Factual Question (NO GD, please): Is same-sex marriage prohibited in NY State?

[toadspittle]

I am a resident of the now famous village of New Paltz, NY.

Our young mayor has been charged with solemnizing marriages without marriage licenses–which, as near as I can tell from the NY State Domestic Relations Law text I found online, is a fair charge. From what I read, the Mayor of a Village is allowed to solemnize a marriage, but no official or member of the clergy, no matter who they are, can do so if the couple has not obtained a valid marriage license.

But …

There seems to be nothing in the State Constitution regarding marriage (save what types of justices can deal with marriages, annulments, etc.), and nothing in the Domestic Relations Law that forbids same-sex couplings. Although Gov. Pataki said:

Pataki, however, insisted again Tuesday that the state’s marriage law is clear. “Marriage is between a man and a woman, and as public officials we should enforce that law,” Pataki said.

( http://www.magicvalley.com/news/worldnation/index.asp?StoryID=7910 )

… I can’t find anything like that in the law. There are laws forbidding various types of incestuous marriages, laws forbidding minors below a certain age of marrying, laws forbidding the marriage of those who are not of sound mind at the time, etc., but nothing regarding “man and woman.” Even the law that lays out what the officials creating the forms for the marriage license have to put on it is surprisingly gender-neutral:

… Know all men by this certificate that any person authorized by law to
perform marriage ceremonies within the state of New York to whom this
may come, he not knowing any lawful impediment thereto, is hereby
authorized and empowered to solemnize the rites of matrimony between
… of … in the county of … and state of
New York and … of … in the county of
… and state of New York and to certify the same to the said
parties or either of them under his hand and seal in his ministerial or
official capacity and thereupon he is required to return his certificate
in the form hereto annexed…

( http://assembly.state.ny.us/leg/?cl=29&a=4 )

No mention of sexes, just blanks. In fact, the only arguable obstacle I can find is this:

S 12. Marriage, how solemnized. No particular form or ceremony is
required when a marriage is solemnized as herein provided by a clergyman
or magistrate, but the parties must solemnly declare in the presence of
a clergyman or magistrate and the attending witness or witnesses that
they take each other as husband and wife.

( http://assembly.state.ny.us/leg/?cl=29&a=4 )

But it seems to me that this would merely require either (a) one member of the couple taking the title of “husband” and the other “wife” or (b) the couple saying together, “We take each other as husband and wife.” The paragraph that follows this gives special provisions to Quakers (who do not believe a third party, such as a clergyman, is necessary to “declare” a couple married–only God can do that) and indicates that the state will make great allowances for variations in ceremony based on religion. So perhaps the couple could omit the whole “husband and wife” bit altogether on those grounds.

So what’s the straight dope? Do any law types out there know of a specific law on the books that says that, in New York, a marriage is only between a “man and a woman,” as Pataki maintains?

Links:

NY State Constitution

NY State Domestic Relations Law

[SmackFu]

Just today, the New York Attorney General gave his opinion on the issue. The linked page has a 28 page PDF that goes into great detail with cites.

[Exapno_Mapcase]

Law is what the courts interpret it as. At this moment no higher court has ever ruled that same-sex marriage is legal. Even the Massachusetts Supreme Court’s ruling only says that same-sex marriage must be accepted after a certain time in the future unless circumstances change.

When the U.S. Supreme Court makes its final ruling on this matter - or a constitutional amendment is passed - you’ll have a definitive answer. Right now all we have is interpretation.

[toadspittle]

Thanks, SmackFu.

• The language of the New York State Domestic Relations Law - which includes references to “bride and groom” and “husband and wife” - does not authorize the issuance of licenses to same sex couples in New York;
• Therefore, the opinion recommends that local officials in New York should not issue marriage licenses to same sex couples, and officiants should not solemnize same sex wedding ceremonies;
• New York’s marriage laws raise important constitutional questions involving the equal protection of the laws. Any uncertainty arising from those questions must and will be decided by the courts; and
• Under state court precedent, same sex marriages and civil unions lawfully entered in other jurisdictions outside the state should be recognized in New York.

I see the interpretation. Even though there is no specific prohibition in the laws about who can marry, all of the related laws (re: property, divorce, etc.) are rife with references to the assumption that a married couple will consist of a male husband and a female wife.

Interesting that Spitzer’s willing to recognize same-sex unions from other states (and countries?), though. But that’s for GD, I suppose.

[RealityChuck]

Actually, there are states where same-sex marriages are perfectly legal (in certain rare cases). One of them, oddly enough, is Texas.

[rsa]

Interesting.

IANAL, but a quick reading of the AG’s opinion and relevant cites seem to imply to me that the mayor is subject to prosecution (for solemnizing a marriage without a license). However, it seems that the same-sex couples married by the mayor would have a good case that their marriages are valid.

The DRL does not, however, penalize individuals who
participate in a marriage ceremony without first obtaining a
license.

and

Nor does the lack of a marriage license affect the validity
of a marriage. See DRL § 25 (“Nothing in this article contained
shall be construed to render void by reason of failure to procure
a marriage license any marriage solemnized between persons of
full age.”)

Perhaps, the happy couples could offer to pay the mayor’s fines!

[rsa]

Forgot to mention also that SSM is nowhere mention in the stautes on “void” or “voidable” marriages.

[Otto]

@Exapno Mapcase

Law is what the courts interpret it as. At this moment no higher court has ever ruled that same-sex marriage is legal. Even the Massachusetts Supreme Court’s ruling only says that same-sex marriage must be accepted after a certain time in the future unless circumstances change.

When the U.S. Supreme Court makes its final ruling on this matter - or a constitutional amendment is passed - you’ll have a definitive answer. Right now all we have is interpretation.

Er…I’m unclear as to why you’re drawing a distinction in the MA case between “legal” and “must be accepted…” The SJC ruled that the denial of marriage licenses to same-sex couples is a violation of the MA state constitution. This means that same-sex marriage is legal in MA. The SJC stayed its ruling for 180 days to allow the legislature to pass the necessary laws to put the court’s ruling in force. Should the legislature fail to do so (and they have until May 17) the SJC ruling will compel any judge in the state to order that the appropriate issuing agency issue licenses to any otherwise qualified same-sex couple. The only things that can stop SSM in MA is an amendment to the state constitution (which under the amendment process can’t happen until 2005 at the earliest) or ratification of a federal constitutional amendment (which while possible, won’t happen before May 17).

In addition, the supreme court of Hawaii has also ruled that denying marriage licenses to same-sex couples violated that state’s constitution. The voters in that state, however, passed a constitutional amendment defining marriage as between male and female, one each, but the HI court has still held that the denial of marital rights on the basis of sexual orientation is discriminatory.

[Exapno_Mapcase]

Cart before the horse. While interpretations of state constitutions have been made, no couple that has gone through a same-sex marriage has been said to be legally married everywhere in the U.S. And that’s the only ruling that counts.