This in The Daily News from our buddy in the State Assembly.
By LAWRENCE C. MOSS
Acting to further the equal protection and nondiscrimination provisions of the California Constitution, San Francisco officials went beyond the "man and a woman" definition of marriage in state law last week by issuing licenses to same-sex couples.
On the same day, the New York City clerk disregarded not only constitutional principles, but also existing state statutes by refusing marriage licenses to same-sex couples.
Unlike California law, New York's matrimonial law does not restrict marriage licenses to persons of the opposite sex, in the view of leading legal authorities.
A 1997 report published jointly by three committees of the Association of the Bar of the City of New York and endorsed by the association's committee on matrimonial law concluded that New York's current domestic relations law is gender neutral. The association concluded that marriage licenses can and should be issued now to same-sex couples under existing law. A supplemental joint committee report by the association in 2001 reaffirmed this conclusion.
The report states: "Nowhere in Article 3, which sets out the requirements and procedures for entering into a marriage, is there any requirement that applicants for a marriage license be of the opposite sex. Nor are same-sex marriages among the categories of marriage that are void or voidable."
In Massachusetts, Hawaii, Vermont, Ontario and British Columbia, courts have found state or provincial marriage laws unconstitutional for failing to offer equal rights to same-sex couples. But no such court action is necessary in New York. Local licensing authorities can simply follow the words of the statute and issue licenses to all couples regardless of gender who meet age, health and contractual capacity requirements.
Denying marriage licenses to same-sex couples denies their right to equality under New York law, while simply following the statute honors those rights. Local authorities can abide by both the constitutional principle of equality and the plain wording of the statute by issuing licenses now.
Understanding this point is crucial, since there is little likelihood, given the seemingly permanent control of the state Senate by Republicans, that New York will amend its domestic relations law to explicitly permit issuing marriage licenses to same-sex couples.
On the other hand, it is equally unlikely that once marriage licenses are issued that the Legislature would act to ban them. The New York State Democratic Party, in resolution adopted last September, has committed itself to supporting full marriage rights for same-sex couples. Given this official party position, the Democratically controlled Assembly should be able to resist any pressure to amend the law.
New York City has adopted an admirable domestic partnership law, but so far neither the mayor nor the City Council have called upon the city clerk to begin issuing marriage licenses to same-sex couples.
Unlike San Francisco, New York would be acting in accordance with current state law and constitutional principles by issuing marriage licenses to qualified same-sex couples. It is high time we do so.
Moss is a lawyer in Manhattan and chairman of the Reform Caucus of the New York State Democratic Committee.