A Manhattan judge has declared New York's Domestic Relations Law
unconstitutional and enjoined the city clerk from denying
marriage licenses to same-sex couples.
Supreme Court Justice Doris Ling-Cohan ruled Friday that the
statute, by implicitly permitting only heterosexual marriage,
violates the Due Process and Equal Protection clauses of the
Throughout her 62-page decision, Justice Ling-Cohan compared
laws that prohibit same-sex marriage with laws that banned
"It was only less than 40 years ago that the United States
Supreme Court held that anti-miscegenation statutes, adopted to
prevent marriages solely on the basis of racial classification,
violate the Constitution because they infringed on the freedom
marry a person of one's choice," she wrote in Hernandez v.
Robles, 103434/2004. "Similarly, this court must so hold in the
context of same-sex marriages."
The decision could put New York on the same path as
Massachusetts, whose highest court also found its state law
Ling-Cohan stayed her opinion for 30 days to allow New York City
to appeal before the injunction takes effect.
A spokesperson for the city Law Department declined to say
whether the ruling will be appealed. However, two other recent
Supreme Court cases had contrary holdings. Judges found the
denial of marriage licenses constitutional in Shields v.
Madigan, 1458/04, and Samuels v. New York State Department of
Susan Sommer, senior counsel for Lambda Legal, which represents
the five couples who brought the suit, called the decision
"This is a great day for New York," she said.
The gay rights organization initiated the action in March, after
the office of City Clerk Victor Robles, the named defendant in
the case, declined the couples' marriage license applications.
The couples claimed the restriction of marriage to opposite-sex
couples violated New York's Constitution, and Ling-Cohan agreed.
The state's Due Process Clause provides, "No person shall be
deprived of life, liberty or property without due process of
Under both the state and federal constitutions, the right to
liberty has been found to extend to protect marriage and family
relationships, Ling-Cohan wrote, citing 13 New York and U.S.
Supreme Court cases.
"[T]he right to marry 'is not a privilege conferred by the
State, but a fundamental right that is protected against
unwarranted State interference,'" she wrote, quoting Goodridge
v. Department of Public Health, 440 Mass 309.
The state must demonstrate a compelling interest to infringe on
fundamental rights, and no such interest existed here, Ling-Cohan
The city posited two compelling interests, both of which Ling-Cohan
First, the city argued that maintaining the "traditional
institution of marriage" supported the clerk's decision to deny
marriage licenses to the same-sex couples.
Ling-Cohan found that, among other things, "'preserving the
institution of marriage' is just a kinder way of describing the
State's moral disapproval of same-sex couples," citing Lawrence
v. Texas, 539 US 558.
"Rote reliance on historical exclusion as a justification
improperly forecloses constitutional analysis and would have
served to justify slavery, anti-miscegenation laws and
segregation," she wrote later in the opinion.
The city also argued that denying the licenses ensured
consistency with federal law and other states, noting that the
Federal Defense of Marriage Act provides that, among other
things, "the word 'marriage' means only a legal union between
one man and one woman."
Ling-Cohan held that a desire for uniformity did not rise to the
status of a compelling interest.
"It would be 'irrational and perverse' to deny such New York
resident couples and their children the protections of marriage
that they would enjoy under the laws of New York, on the ground
that they will not have those protections under the laws of
or under those of the United States," she wrote, citing U.S.
Supreme Court Justice John Paul Stevens' concurring opinion in
Carey v. Population Services Intl., 431 US 678.
The Manhattan judge also found that the denial of the marriage
licenses to the five couples violated their equal protection
"The exclusion of plaintiffs from entering into civil marriage
indisputably discriminates against them on the basis of sexual
orientation," Justice Ling-Cohan held.
Having found the Domestic Relations Law unconstitutional, the
judge evaluated possible remedies.
Because "it is utterly inconceivable to this Court that the
Legislature would have rejected the entire marriage provisions
of the DRL," the judge sought to interpret the law's language in
a way that cured it of its constitutional defect.
She therefore ordered the gender-specific words "husband,"
"wife," "groom" and "bride" to be construed to mean "spouse,"
and for all personal pronouns in the law's relevant sections to
apply equally to men and women.
Sommer of Lambda Legal acknowledged that the decision lacks
precedential power unless it is appealed and upheld. She said
she is in no hurry for the city to appeal.
"I want families to be able to get married," she said.