Yay New York!

Judge Strikes Down New York's Ban on Same-sex Marriage.

By SAMUEL MAULL
Associated Press Writer

February 4, 2005, 4:13 PM EST

NEW YORK -- A Manhattan judge declared Friday that a state law that forbids same-sex marriage is unconstitutional _ a first-of-its-kind ruling in New York that if upheld on appeal would allow gay couples to wed.

State Supreme Court Justice Doris Ling-Cohan ruled in favor of five same-sex couples who had been denied marriage licenses by the city.

The couples, who have been together for periods ranging from three years to 23 years, brought a lawsuit arguing they were denied due process and legal protections available to heterosexuals. The judge agreed and said the New York City clerk may not deny a license to any couple solely because the two are of the same sex.

"Under both the federal and New York State constitutions, it is beyond question that the right to liberty, and the concomitant right to privacy, extend to protect marriage," Ling-Cohan wrote in a 62-page decision.

But the judge also stayed her ruling, which applies only in the city, for 30 days. The city Law Department issued a statement saying only, "We are reviewing the decision thoroughly and considering our options."

Ling-Cohan ordered a copy of her decision sent to the state attorney general, who was not involved in the case. Calls to Attorney General Eliot Spitzer's office were not immediately returned.

The ruling could apply statewide if upheld by the Court of Appeals in Albany.

Susan Sommer, Lambda Legal Defense Fund lawyer who presented the case for the five couples, called the ruling "historic" and said it "delivers the state Constitution's promise of equality to all New Yorkers."

"The court recognized that unless gay people can marry, they are not being treated equally under the law," Sommer said. "Same-sex couples need the protections and security marriage provides, and this ruling says they're entitled to get them the same way straight couples do."

One couple, Mary Jo Kennedy and Jo-Ann Shain, said they were very happy about the ruling and believed it would offer their family increased legal protection. They have been together 23 years, registered as domestic partners in 1993, and have a 15-year-old daughter who is Shain's biological child.

"We're just overjoyed," said Shain. "We didn't think it would ever happen."

Kennedy said she wants to marry Shain as soon as possible. "I can't wait," she said. "We went to buy a (marriage) license in March 2004 and couldn't get it. That's what started this whole thing."

Shain said, "We're looking forward to trying to buy another one, and this time actually getting it."

In her ruling, Ling-Cohan said that while the Domestic Relations Law does not "expressly" bar same-sex marriage, specific sections clearly express the legislature's assumption that the parties to a marriage will be a man and a woman.

Because this assumption has provided the basis for blocking same-sex marriages in New York State, the judge declared the section unconstitutional and, in effect, ordered a redefinition of terms in the statute.

The words "husband," "wife," "groom" and "bride" in relevant sections of the Domestic Relations Law "shall be construed to mean 'spouse,"' the judge wrote, and "all personal pronouns ... shall be construed to apply equally to either men or women."

Mathew Staver, president of Liberty Counsel, an Orlando, Fla., group opposing gay marriage, said he was "disappointed" by the decision. "Redefinition of a law's terms is for the legislature to do, not for a judge. She's an activist judge legislating from the bench."

In her decision, Ling-Cohan cited and relied on rulings from the last century that barred, and then, permitted interracial marriages.

The judge noted that one plaintiff, Curtis Woolbright, is the son of an interracial couple who moved to California in 1966 to marry. California then was the only state whose courts had ruled that interracial marriage prohibitions were unconstitutional.

Some courts, Ling-Cohan wrote, "rejected the rights of adults to choose their marital partners based on outmoded prejudices that are now recognized as illegitimate grounds for government action."