt in Syracuse said: "We really ought not to be in this arena."

Two black delegates, David L. Edmunds Jr. of Buffalo and Lawrence R. Bailey Jr. of Manhattan, said they were offended by those who would compare the civil rights struggle of gays to that of blacks. "This is not an equal protection issue," Mr. Bailey insisted. "I am against gays and lesbians getting marriage licenses."

Robert L. Haig of Kelley Drye & Warren in Manhattan reminded the House of Delegates that the organization has been attempting to "get out ahead" and be more proactive than reactive. "This is an issue on which our views should be heard," he said.

From Mr. Sherwin's perspective, the New York State Bar Association now joins the Massachusetts bar as the only statewide bar groups to take a public position endorsing same-sex marriage. He noted that while the resolution that passed presented three potential remedies, one of the solutions deemed acceptable to a strong majority was marriage rights for gay couples.

"We support equal rights, equal treatment for same-sex couples," Mr. Sherwin, a member of the Special Committee to Study Issues Affecting Same-Sex Couples, said in an interview yesterday. "We did not reject marriage as a way to do that. All we said is that the Legislature can also and should also consider civil union and domestic partnership.

The state bar is saying one of the ways, and the best way if you look at the resolution, is marriage."