NYS Case Law

ACLU asks end to NYS law banning marriage equality
ALBANY - The American Civil Liberties Union on Oct. 17 asked a New York appeals court to strike down a state law that bars same-sex couples from marriage and the hundreds of family protections afforded to married couples.

Meanwhile, the state’s case against marriage equality was not going too well, according to the New York Law Journal.

“It was a great relief to be in court and hear our lawyers explain to the court the very real consequences we deal with when we’re treated as legal strangers to our partners,” said plaintiff Tonja Alvis of Schenectady, who is raising two children with her partner of six years, Kathy Burke. “We’re looking forward to the day when we can finally dance with our sons at our wedding and are no longer denied the legal protections that other couples enjoy.” Alvis has no health insurance because she can’t afford the plan offered by her employer, and Burke’s employer doesn’t offer domestic partner health benefits.

The case, brought by the ACLU’s national Lesbian and Gay Rights Project, the New York Civil Liberties Union, and Paul, Weiss, Rifkind, Wharton and Garrison, LLP was argued before the Third Judicial Department of the New York Supreme Court’s Appellate Division on behalf of 12 same-sex couples. Several of the plaintiffs, who hope to be married in the state of New York and had been on the waiting list to get married by Mayor Jason West in New Paltz, were present in court.

“Our plaintiffs include a police officer, a nurse, a social studies teacher, an artist, a physical therapist, and a state legislator — people from all walks of life who make the same commitments to their partners that straight couples do,” said Roberta Kaplan of Paul, Weiss, Rifkind, Wharton and Garrison, LLP, who argued the case as an ACLU cooperating attorney. “Denying these loving, devoted couples marriage protections hurts families and ultimately the state….

“This is not a case about abstract principles,” Kaplan said. “This is a case about real people… who are deprived of benefits by the state of New York.”

“Marriage is a commitment shared by two people who love each other and agree to look out for each other during the good times and the bad,” said James Esseks, Litigation Director of the ACLU’s national Lesbian and Gay Rights Project. “Two adults who make this personal choice to form a life-long commitment should not be denied the right to marry just because they are gay or lesbian.”

Among the couples who were present for the arguments were:

Cindy Bink and Ann Pachner of West Hurley, who have been together for 17 years. Bink had to leave her job as a counselor at a community college in New Jersey, where she had worked for 17 years because the college did not offer domestic partner benefits. Forced to search for a job that would allow her to cover Pachner on her health insurance policy, she finally found a job working for the City of New York that provides health care for both of them.

Regina Cicchetti and Susan Zimmer, who live in Port Jervis and recently celebrated their 35th anniversary. Cicchetti has survived two life-threatening illnesses — breast cancer and a pituitary tumor — and says that she could never have made it through these crises without Zimmer’s support. The couple wants the security of knowing no questions will be asked about their relationship should one of them be hospitalized in the future.

“The New York constitution requires that the state treat all its citizens equally,” said Art Eisenberg, Legal Director of the New York Civil Liberties Union. “Despite the fact that lesbian and gay people make the same kinds of commitments to their partners and children that straight people make, the state denies them numerous protections that keep families afloat during difficult times. That’s not equal treatment.”

It is unknown when the court will issue its ruling. However, the Court of Appeals, New York State’s highest court, will almost certainly have the ultimate say over the issue.

Biographical information on all of the clients and the legal documents, and other background materials about Samuels and Gallagher, et. al. v. New York Department of Health, are available at www.aclu.org/caseprofiles.

The New York Law Journal’s coverage suggested that the state conceded that New York has no compelling interest in preventing same-sex marriages, and relied on a rational basis claim. “In 90 minutes of arguments before the Appellate Division, Third Department, the state abandoned one of its two major defenses and struggled to sell the other.”

The Law Journal said that Deputy Solicitor General Peter H. Schiff claimed that while there is no compelling state interest in banning homosexual marriage, the state’s prohibition survives a rational basis test on the strength of its historic commitment to providing a stable environment for children. The state argued it was up to the Legislature to determine whether same-sex marriages should be legalized.

Schiff did not claim that gay or lesbian parents would necessarily preside over an unstable environment, arguing instead that New York’s preference for opposite-sex marriages is based on the rationally pragmatic interest in encouraging childbirth within the confines of marriage.

“Well, what does that have to do with it?” asked Judge Anthony J. Carpinello, a question asked in various forms by several judges, the Law Journal said.

According to the Law Journal, Schiff attempted to explain that with the possibility of accidental procreation, the state has an interest in promoting marriage so children will be born in “physically and emotionally stable settings”. But that argument appeared to trouble the court, especially since there is no possibility of accidental procreation in a homosexual relationship.

“That is a little bit of a stretch, wouldn’t you say?” responded Presiding Justice Anthony V. Cardona.