The New York Times


Spitzer's Opinion Mixed on Status of Gay Marriage


Published: March 4, 2004

ALBANY, March 3 New York State law requires same-sex marriages that are legally performed in other states to be recognized as lawful in New York, but does not now permit such marriages to be performed in the state, Attorney General Eliot Spitzer said on Wednesday in a legal opinion.

Mr. Spitzer said the state's marriage laws, recognizing only unions between a man and a woman, raised "serious constitutional concerns" that would ultimately have to be resolved by the courts. Until the courts ruled, he said, same-sex couples could not be legally married here.

He said his opinion that the state was legally sound in withholding marriage licenses was intended to try to halt the growing push by those who are seeking to change the law by performing same-sex marriages. "One of the messages I was trying to send was: Don't do it," said Mr. Spitzer, a Democrat who is widely discussed as a possible candidate for governor in 2006.

The overall legal opinion was nonetheless hailed by gay-rights groups as "monumental," and it set the stage for gay couples in New York who have been married elsewhere to begin challenging the state to grant them the privileges of marriage.

It is also almost certain to set off a wave of lawsuits in the state, sending the issue to the courts: exactly where lawmakers, advocates and lawyers had long predicted it would be resolved.

Mr. Spitzer's opinion, unusual for both the speed with which it was produced and the intense interest it generated, capped a day in which the issue of same-sex marriages continued to roil both the state and country. The mayor of New Paltz, a village in upstate New York, vowed to defy the law, as did another upstate mayor. Protesters stood on the steps of City Hall in New York City and demanded that Mayor Michael R. Bloomberg take a stand on the issue.

New York's governor, George E. Pataki, a Republican, said in strong terms that he personally believes marriage is between a man and a woman. In the state Capitol, lawmakers held a forum on legislation to make same-sex marriages legal.

In Washington, lawmakers debated the wisdom of a constitutional amendment banning gay marriage, while advocacy groups on both sides of the issue staged news conferences. At the same time, in Portland, Ore., county officials issued dozens of licenses to gay couples after deciding that Oregon law allowed the unions.

It was only a week ago that President Bush, saying the union of a man and a woman is "the most fundamental institution of civilization," called for a constitutional amendment to ban gay marriage.

His announcement came after a Massachusetts court decision that paved the way for same-sex marriages to occur there, and after the mayor of San Francisco sought to change state law by granting licenses and performing same-sex marriages.

Mr. Spitzer was drawn into the controversy last Friday after the mayor of New Paltz, Jason West, began performing marriage ceremonies for people who did not have marriage licenses. The State Health Department has refused to grant the licenses, saying New York's law expressly forbids it.

Mr. Spitzer concurred.

"It is our view that the Legislature did not intend to authorize same-sex marriage," the opinion said. According to that reading of the law, Mr. Spitzer said, the state is right not to issue marriage licenses, and the ceremonies already performed should be voided.

The opinion, which was signed by Caitlin Halligan, the solicitor general, but released by Mr. Spitzer at a Manhattan news conference, also clearly states, "The exclusion of same-sex couples from eligibility for marriage, however, presents serious constitutional concerns."

Mr. Spitzer has built up a national reputation by pursuing high-profile cases against corporations and the securities industry. He has made it clear he personally believes that same-sex marriage should be allowed, but that in acting as attorney general, he must separate his personal beliefs from his duties as attorney general.


In the 28-page analysis, which cites dozens of court cases from Hawaii to Vermont, Mr. Spitzer struck a decidedly nuanced tone. While the opinion is not legally binding, it will certainly help frame the debate, lawmakers and advocates for gay rights said.

Many gay advocates said Mr. Spitzer's reading of the current law was not nearly as important as his finding that New York should, based on legal precedent, recognize same-sex marriages lawfully performed in other jurisdictions. In fact, before the events in New Paltz, many gay rights advocates thought this was going to be the avenue through which New York's marriage laws would be challenged.

"Today in New York, one of the most incredible steps occurred," said David Buckel, marriage project director for Lambda Legal. "New York State became the first state in the nation to clarify that same-sex marriages performed out of state will be respected here."

Mr. Buckel said there are several hundred gay couples in New York who were married legally in Canada, where such unions are allowed in two provinces.

Mr. Spitzer, in the opinion, said that "whether the domestic relations law permits same-sex marriages performed in New York has no bearing on whether New York will recognize as spouses those parties to a same-sex marriage validly performed under the law of other jurisdictions."

New York is one of 12 states that did not follow the federal government's lead and adopt a law that would expressly forbid same-sex marriages. Of the 12, it is the first whose attorney general has said his state should recognize same-sex marriages performed in other jurisdictions, advocates and aides to Mr. Spitzer said.

Dennis Poust, spokesman for the New York State Catholic Conference, vowed to ratchet up the pressure on legislators to pass a law barring recognition of same-sex marriages performed elsewhere. "We don't agree with that part of the opinion at all," he said.

Mr. Spitzer, in an interview, said the most relevant court case on the matter as far as New York was concerned is Langan v. St. Vincent's Hospital, which was decided by the New York State Supreme Court in 2003 but is still being appealed.

In that case, the court concluded that a party in a Vermont "civil union" must be treated as a "spouse" for purposes of New York's wrongful death statute.

While the debate over gay marriage at times seems like a struggle over semantics, there are substantial health, tax and other benefits involved.

Mr. Spitzer's personal support for same-sex marriages has put him at odds with Governor Pataki. Asked Wednesday about the subject before Mr. Spitzer's legal opinion was released, Mr. Pataki said: "I believe that marriage should be between a man and a woman. That's my personal opinion as well as the law of the state."

In the opinion, Mr. Spitzer relied largely on historical precedent in his argument for reading that the state's Domestic Relations Law, or D.R.L., as applied to only a man and a woman.

"While the text of D.R.L. does not expressly bar marriage of same-sex couples, the inclusion in the D.R.L. of gender-specific terms to describe parties to a marriage, as well as historical context of its enactment, indicates that the Legislature did not intend to authorize same-sex marriage," the opinion says. It notes the use of the words "husband" and "wife" as well as "bride" and "groom."

Mr. Spitzer notes that the original law was enacted in 1896, and its silence on the issue of same-sex marriage "is presumably due to the apparent lack of any practice of same-sex marriage at the time."

Even as Mr. Spitzer laid out his interpretation of the law, and the governor condemned those he deemed in violation of it, another small-town mayor said he would begin solemnizing marriages between gay couples, starting on Thursday.

Speaking before a Senate committee in Albany, Mayor John H. Shields of Nyack, a village in Rockland County, said he felt compelled to act. He likened the marriages to acts of civil disobedience by women in the suffrage movement or by blacks during the civil rights movement. "All I can say is historically I am in good company," he said.

After Mr. Shields spoke, Mayor West of New Paltz, whose actions served as a catalyst for this debate, walked into the packed hearing room and received an emotional ovation that lasted at least five minutes.

Senator Thomas K. Duane, a Democrat and the only openly gay member of the Senate, was near tears as he lauded the mayor as someone who struck a historic blow for civil rights.

On the other hand, Joseph L. Bruno, the Senate Republican majority leader, sternly rebuked Mr. West, saying: "People ought to obey the laws equally and they shouldn't pick and choose. A mayor like that who defies the law could start issuing pistol permits tomorrow."

Looking forward, Mr. Bruno said, "If the laws don't change, then anyone who performs this ceremony, here in this state, is breaking the law."