The New York Court Of Appeals Decision On Same Sex Marriage: A Participant's Assessment

Tuesday, August 1, 2006 - 01:00

Editor: Mr. Trachtman, would you tell us something about your professional experience?

Trachtman: I came to Kramer Levin in 1986, following NYU Law School and two judicial clerkships, and have been here for 20 years. Since becoming a partner, I have chaired the firm's Pro Bono Committee. In light of the firm's strong commitment to pro bono and public service, the latter responsibility involves a considerable amount of my time.

Editor: Speaking of which, would you give us an overview of the firm's pro bono program and your own pro bono work?

Trachtman: We handle a wide range of pro bono matters, from individual representation of the indigent to large impact litigations to transactional work, all with the goal of involving as many of our lawyers as possible. We have a full-time externship at South Brooklyn Legal Services, which enables us to provide legal services to the poor more efficiently. My own pro bono work has focused in two areas - Social Security disability issues and civil rights, particularly LGBT issues like marriage equality.

Editor: I gather the latter work has mainly been with the Lambda Legal Defense and Education Fund. How did that relationship start out?

Trachtman: The firm has been involved with LGBT issues since the 1980s, when we started working with Gay Men's Health Crisis, and our partner Monica Lord was a director of Lambda Legal in the early 1990s. My own involvement began around the same time with Boy Scouts of America v. Dale, in which the United States Supreme Court upheld the anti-gay membership policy of the BSA. This was a Lambda Legal case, and we filed amicus briefs rebutting anti-gay stereotypes in both the New Jersey courts and the Supreme Court. We filed a similar brief in Lawrence v. Texas, Lambda Legal's historic case in which the Supreme Court overturned sodomy laws and really established a new framework for evaluating the claims of gay people for equal treatment and respect under the law.

The relationship with Lambda Legal has been enhanced through the work of other lawyers, including Norm Simon, an associate for whom we arranged a brief externship at the organization. Norm brought back to the firm a case through which he ultimately established the right of second parent adoption for gay partners under Delaware law. Lambda Legal then asked us in 2003 to research marriage-related issues in New York State. We initially expected to bring a suit to require recognition in New York for the Canadian marriage of a same-sex couple, and in fact we now have such a suit proceeding through the courts. But in the spring of 2004, the affirmative marriage rights issue caught fire, and Norm and I found ourselves, happily, at Lambda Legal's side launching Hernandez v. Robles in New York County Supreme Court on behalf of five wonderful New York couples. Nearly a dozen Kramer Levin lawyers ultimately participated in our work as co-counsel to Lambda Legal and its terrific lead counsel Susan Sommer.

Editor: Can you share with us the thinking of Lambda Legal and other advocacy groups to force a court fight on same sex marriage? Have they concluded that legislative action is beyond reach?

Trachtman: The strategy nationally has been to use both litigation and legislative action to move this issue forward, as well as public education. When people become aware of the unnecessary harm inflicted on same-sex couples by being excluded from hundreds of practical rights and protections provided by civil marriage, the level of support for equal marriage rights rises, and eventually I think we'll see a number of states eliminate discrimination legislatively. But the courts are a necessary catalyst in this process. In New York in 2004, people were attempting to get married and were turned away, and there was considerable frustration but also excitement over the issue. It was obvious that litigation was going to happen, and the leading civil rights groups concluded that it was important that the litigation be done properly - with a strong record, careful briefing, and a focus on state constitutional theories.

As it turned out, we were the only plaintiffs who prevailed at the trial level, thanks to the forward-looking decision of Justice Doris Ling-Cohan. Unfortunately, that decision was reversed in the First Department, over a dissent by Justice David Saxe, and that put us in the Court of Appeals, along with three cases from the Third Department, the most prominent of which was Samuels, litigated by the ACLU and Paul Weiss.

Editor: Would you take us through the legal arguments in the Court of Appeals?

Trachtman: Our position was that the marriage ban violated the New York State Constitution in multiple ways. First, we argued that marriage is a fundamental right from which our clients should not be excluded without compelling justification. The defendants argued that we were trying to invent a "new" fundamental right to "same sex marriage." Among other things, we pointed out that if a right is framed in terms of those who have historically exercised it, long-standing discrimination could never be rectified. But the plurality opinion went with the defendants.

Next, we argued that heightened scrutiny should be applied because the ban constituted both sexual orientation discrimination and sex discrimination. The plurality rejected the sex discrimination argument, basically because the sex-based discrimination hurt men and women equally. The plurality did agree that there was sexual orientation discrimination, but found that heightened scrutiny shouldn't apply in this area, although it left open the possibility that anti-gay discrimination in other settings might trigger heightened scrutiny.

We further argued that there is simply no rational reason for excluding same-sex couples from civil marriage. In response, the other side tried to walk a very fine line - they did not want to be seen as anti-gay and couldn't in good faith suggest that there was any harm caused by letting same-sex couples marry. So, instead, they relied on a very strange argument: that marriage is a necessary inducement for straight people to enter into long-term commitments to care for the children that result from accidental pregnancy. We pointed out that excluding same-sex couples from marriage in no way furthers the purpose of promoting heterosexual marriage, and thus cannot be a "rational basis" for the marriage ban, nor does this kind of flimsy reasoning satisfy the more searching form of rational review the courts apply in cases involving personal liberty interests or historically disfavored groups.

Unfortunately, the plurality opinion disregarded these legal standards and adopted the "accidental procreation" rationale. This just turns a classic anti-gay stereotype on its head by portraying straight people as preoccupied with sex and relationship-challenged, and then punishes gay people for being presumptively more stable, caring parents. The plurality also speculated that kids might be better off with different-sex rather than same-sex parents, a conclusion it conceded was supported by no empirical data. To the contrary, every study for 25 years has shown that parenting skills have zero to do with sexual orientation. And again, keeping gay people from marrying and protecting their own kids does nothing to encourage straight people to have more children. If the point is to discourage gay people from having kids, that is both futile and offensive.

Editor: Chief Judge Judith Kaye's 27-page opinion is both a strongly expressed and thoughtful discussion of the implications of the Court's decision. Could you comment on that opinion?

Trachtman: I have long admired Judge Kaye, and I think her Hernandez opinion will be remembered as one of the great dissents, ahead of its time. In particular, I appreciated her insights about the relevance of Loving v. Virginia, the United States Supreme Court's decision striking down the ban on interracial marriage. We argued, with the support of the NAACP Legal Defense Fund as amicus, that while the experiences of the gay and African American communities are obviously not the same, the underlying principles of the great civil rights cases apply to all, and that includes the right to freedom in marriage established in part by Loving. One of the judges who voted with the plurality, George Bundy Smith, not only is a distinguished jurist but also has outstanding civil rights credentials. We were disappointed that we apparently did not get this message across to him. But we were glad that Judge Kaye recognized the core principle, also embodied in the Lawrence decision, that people in each generation can invoke our common constitutional values in their search for greater freedom.

Editor: What do you see as the impact of this decision, and the next steps on this issue, in New York and nationally?

Trachtman: Well, we hope that Judge Kaye's eloquence and scholarship will in the long run have more influence than will the plurality opinion. Of course, every state has its own body of case law and statutes - and its own constitution - so what happened at the New York Court of Appeals is not necessarily applicable any place else. I think we are going to see an evolutionary patchwork of state court decisions and legislative enactments, with some states adopting civil union as an intermediate step. Civil union still enforces a demeaning "separate but equal" status, but it does represent progress over blatant substantive discrimination under state law. And California has shown that a state legislature can pass full equal marriage rights. Ironically, the governor there vetoed it because of a prior referendum, saying that it was up to the courts to decide. In New York, of course, the Court of Appeals has now said that it is up to the Legislature to decide.

Eventually, I believe, the U.S. Supreme Court will mandate equal marriage rights nationally, but that is some time off. Remember that the first state court decision striking down an anti-miscegenation law was in 1948. It took 19 years, until Loving v. Virginia, for the U.S. Supreme Court to strike down the remaining laws. Over that period other states, either by court action or legislation, had taken this step, and that served to build the necessary momentum. The same thing happened with the sodomy laws in the years leading up to Lawrence, and I believe that will be the process here.

In New York, obviously, legislative action is the next step. All of the Court of Appeals judges suggested that there may be good reasons for the New York Legislature to eliminate discrimination in marriage. That may take a while, since our Legislature is politically divided and historically slow to act. But with a majority of New Yorkers now supporting equal marriage rights, the issue doesn't have to get bogged down in partisan politics. Democrats and Republicans alike are coming to see that it is pointless and unfair to exclude thousands of hard-working families, many of them raising children, from so many basic legal protections. Marriage is good for social stability. So is fairness. I'm confident that a critical mass of New Yorkers, including our legislators, will come to see that.

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