Legal Advice from Yetta G. Kurland

Legal Advice from Yetta G. Kurland

On the eve of the SCOTUS decision, a look at what we’ve accomplished.
On the eve of an historic decision by the United States Supreme Court regarding the freedom to marry the person of your choosing, I am struck by how much we’ve accomplished in such a short time. Just over a decade ago, equal marriage rights shot to the forefront of public and legal debate when Massachusetts’ highest court handed down a decision granting same-sex partners the right to marry in that state. A few months later, in 2004, the mayors of San Francisco and New Paltz briefly extended the right to marry to same-sex partners on the grounds that marriage is a fundamental right.

The following year, the court in New York came to the same conclusion when then-Supreme Court Justice Doris Ling-Cohan handed down her decision in Hernandez v. Robles, which extended—or at least attempted to extend—the right to marry the partner of your choosing to same-sex couples in New York. In her decision, Ling-Cohan traced the history of marriage laws, from their beginnings in England, through the civil rights cases of the 1960s, and ruled that marriage, far from being a “stagnant institution,” is adaptive and evolving. Justice Ling-Cohan found that nothing in the laws of New York State prohibited marriage between partners of the same sex—indeed the due process and equal protection provisions of the New York Constitution demanded it. She ruled that the right to marry is so fundamental as to be protected against interference by the state. These are largely the same conclusions that subsequent courts have reached, but when Justice Ling-Cohan was writing her decision, she only had the recent Massachusetts case for precedent.

The excitement over the Hernandez decision was unfortunately short-lived. The decision was stayed pending an appeal brought on by Mayor Michael Bloomberg, using the City of New York’s attorneys, and by 2006 it was overturned by the Court of Appeals. It wasn’t until 2011 that New York passed legislation, shepherded through the Assembly by the newly-elected Governor Andrew Cuomo, extending equal marriage rights to same sex couples.

The momentum which the movement has gained, and continues to gain, is unstoppable, whatever the Supreme Court says. My hope is that, once the marriage question is finally settled, we can focus that same energy on other causes, and enjoy the same rapid success we’ve achieved with marriage equality on issues like transgender equality, employment non-discrimination, and queer youth.

On June 17, 2015, Hon. Doris Ling-Cohan and other marriage equality advocates will be speaking on a panel regarding the ten-year anniversary of the Hernandez decision. For more information, go to nycla.org.