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Can’t help falling in love: (L-R) Nora Yates and Erica Lewis at their wedding five years ago.

Photo: Linda Conley

With This Ring . . .

As state policy shifts for same-sex couples fighting for their civil rights, is the right to marry on the horizon?

By Kathryn Lange

Five years after their wedding, Albany residents Nora Yates and Erica Lewis are legally married in New York. After a nearly four-year legal battle in Rochester, the New York State Supreme Court issued their decision the case of Martinez v. The County of Monroe—establishing that same-sex couples’ legally performed out-of-state marriages are entitled to recognition in New York. The decision grants legally married same-sex couples the 1,324 state rights and benefits that come with marriage—rights they have, until now, often been denied. According to Yates, the bubbly new executive director of the Capital Region Gay and Lesbian Community Council, while the decision gives the Lesbian, Gay, Bisexual and Transgender community much to celebrate, the fight for marriage equality is far from over.

Yates is still catching her breath from the local pride celebration; she’s still buried under “boxes of rainbow flags and Red Bull,” she chuckles. June marks national Gay and Lesbian Pride Month, a celebration of the vibrant LGBT community, and a time to evaluate the year’s advances and setbacks in their ongoing fight for civil rights. Pride events are held nationwide, from parades and parties to lectures, health clinics, and public advocacy. And Albany was no exception.

On June 8, Albany’s Pride Parade wended its way into Washington Park, where, despite looming thunderstorms, live music rang through the tulip beds, and families and friends gathered to dance, gobble down barbecue, slurp lemonade, toss Frisbees, and celebrate their community. Dogs romped at the ends of rainbow leashes, babies napped in the sun, and toddlers ran after streams of bubbles, their gleeful giggles piercing the heavy summer air. Under an expansive tent, an array of LGBT organizations offered literature on their services: a gay hockey league seeking new members; Out&About, the gay-friendly phonebook; health clinics; and churches happy to welcome parishioners regardless of their sexual orientation.

The majority of the tables addressed, in one way or another, what has proven to be one of the most controversial and pressing issues in the LGBT community today—the right to marry, a right which the U.S. Supreme Court has put in the hands of the states.

National Pride Month is held in June to commemorate the Stonewall Rebellion, widely considered the birth of the modern LGBT civil-rights movement. The five-day riot, spurred by a rash of raids on New York City bars catering to LGBT clientele, exploded in Greenwich Village 39 years ago this weekend. At the time, patrons could be arrested for kissing, holding hands, or other acts of “indecency,” or merely for being in the establishment at the time of the raid. Bars could lose their liquor license for “knowingly serving a group of three or more homosexuals.” Homosexuality was still listed as a mental illness by the American Psychiatric Association.

The CRGLCC, which Yates proudly explains is the longest continually running LGBT community center in the nation, was established the year after the Stonewall Riots by several people from Albany who experienced the riots firsthand. They originally rented the basement of the CRGLCC’s current Center Square brownstone as a meeting space, and eventually bought the building, which now serves as the CRGLCC’s community center, offering social events, support groups, a café, a gallery, advocacy, and outreach.

Marriage equality is a critical issue for the center’s members, says Yates. “Since we have a lot of support groups, we often see people when they are in crisis, and the issue of marriage equality comes up all the time. They may have lost a partner, and are struggling to manage the legal landscape, buying their house that they’ve lived in for 20 years back from the estate, for instance. Even burial decisions. If we had the right to marry, this wouldn’t be an issue. We could just deal with the grief of losing a partner.”

It’s a complex legal tangle that Yates describes with a drawn-out “It’s sooooo complicated,” shaking her tumble of blonde hair. And it’s a tangle, she insists, that marriage equality would untwine. “It really just comes down to rights,” she says, matter-of-factly. “To provide these couples the protections they need so they can go about their daily lives and not have to worry. They just want to be in love and be together, but they have to jump through 100 hoops.”

In addition to the legal battles same-sex couples face surrounding end-of-life issues, couples of all ages have long been denied the 1,324 state rights granted by marriage, as determined by the New York State Bar Association—more than 3,000 if federal benefits are considered as well. Rights that include everything from medical decision making and parental responsibility to signing permission slips and dog-liscence applications. Yates and her wife are currently fighting for spousal tuition credit benefits through Lewis’ employer.

“At private institutions, classes can be two, three thousand dollars a pop,” says Yates. “We entered into conversations with the school explaining that we are legally married . . . but they’re contacting their lawyers. They’re not sure. We’re still fighting that battle.”

Based on the recent court decision in the Martinez case, and strong statements of public policy by government officials, including Gov. David Paterson, members of the LGBT community hope the rough legal terrain will soon become easier to navigate.

Patricia Martinez and Lisa Ann Golden were married in Canada in 2004. Martinez, who works at Monroe County Community College in Rochester, sought spousal health-care benefits for Golden, but the college refused the request for benefits because they were a same-sex couple and could not have been married in New York. The couple contacted the New York Civil Liberties Union who, along with their cooperating attorney Jeffery Wicks, filed a lawsuit against the college and Monroe County.

According to Matt Faiella, a staff attorney for the NYCLU, the lawsuit presented two distinct arguments, “one being that the county college’s refusal to grant any same-sex couple with any form of health care was a violation of the equal protection clause of the state constitution,” says Faiella. And the second was that “the failure to recognize their marriage and grant equal benefits is in violation of human-rights law, which prohibits sexual- orientation discrimination, among other forms of discrimination, in employment, and other areas.”

The trial court dismissed the original arguments based “erroneously,” according to Faiella, on the findings of the recent Hernandez v. Robles case. “[The Hernandez case] was about whether or not same-sex couples have the right to marry in this state. It was not about the recognition of marriages legally entered into out-of-state.”

Wicks and the NYCLU appealed to the next judicial level, the New York Supreme Court Appellate Division Fourth Department, the geographical branch of the Appellate Division that oversees Western New York. Attorney General Andrew Cuomo submitted an amicus brief in support of the plaintiff, insisting the trial court’s decision should be reversed.

“This should be a simple case,” the brief states. “Under well-settled New York common law, marriages validly performed in other jurisdictions are recognized in New York, even if they could not have been validly performed in New York.”

“The marriage recognition rule dates back to the late 1800s here in New York,” explains Faiella, “and even further back than that, because some of the cases from the 1800s cite cases from England that date back centuries.”

There are two exceptions to the marriage-recognition rule: first, when statutory prohibitions (explicit laws against recognizing a certain type of marriage) are in place. Forty-one states have enacted laws prohibiting the recognition of same-sex marriage, known as Defense of Marriage Acts. New York has not. The second exception applies in cases when the marriage would be considered “abhorrent to public policy.” And Cuomo’s ammicus brief states: “Far from being abhorrent to public policy, recognizing same-sex marriages validly performed elsewhere is the declared policy of the state.”

In fact, in March 2004, the attorney general released an advisory opinion stating that same-sex couples’ out-of-state marriages were entitled to recognition in New York. The state comptroller’s office has been recognizing these marriages, for the purpose of retirement benefits, since October 2004, and in May 2007, the Department of Civil Service began recognizing same-sex marriages conducted out-of-state for state employee health-care benefits. Additionally, says Faiella, “New York City has been recognizing these marriages for a number of years. Buffalo, Albany, Rochester, different cities, Westchester County and other counties have been recognizing these marriages for years. There is simply no abhorrence to public policy.”

The appellate court agreed. Five judges decided unanimously in favor of Martinez: “It is adjudged and declared that the plaintiff’s marriage to Lisa Ann Golden in the Province of Ontario Canada is entitled to recognition in New York State.” For same-sex couples across New York, the court’s declaration rings one note nearer to wedding bells.

“There are so many couples who are already married, already coupled here,” says Yates. “Maybe they were married in Canada, maybe in Massachusetts, but they’re married. And the decision recognizes those families. It brings credibility to the commitment they’ve made to each other. It’s not about opening the floodgates to all of these new marriages. It’s about honoring these families who are already here, who are paying their taxes and buying new houses and doing the dishes and walking the dog, all the stuff that couples do, and have to do.”

In the wake of the Martinez decision, Gov. Paterson issued an executive memorandum, penned by governor’s counsel David Nocenti, to all state agency counsels, advising them that the Martinez decision is binding. The memo insists that all state agencies review their policies regarding spousal benefits for same-sex couples, and report the appropriate changes, in writing, by June 30.

“People are really excited,” beams Yates. “People are really happy to have, not just legislative movement, but really seeing our leader, the leader of the state, come out and say, ‘I’m going to actively work with the people that I direct to protect these families.’ ”

“The problem is,” she adds with chagrin, “we just don’t know what it means yet. It’s really exciting in the theoretical, but we don’t know what that means yet. For my wife and I, she works at a private employer. We were married in Canada, and now trying apply those rights, based on the recent court decision and based on Gov. Paterson’s directive, what does that mean for private employers? We just don’t know. We’re working on it, but they don’t know either. The employers are talking to their lawyers; no one knows. It’s exciting, but it’s still complicated.”

In some senses the law is firm and clear, says Faiella who, as a civil-rights attorney, is knowlegable about the legal details many same-sex couples are struggling to grasp. “The law applies, not just to state agencies, but to everybody,” he assures. “State agencies have been specifically advised of the law, and asked to let the governor’s counsel know what they’re doing to follow the law. But all employers, public employers, private employers, should be reviewing their policy, and figuring out which benefits are given to spouses and figuring out how they’re going to immediately provide those benefits to same sex-couples who are married.”

History in the making: Yates in front of the CDGLCC’s landmark brownstone.

Photo: Shannon DeCelle

However, the legal waters become murkier in the case of benefits regulated by federal law. The Employee Retirement and Income Federal Security act, which regulates a wide range of private benefit plans, has been found to preempt state human-rights law and state nondiscrimination law. “For those specific benefits regulated by the federal law, certain couples may not be able to get spousal benefits, if their plan is regulated by ERIFSA and the employer refuses to provide spousal recognition,” says Faiella. Private employers can still choose to provide spousal recognition in most of these situations.

“Many private employers around the state, are really doing the right thing, and we hope that more companies will follow suit.” In terms of public employers though, it couldn’t be any clearer. “They really need to do this,” Faiella insists. “And they need to do this immediately. They need to enact pro-recognition policies and announce these policies to their employees. They can’t delay. The law is very clear on this right now. It’s well established, and it’s statewide.”

Despite seemingly clear directives from the New York state Supreme Court, the attorney general and the governor’s office, the road to same-sex marriage recognition remains a bumpy one. The Alliance Defense Fund, a Texas-based “legal alliance defending the right to hear and speak the truth,” and one of the prime opponents to same-sex marriage, has been fiercely litigating in New York.

Representing New York taxpayers, the ADF filed lawsuits against the New York State Department of Civil Service, the Office of the Comptroller, Westchester County Executive Andrew Spano, and most recently Gov. Paterson, all for their marriage- recognition policies. The first three cases were dismissed by the courts, who upheld the Martinez decision. The lawsuit against the governor has yet to be resolved.

Repeated calls to the ADF were not returned. However, their views are clear. A pamphlet issued by the Christian-centered alliance states that “the Bible is clear on its teaching related to homosexual behavior. To act on such an impulse is sinful and both socially and personally destructive. . . . Same-sex ‘marriage,’ ‘civil-unions’ or ‘domestic partnter arrangements’ all accomplish one thing: the weakening of traditional marriage and the family.”

Although a poll conducted by the Empire State Pride Agenda indicates that the majority of New Yorkers are in favor of Gov. Paterson’s memo supporting the Martinez decision, opposition is not limited to the ADF.

“We still are, unfortunately, encountering certain employers or other entities, who are refusing to grant recognition,” says Faiella. “We’re working with them, we’re advising them, and we are, in some cases, considering litigation. It’s unfortunate. It’s a drain on resources, on organizations like the NYCLU. But if it’s what we have to do to get people to follow the law, and to get more families protected, then it’s what we will do. We’re looking forward to the day, though, when this will all become moot because we’ve passed the marriage fairness bill.”

The shift in marriage-recognition policy in New York, coupled with California’s recent decision to legalize same-sex marriage, has heralded great hopes for marriage equality in the LGBT community. In July 2007, the Marriage Equality bill passed in the New York Assembly with an 84-61, bipartisan majority. The bill had the support of then-Gov. Eliot Spitzer and currently, Gov. Paterson. In the debate on the Assembly floor, the bill’s sponsor, Assemblyman Daniel O’Donnell (D-Manhattan), spoke of his own hope to soon be able to marry his longtime partner and fiancé. “This law treats same-sex couples as if they have a spouse,” said O’Donnell, “which is what I believe I have.”

However, the similar Senate bill remains in the Judiciary Committee, and was never brought for vote during the Senate session. Cathy Marino-Thomas, executive director of Marriage Equality New York, an organization dedicated to securing marriage equality for same-sex couples, is one of many marriage-equality advocates who lay the blame on a single set of shoulders. “If [Sen.] Joe Bruno (R-Brunswick) could stop thinking that this was a dictatorship and see that it’s actually a democracy and allow the bill to come for a vote, we believe it would pass, making New York the third state with marriage equality in this country.”

Faiella agrees. “The reason why the marriage bill has never had a chance to be voted on by our state Senate is because our Senate majority leader has refused to let it out of committee. If you want to look at an undemocratic principle there, we have half of our Legislature supporting something, we have our governor behind it. And yet, our Senate won’t have a chance to even debate the bill, because one person won’t let it out of committee.”

Scott Reif, a press representative from Bruno’s office, explains simply, “The issue is not a priority of the Senate’s at this time. We are more focused on ways to provide property-tax relief, brownfield reform, a number of other priorities.”

The CDGLCC represents a seven-county area, including Rensselaer and Saragtoga counties, which are represented by Sen. Bruno. While marriage equality may not be a priority for the Senate, or the senator, Yates is emphatic that it is a priority for constituents. “I have talked to families that live in his district who this is truly a priority for. I know that there are families in Sen. Bruno’s district who would jump at the chance to talk to him about why their families need these protections. They already bought their homes in Saratoga Springs, and commute into Albany every day with everybody else. Of course it is a priority in their lives to protect their kids, or protect their homes. . . . There are families everywhere. In every district. And they need their protections.”

Swirling speculations about the results of the upcoming Senate elections, and Bruno’s announcement Monday that he will not run for reelection, have spurred the hopes of marriage-equality advocates.

“I think we are confident that when our Legislature can consider the marriage fairness bill as a full Legislature, that we’re going to move in the right direction,” says Faiella. “While I’m incredibly pleased that the courts have recognized that the marriage-recognition rule applies to a same-sex couple’s out-of-state marriage, I think we really need to focus on getting the marriage bill passed. Having couples leave to get married elsewhere, it’s really sort of sad, because it means they can’t get married here, and that’s really the ultimate goal.”

The ADF, and other opponents of marriage equality, insist that permitting same-sex marriage would be “allowing a radical few to drastically and permanently change the institution of marriage for the rest of us.” Marriage-fairness advocates, however, hold that civil-rights laws exist to protect the rights of the minority. In fact, when the U.S. Supreme Court lifted the last interracial-marriage bans in 1967 with their ruling in Loving v. Virginia, statistics indicate that 78 percent of the American population was opposed to the decision.

Civil unions have been discussed as a “separate but equal” alternative to same-sex marriage. But, legally, the two comittments are far from equal. “There is a legal significance to that word,” says Faiella. “A civil union currently has not been held by any court to fall into the same category. For the purpose of marriage-recognition cases, a civil union has never been able to qualify as a marriage, strictly because of its nomenclature.”

“When you say someone is your husband or someone is your wife, everyone knows what that means. I have tried to explain civil unions to people who don’t understand them, and it’s not easy,” says Marino-Thomas, who, through Marriage Equality New York, dedicates significant time to clearing up the misconception that same-sex marriage and civil unions offer the same protections. “I’m happy that we’re not discussing civil unions on any level in New York state. I shudder to even mention the word around anybody,” she adds firmly.

Opponents, such as the ADF, fear that legalizing same-sex marriage would force religious institutions to conduct marriages they do not support, and that refusing to conduct same sex-marriages would leave them vulnerable to litigation. The proposed Marriage Equility Bill, however, clearly states that religious institutions have, and always have had, the right to marry only whom they choose. “Marriage is a two-step process in New York state,” says Yates. “You have to go to city hall and get a license, and then you have to go get it solemnized [by a religious leader or political offical]. That’s the two-step process.” Yates chuckles—when looking for an officiant five years ago, a lesbian rabbi told the couple that she couldn’t marry them because they weren’t Jewish. “If you’re Jewish you can’t get married in a Catholic church, and the church can’t be forced to do so,” says Yates.

The same holds true of same-sex marriages. The bill would simply grant same-sex couples the right to be issued marriage liscences, and religious and political officals the authority to conduct legal same-sex marriages.

“There are already hundreds of couples in the Capital Region who are committed to each other, and by all accounts, and by their neighbors accounts, and by their families accounts, are married,” Yates reminds gently. “They’re committed. They have a house. They live their life. So, really marriage isn’t this new concept that the state is going to do, or that crazy Califorina just passed. It’s really simply recognizing what people are already doing. . . . Our job is to highlight the love of those folks. That’s really what it’s about. That’s what marriage is about. It’s about love.”

Yates pulls a tattered wedding photo from her wallet: She is radiant in white satin, clutching a bouquet of roses, a tiara perched in her blonde hair; she and her wife are both beaming as only newlyweds can. She is hopeful that the next Sentate will pass the Marriage Equality Act. Hopeful that she and Erica will be able to celebrate their five-year wedding anniversary with a legal wedding in their home state. “Next year, that’ll be the plan. . . and it will be our 10-year anniversary of being a couple—so that would be great. We could finally have another wedding. A wedding at home in New York!”

For same-sex couples trying to understand their rights, The NYCLU has created a marriage Q&A, which helps to answer many significant questions faced by gay and lesbian couples in the changing legal landscape. The Q & A can be found at http://www.nyclu.org/marriagefaq.


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