Several issues were left hanging when
the state legislature adjourned last week. But there is probably one bill you
won’t see on the lists of things yet to be decided: the Defense of Marriage
Act.
DOMA
is a bill, not yet voted on, to outlaw the marriage of gay or lesbian couples
in New York State. And though it might be lost in the talk over the state
budget, the war over who can legally marry, and who can prevent marriage, is
waging.
“It
is a LGBT issue, but on a broader scale it isn’t,” says Lynn Tavernese,
community relations director at the Gay Alliance of the Genesee Valley. “It’s really everyone’s issue. Do we have the
right to impose a second-class citizenship on people? It should be everyone’s
fight, not just the gay community’s.”
DOMA,
in its various iterations, is not new. The federal government passed a national
Defense of Marriage Act in 1996 — which denied same-sex couples federal
benefits and gave states the right to decide their own positions. Forty US
states have passed some sort of legislation restricting legal marriage to
heterosexual couples. New York State’s version of the bill has been languishing
in committee since its drafting in 1999.
But
the Gay Alliance of Genesee Valley says that there is new reason for concern:
The bill’s sponsorship in both the Senate and the Assembly has been rising, and
the list includes some local legislators. Senator George Maziarz is a sponsor,
and Senator Jim Alesi signed on June 16.
When
news of Alesi’s sponsorship reached the Gay Alliance, it launched an
invigorated campaign against the bill, urging voters to voice their opposition.
“It’s
really disappointing that Alesi would co-sign this bill,” Tavernese says.
“Because what he’s actually done is turn his back on 10 percent of his
constituents. Right now they’re saying for every one call that is against
voting for DOMA there are 10 calls from the religious right that are pushing
it. We have to call Alesi to say ‘shame on him, we don’t want it.'”
DOMA did not
reach the floor for a vote before the legislature adjourned, but that doesn’t spell
victory to the bill’s opponents.
“If
they come back to talk about the budget, they could vote on DOMA,” Tavernese
says. “If they go back into a session they could bring it up again. The most
important thing is that we can’t become complacent. It’s still alive and could
go.”
Ross
Levi, director of public policy and governmental affairs with the Empire State
Pride Agenda, says the same.
“The
bill remains introduced and will be alive up until January 1, when all bills
die. Technically, whenever Albany is in session the bill can be acted upon. I
think the political pressure behind the bill may go down some the closer we get
to the [presidential] election. But we must remain vigilant.”
Levi,
who works in Albany, wants the LBGT community to be at least as vocal as the
opposition.
“There
was a group of about 400 people here a few weeks ago, in Albany, rallying for
passage of DOMA,” he says. “It would be a mistake for anyone to be complacent
and assume DOMA is dead for good.”
Neither
Alesi nor Maziarz could be reached for comment on their support of the bill.
And in a recorded statement on Alesi’s website, he prioritizes resolving the
budget over legislating on gay marriage.
“But
as it stands right now,” his message says, “I believe that the issue of
marriage, at least in New York State, is defined as between a man and a woman.
And I think that’s the position we have to maintain, until and unless there is
an active legislation or judicial approach to this issue.”
Keeping
marriage between a man and a woman — a phrase from the anti-gay-marriage camp
— makes it sound like DOMA would keep marriage neat and tidy. But proponents
of gay marriage say the legislation is an intrusion on civil rights and
unnecessarily and unfairly complicates the lives of same-sex couples who wish
to be married.
The
text of the New York State DOMA bill says that “a marriage or union is
absolutely void if contracted by two persons of the same sex, regardless of
whether such marriage or union is recognized or solemnized in another
jurisdiction.”
Nearly
44,000 New York State same-sex households identified themselves in the last US
census. “There were some in every county here in New York State, so we truly
are everywhere,” Levi says. “One in four of those families are raising
children, with an average of two children per household.” And he believes the
statistic is underreported.
If
DOMA became law, those families “would be told, officially, in law, that they
are not worthy of the same rights and responsibilities that every other family
in New York gets with marriage,” Levi says.
A
couple is imbued with 700 rights and responsibilities when they are married in
New York State, Levi says. These rights and responsibilities govern the
couple’s legal status in meticulous and sometimes arcane detail. Rights range
from the right to make medical decisions for a spouse, the right to adopt, the
right to get death and other benefits, the right to visit each other in the
hospital, and the right to inherit a liquor license. Responsibilities under the
law include divorce, child and spousal support, and reporting full family
income.
“Marriage
affects just about every section of NY law,” Levi says.
When New Paltz
Mayor Jason West started marrying same-sex couples in March, Attorney General Eliot
Spitzer issued a statement advising him and other officials to stop. According
to Spitzer’s interpretation of the law, the state is not allowed to issue
marriage licenses to same-sex couples. But, also according to Spitzer, New York
State court precedent dictates that same-sex marriages and civil unions
performed in other states should be recognized in New York. Even further: “The
exclusion of same-sex couples from eligibility for marriage, however,” Spitzer
wrote, “presents serious constitutional concerns.”
Levi
sees this as evidence of New York’s “long history of recognizing marriages from
other jurisdictions, even ones that would be illegal here.”
Vermont
performs civil unions for same-sex couples, and a New York State trial court
recently upheld the legality of a Vermont civil union. Massachusetts is the
only state that performs marriages for same-sex couples. But there is some
question as to the legality of those marriages in New York State.
Governor
Mitt Romney of Massachusetts recently allowed the marriage of same-sex couples
in his state with one, fairly major, limitation. Citing a 1913 law originally
intended to prevent interracial marriages, Romney has said that same-sex
marriages that are void in a couple’s home state are also void in
Massachusetts. So, according to the Massachusetts governor, no same-sex couple
from any of the other 49 states (none of which perform same-sex marriages) can
be legally married in Massachusetts. (Some Massachusetts city clerks have
chosen to ignore him on this point.)
The
question that remains, Levi says, is whether same-sex marriages are actually
void in New York. One New York court and the Attorney General have said that
same-sex marriages performed elsewhere need to be recognized by the state.
“How
could it be recognized and void?” Levi says.
Marriages
performed in Canada are more often considered valid by New York, Levi says,
because Canada has no legal restrictions on same-sex marriages. Five state
jurisdictions recognize Canadian same-sex marriages and allow couples married
in Canada access to those jurisdictions’ marriage rights. Rochester is one of
them.
This
is where DOMA comes in: If it became law in New York State, the legality of all
same-sex marriages, regardless of where or when they were performed, could be
up for debate.
“DOMA
could very well counter the Attorney General’s decision and that trial court’s
decision that a same-sex couple that had been married in Toronto is fully
married here,” Levi says.
But
this is all new ground, Levi says. These decisions will most likely need to be
taken to the courts.
Opponents of
DOMA do not believe the bill has a strong chance in the Assembly, even if it does
pass the Senate.
“I
have a hard time imagining the Assembly taking on a bill like this,” says
Assemblyman Joe Morelle. “We have colleagues we value very highly that are gay
or lesbian.”
Morelle
says he hopes that “over time this kind of legislation will be unnecessary.”
Tavernese
agrees that DOMA passing in the Assembly is unlikely. But she says that right
now, “It’s really a wait and see.” As part of Rochester Pride Week, a Gay
Alliance-organized Toronto Marriage Day Trip, via the fast ferry, will go off
as planned on July 15.
This article appears in Jun 30 – Jul 6, 2004.
