Hopes high as gay marriage decision is ‘likely’ this week

By Andy Humm

Roberta Kaplan, the dynamic attorney who was one of the leads arguing for the right of same-sex couples to marry before New York State’s Court of Appeals in May, said that a decision in the case was “likely” to come down Wed., July 5, or Thurs., July 6 — unless the six out of seven high court judges who heard it are tied 3 to 3.

On Wednesday morning, New York City’s Law Department issued a statement saying the decision was likely to come down on Thursday.

The day the decision is published, the Empire State Pride Agenda has scheduled rallies in Sheridan Square at 6 p.m. and at other venues across the state to either celebrate a historic victory or begin what could be a long legislative battle to open marriage to gay and lesbian couples. Even if a full victory occurs, the immediate political focus would probably shift to protect the court ruling from any effort by opponents to amend the state Constitution.

Since Judge Albert Rosenblatt recused himself in this case — because, as first reported in Gay City News, of his daughter’s involvement as an attorney in writing a friend of the court brief for Lambda Legal’s marriage challenge in New Jersey — a 3-3 tie is possible. In the event of a tie, Chief Judge Judith Kaye, with the consensus of the other high court judges, picks a judge from the two midlevel Appellate Divisions that have not yet decided gay marriage cases — the Second Department in Brooklyn or the Fourth in Rochester. The Brooklyn court heard an appeal in a fifth same-sex marriage case on March 28, but has not yet rendered a decision.

The tie-breaking judge would then review briefs and watch the tape of oral arguments, and the judges would come together for a final determination of the case.

Kaplan reviewed the case aided by video with an audience at the L.G.B.T. Community Center on W. 13th St. in the Village on June 29. Asked how she saw the case resolving, she said, “I’m not in the business of handicapping. While judges hold things close to their chests, the arguments of the city and state were weak and I think the judges appreciated that and we will prevail.”

Kaplan, with the firm of Paul Weiss, was the lead attorney on a statewide challenge to the exclusion of gay couples from marriage brought with the American Civil Liberties Union’s Lesbian and Gay Rights Project. They lost at the trial level in State Supreme Court and before the Third Department in Albany.

Lambda Legal, represented by Susan Sommer, won against New York City at the trial level before Justice Doris Ling-Cohan in early 2005, but that decision was successfully appealed before the First Department in Manhattan by Mayor Michael Bloomberg. Two other similar cases, including one in Ithaca, were also before the Court of Appeals on May 31.

The Appellate Division is full of what many legal observers bluntly call “right-wing hacks” appointed by Republican Governor George Pataki, who leaves office after 12 years at the end of 2006. Judges on the seven-member Court of Appeals are appointed for 14-year terms, and there are still three appointees of Democratic Governor Mario Cuomo onboard.

While Kaplan would not rate the chances of winning the vote of any individual justice, most observers believe that Judges Kaye, 67, and Carmen Beauchamp Ciparick, 63 — both Cuomo appointees — lean toward the plaintiffs. Judge George Bundy Smith, 68, the only African-American on the court — also a Cuomo appointee — is a little harder to read. He has a history of voting with pro-gay majorities on the court, but kept raising the idea of granting gay couples equal rights through civil unions, the intermediate position adopted by the Vermont Legislature in 2000 when that state’s Supreme Court fell short of directly ruling for same-sex marriage.

During oral arguments, Kaplan answered the civil-unions proposal by saying it would make gay couples “second-class citizens” and “create a stigmatization.”

Bundy Smith is seeking to be reappointed to the court when his term expires on Sept. 23, but he would only be able to serve another year before reaching the mandatory retirement age of 70. It would certainly antagonize Pataki, now considering a run for the 2008 Republican presidential nomination, if the judge approved of gay marriage. But most observers believe that there is almost no chance that Pataki would forgo the chance to plant a conservative judge on the high court for the next 14 years just to give Bundy Smith another year — at which time Democrat Attorney General Eliot Spitzer is likely to be the one doing the appointing, assuming he wins the governor’s race. (Like Bloomberg’s corporation counsel, Spitzer’s office was at the Court of Appeals in May to oppose the same-sex plaintiffs.)

Assuming that Bundy Smith adopts full support for same-sex marriage, the question remains, who is the fourth vote? If these three Cuomo appointees are the only pro-marriage votes, the tie-breaker would have to come from the heavily conservative Appellate Division.

On the other hand, what are the chances that one of the Pataki appointees on the high court could come out in favor of gay marriage?

Judge Victoria A. Graffeo, 53, of the Court of Appeals did not demonstrate any sympathy to the plaintiffs during orals and asked a question widely thought of as off-the-wall — why sisters living together and raising children should not be given the benefits of marriage if gays are.

Judge Susan P. Read, 58, was even harder to read.

That means the best hope for the gay and lesbian plaintiffs may be Judge Robert S. Smith, 61, a former law partner at Kaplan’s firm, and the Court of Appeals’ newest member. He is considered an iconoclastic conservative and libertarian and he aggressively questioned both sides in this case, displaying little patience for arguments that procreation wasn’t central to marriage and demanding more specific “studies” on how children fare in homes headed by gay parents versus heterosexual parents.

“The attorney general and city were very careful about the arguments that they made,” said Kaplan, noting that Spitzer and Bloomberg are public supporters of same-sex marriage even though they were in court trying to keep it as it is. They were especially reluctant to say that gay people were anything but good parents or that any harm to society would result if same-sex marriage were permitted.

“You are not helping any children in New York by excluding same-sex couples from marriage,” Kaplan told the court. On Thursday, she said, “Even Judge [Robert] Smith doesn’t want to say it is bad for gay couples to raise children.”

The decision of the high court in Arkansas this week overturning a regulation banning gay people from acting as foster parents reflects the growing unease among judges in maintaining such a position on gay parenting.

The city and state’s argument that marriage ought to be encouraged among heterosexuals, who are the only couples who can “spontaneously procreate” — that is, have children unintentionally, and by implication, unthinkingly — to insure that children are not born out of wedlock, got the dander up of West Side Democratic Assemblyman Daniel O’Donnell, one of the plaintiffs. According to Kaplan, O’Donnell commented after the orals, “If Mayor Bloomberg wants to get married again he should have a fertility test.”

“If we lose this case,” Kaplan said, “there will be a lot in the decision about the Legislature” as the arbiter of marriage laws.

If the plaintiffs lose entirely, estimates from public officials on how long it will take to pass a same-sex marriage bill vary widely from one to 10 years. The Democratic-dominated Assembly has not even held hearings on a marriage-equality bill introduced years ago by Chelsea Democrat Richard Gottfried. In the Republican-led Senate, Upstate Majority Leader Joe Bruno is still stalling an anti-bullying bill because it would include protections against harassment toward transgendered, transsexual and gender-questioning individuals — never mind considering West Side gay Democrat Tom Duane’s marriage bill.

Spitzer has pledged to introduce a gay marriage bill if elected governor, but he is also the one who told Nyack Mayor John Shields, a plaintiff in the marriage case on appeal before the Second Department, that it would take 10 years to pass.

If the Court of Appeals orders the Legislature to equalize benefits but leaves the door open to civil unions, that is the option most likely to win support at the current time, just as it did in Vermont six years ago.

Of course, getting the New York State Legislature to do anything, even under a court order, is never assured as seen in the Campaign for Fiscal Equity case mandating more resources for the New York City public schools — still not done several years after the Court of Appeals ordered it.