The Shame of 38

Professor Sonia Katyal in The National Law Journal, December 14, 2009

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Darren Rosenblum and Sonia Katyal

By a vote of 38-24, the New York state Senate has decided to uphold marriage discrimination in New York state. How did we get here? In 2006, New York's highest court issued one of the most derided decisions in recent memory in Hernandez v. Robles. In that ruling, Judge Robert Smith's decision denied the right to marriage equality. He argued in part that marriage was about protecting children, and that heterosexual families could be formed accidentally and therefore were more fragile and needed the protection of the institution of marriage. Chief Judge Judith Kaye called the decision a "mishap," and several legal commentators have ridiculed the irrationality of this decision.

But we New Yorkers believed that our progressive state would not be thrown into the wilderness by a sorely mistaken Court of Appeals. Our leaders expressed support for marriage, in every body but the Senate. In 2008, with the strong financial support of the LGBT community, the Democrats took the state Senate. Yet it was a pyrrhic victory, as the Senate became the laughingstock of a nation inured to legislative malfeasance from California to Illinois.

AN EMOTIONAL DEBATE

In the dramatic debate that played out on Dec. 2, marriage-equality supporters conveyed the urgent justice of the business before the Senate. Perhaps most striking was the speech by Sen. Ruth Hassell-Thompson, who had long opposed marriage equality. She told the story of her gay brother who had left the country to move to France because he felt rejected by our homophobic society, and she declared she would support the bill. Opponents made points devoid of reason, resorting to circular definition of marriage as between a man and a woman or avoiding speaking against the bill. Sen. Hiram Monserrate, who was recently convicted on a misdemeanor charge of assaulting his girlfriend, voted against equality despite his commitment to support it. He and many other heterosexual abusers still have the right to marry and yet we do not.

It is an insult to our dignity and that of our families. The Senate shamed our state by failing to establish the right of New Yorkers to marry without regard to sex, preventing our marriages, and incidentally depriving the state of substantial revenue from such weddings and increased tax revenue from newly married couples.

New York City has the largest lesbian and gay population of any U.S. city. It is the birthplace of the modern LGBT movement and the home to dozens of national and international LGBT civil rights and religious groups. We are in every industry from law to fashion, from public service to finance. We contribute enormously to the creativity and the prosperity of New York. Heterosexual New Yorkers know this — that's why recent polls indicate that a majority of New Yorkers support ending marriage discrimination. But the state Senate disregarded the civil rights of a large and deserving minority for the ignorant homophobia of the past.

The vote may encourage those who oppose our rights. Many employers have chosen to ignore same-sex marriages from other jurisdictions in spite of clear legal precedent and an executive order by Gov. David Paterson. The moral and economic effect of this is staggering. Lifelong partnerships prove meaningless for obtaining health insurance or any of the numerous public benefits that come with marriage. Even those of us who have married elsewhere are second-class citizens. We pay the same high taxes, only to support the rights of our straight fellow New Yorkers.

The Senate had an opportunity to rectify this injustice, and in shirking its duty, it failed all New Yorkers. New York overturned its sodomy law in 1980 — 23 years before the U.S. Supreme Court followed suit, and it established reproductive choice for women long before Roe v. Wade. Yet the Senate ignored this long, proud tradition in the forefront on human rights. Its members chose to put New York behind Connecticut, the District of Columbia, Iowa, Massachusetts and Vermont in equality.

The vote, had it gone the other way, would have confirmed all that New York is — a model of the diversity that has made this state, and this country, thrive. The Senate's cowardice obligates lawyers to step into the breach. The New York State Bar Association, which has supported marriage equality for several years, has already condemned the Senate's actions. As lawyers, we must not simply profit from helping our clients but direct the law toward justice.

Darren Rosenblum is a professor at Pace Law School. Sonia Katyal is a professor at Fordham University School of Law.