i like the remedy that she came up with -
"husband," "wife," "groom," and "bride"...shall be construed to mean "spouse".
what's hillary going to say about this one?
-tim
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Hernandez v. Robles (decided 2/4/2005)
Hon. Doris Ling-Cohan, Justice
Supreme Court of the State of New York - New York County
...the freedom to choose whom to marry has consistently been the subject of public outcry and controversy. In fact, ironically, the parents of one of the named plaintiffs were, themselves, barred from marrying each other by an anti-miscegenation law that made it illegal for interracial couples to marry. In 1966, in order to marry, plaintiff Curtis Woolbright's parents moved to California, the only state at that time whose courts had declared bans on interracial marriage unconstitutional.
Thirty-eight years later, their son (Curtis Woolbright), his partner, and four other couples, bring suit to secure the fundamental right to choose one's partner in marriage. Karen Woolbright, mother of plaintiff Curtis Woolbright, understands from her own experience a generation ago what this means for her son....The challenges to laws banning whites and non-whites from marriage demonstrates that the fundamental right to marry the person of one's choice may not be denied based on longstanding and deeply held traditional beliefs about appropriate marital partners. Although anti-miscegenation laws were first enacted in colonial days, such laws were still common into the 1960's and upheld in case after case based on tradition rooted in perceived 'natural' law....It was not until 1948 that the first state Supreme Court rejected the reigning doctrine that laws limiting marriage to partners of the same race reflected natural law impervious to constitutional challenge....
Almost two decades after the groundbreaking and controversial California Supreme Court decision in Perez, the United States Supreme Court in Loving v. Virginia...declared that Virginia's anti-miscegenation statute violated the fundamental right to marry and the guarantee of equal protection. At the time, about one third of all States still had laws prohibiting interracial marriage. In fact, the trial court in Loving, even as late as the 1960s, had rejected the rights of adults to choose their marital partners based on out-moded prejudices that are now recognized as illegitimate grounds for governmental action: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Loving, 388 US at 2 (quoting trial judge's opinion)....
The DRL does not bar any of the ten plaintiffs from entering into a civil marriage. The...aspect of the fundamental right to marry, which...this action concerns, is the right to choose whom one marries. The right to choose one's spouse "resides with the individual." See Loving; Perez; Goodridge....The Court of Appeals has specifically stated: "[T]he government [is] prevented from interfering with an individual's decision about whom to marry."....The Supreme Court has consistently reaffirmed that, since the freedom to marry is a fundamental right, restrictions that "significantly interfere with decisions to enter into the marital relationship" are subject to "rigorous scrutiny".... Both the New York Court of Appeals and the United States Supreme Court have made clear that the State may not deny rights to a group of people based on no more than traditional attitudes or disapproval of that group....
While eloquently praising the indisputably central role that marriage plays in human life, neither defendant, nor amici indicate how that role would be diminished by allowing same-sex couples to marry, nor how the marriages of opposite-sex couples will be adversely affected by allowing same-sex couples to marry....the reality is that significant numbers of couples in New York have formed same-sex families, and numerous couples will continue to do so, whether they are allowed to marry or not. Neither defendant nor amici contend otherwise.
For purposes of due process analysis, the question is not, as defendant and amici formulate it, whether same-sex marriage is so rooted in our traditions that it is a fundamental right (it is not so rooted, of course). Indeed, to ask whether same-sex marriage is a fundamental right is to make the mistake that the Supreme Court criticized in Lawrence, when it overruled Bowers v. Hardwick....As the Washington Superior Court pointed out, in overturning Washington's Defense of Marriage Act (which explicitly barred same-sex marriage), there was no fundamental right to interracial marriage at the time (1967) that Loving was decided...and there was no fundamental right for inmates to marry at the time that Turner v. Safley was decided....
Marriage is no more limited by the historical exclusion of same-sex marriage than it was limited by the exclusion of interracial marriage, the legal doctrine of coverture, the pre-1967 restrictions on remarriage following divorce in New York, longstanding restrictions on divorce, or the "marital exemption" to the crime of rape....In the mid-1800's, New York, like many states, began the more than century-long process of altering the age-old marital relationship by dismantling the entrenched tradition of coverture and evolving in its stead a legal marriage structure premised on full equality between the sexes....in 1966, New York changed another important aspect of marriage through the enactment of the Divorce Reform Law, permitting for the first time "non-fault" divorce in the State....
Defendant has articulated no legitimate State purpose that is rationally served by a bar to same-sex marriage, let along a compelling State interest in such a bar....The exclusion of plaintiffs from entering into civil marriage indisputably discriminates against them on the basis of sexual orientation. Sexual orientation "cannot be used as the basis for denying 'any person' the equal protection of the law." Under 21 v. City of New York ( 1985). New York, through its courts, legislatures, executive branch, and local governments, has acknowledged that the State's thousands of same-sex couples fit the definition of "family"; that they are able to provide a loving and stable home for their biological or adoptive children; and that they are entitled to benefit from the same rights accorded to married couples....The Governor and the Legislature have...issued multiple measures treating surviving partners of gay victims of September 11, 2001 World Trade Center attacks as surviving spouses. More recently, the State has extended certain government benefits to same-sex partners.
Defendant and amici argue that, if plaintiffs and other same-sex couples are to be allowed to enter into civil marriages, such decision should be made by the Legislature, rather than by the courts. This "legislature deference" argument was similarly used to urge the United States Supreme Court to uphold racial classifications in marriage in Loving v. Virginia....it is clear that the courts have jurisdiction to rule on the constitutionality of statutes...this Court must construe the DRL in such a way as to cure its current constitutional defect. [The remedy ordered in People v. Liberta is instructive. There, the Court of Appeals...construed the [forcible rape] statute in a gender-neutral fashion, striking the gender exception and interpreting the law to apply to all persons.]....
It was only less than 40 years ago that the United States Supreme Court held that anti-miscegenation statutes, adopted to prevent marriage between persons solely on the basis of racial classification, violate the Constitution because they infringed on the freedom to marry a person of one's choice. Similarly, this Court must so hold in the context of same-sex marriages....the Court emphasizes that government recognition that same-sex couples may be civilly married does not impact on those married under the tenets of their individual faith, and does not require that religious institutions change their tenets, nor their definition of marriage under their faith. Moreover, such religious considerations cannot legally be the basis upon which to curtail the constitutional rights of plaintiffs....
Accordingly, it is hereby...ADJUDGED and DECLARED that the words "husband," "wife," "groom," and "bride," as they appear in the relevant sections of the Domestic Relations Law are and shall be construed to mean "spouse," and all personal pronouns, as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to either men or women; it is further
ORDERED that defendant is permanently enjoined from denying a marriage license to any couple, solely on the ground that the two persons in that couple are of the same sex....