Editor's Note: The following Report was issued jointly by several committees of The Association of the Bar of the City of New York in May 2001. In it, the Association supports marriage rights for same-sex couples in New York, and maintains that these rights exist now and should be recognized promptly under state law. While focused on New York, the Report's thorough analysis of federal and state constitutional, statutory, and comity issues is relevant to other jurisdictions. Since the Report, the relevant laws in New York, the United States, and the world have been changing quickly and dramatically. Nonetheless, the Association's arguments here, in its most recent analysis of the status of same-sex marriage in the state, remain compelling. To update readers, we have included in this issue a detailed discussion of recent developments by the Project Coordinator of the Report. **
There is currently a national debate over the right of lesbian and gay couples to enter into state-sanctioned marriage. Much of this debate stems from Vermont's recent legislation permitting same-sex civil unions. Lawsuits in Hawaii and Alaska attacking the constitutionality of prohibitions on same-sex marriage have also fueled the debate. In addition, many states are currently considering, and some have adopted, legislation attempting to prevent recognition of same-sex marriages performed in sister states. Most notably, in 1996, Congress enacted the Defense of Marriage Act (DOMA), which could give states that enact such legislation further ammunition in their efforts to deny recognition to same-sex marriages that may be legally sanctioned in sister states.
The constitutionality of measures denying recognition of same-sex marriage is in doubt, especially in light of the United States Supreme Court's apparent shift in its consideration of gay and lesbian rights. Fifteen years ago, the Court found that a state sodomy statute enforced only against homosexuals violated no constitutionally protected rights. (1) In contrast, in 1996, the Court found that by subjecting one group to a disadvantage that no other group had to suffer, a state constitutional amendment that barred anti-discrimination measures protecting lesbians and gay men violated the United States Constitution's Equal Protection Clause. In so doing, the Court took the remarkable step of invoking the landmark dissent in Plessy v. Ferguson in the opening paragraph of its decision: "[T]he Constitution 'neither knows nor tolerates classes among its citizens.' Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake." (2) The Court made clear that it would not countenance a legal distinction that raised the "inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." (3)
This Report, which is an update of a report issued by the Association in 1997, (4) addresses the issue of whether same-sex couples have the right to marry in New York and obtain the legal rights afforded to opposite-sex couples. In addition, it addresses the ancillary issue of whether New York should recognize same-sex marriages and legal unions entered into in sister states and abroad. This Report takes the position that same-sex couples currently have the right to marry. It argues in Parts I.A, I.B, and I.C that same-sex couples should be permitted to marry in New York because New York's marriage laws are gender-neutral, because same-sex marriage is entirely consistent with New York's public policy, and because a strong argument can be made that the Equal Protection Clauses of both the federal and New York constitutions require that the fundamental right of marriage be available to all couples of suitable capacity regardless of their sex. (5) Failing a prompt recognition of this right, as for example through an opinion of the Attorney General, or legislative or judicial action, this Report argues in Part I. …