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From Outlaws to In-Laws

In Marriage Equality: From Outlaws to In-Laws, William N. Eskridge and Christopher R. Riano explore the deeply religious, rabidly political, frequently administrative, and pervasively constitutional features of the debate and consider all angles of its dramatic history. Praised by Library Journal as “beautifully and accessibly written. . . . An essential work,” Marriage Equality is a thoughtful history of how the nation wrestled with an important question of moral and legal equality.

We celebrate Pride Month 2023 with a selection of excerpts, featuring titles about gay icons and artists, legal debates and triumphs, cultural and literary criticism, works by LGBTQ+ authors, and more.

William N. Eskridge Jr. and Christopher R. Riano

On Wednesday, March 24, 2003, Daniel Hernandez and Nevin Cohen, along with eight other plaintiffs, sued the city clerk in the New York State Supreme Court. They asked the court to declare New York’s Domestic Relations Law unconstitutional “insofar as it denied marriage licenses and access to civil marriage to same-sex couples.” On February 4, 2005, Justice Doris Ling-Cohen found in their favor, which set off a long journey through New York’s labyrinthine government.1

Hernandez v. Robles eventually joined other marriage equality challenges in the New York Court of Appeals; briefs and oral arguments were scheduled for the last day of May 2006. (The court of appeals is New York’s highest court—higher than the state’s supreme court.) The oral arguments in Hernandez were nothing short of a spectacle. The normally seven-judge court was reduced to six for this case, as Albert Rosenblatt, the affable former district attorney of Dutchess County, recused himself from consideration of the case (probably for a family-based conflict of interest). Representing forty-four same-sex couples, seventeen lawyers participated in an argument that ran over two hours. Detailed briefs were filed by the ACLU, Lambda Legal, GLAD, the Catholic Conference, the Family Research Council, and Attorney General Eliot Spitzer. Judge Robert Smith, a former corporate lawyer, dominated the oral argument, aggressively pressing counsel to demonstrate why New York did not have a rational basis to treat same-sex and opposite-sex couples differently with regard to the special institution of marriage. His style of interjection, interrupting counsel with lengthy questions which he then doggedly pursued, created tension and some ill feelings in the court of appeals’s majestic courtroom.2

The court issued its 4-2 decision in Hernandez v. Robles on July 6, with Judge Smith announcing the judgment of the court and authoring a plurality opinion. He concluded that reasonable legislators could rationally believe that the traditional definition of marriage was useful to channel straight couples into “responsible procreation” and to valorize marital mom-dad families as the optimal arrangement for child-rearing. “We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature . . . and that those unhappy with the result—as many undoubtedly will be—will respect it as people in a democratic state should respect choices democratically made.” Judge Victoria Graffeo’s concurring opinion accepted only the responsible procreation justification. The court’s judgment left any final decision on marriage equality firmly within the purview of the New York legislature. Yet Smith’s dismissive opinion was controversial within that body. Assemblywoman Deborah Glick wrote an op-ed and sent a private letter to Smith deriding his opinion as laced with anti-gay stereotyping and hostile terminology that the legislature had pointedly rejected.3

In a detailed dissent, Judith Kaye, joined by Carmen Ciparick, lamented that the plurality judges had failed to understand that “fundamental rights . . . are not defined in terms of who is entitled to exercise them” and that marriage has never had the “single and unalterable meaning” the plurality attributed to it. “I am confident that future generations will look back on today’s decision as an unfortunate misstep.” Kaye also argued that the exclusion of gay couples from civil marriage was an invidious discrimination with no rational basis.4

Chief Judge Kaye took pride in her statement in Hernandez, particularly because of the importance of marriage, family, and children in her own life and the lives of those she loved. She saw the question of marriage equality through the lens of her own past struggles as a woman trying to find a job at a law firm. After law school, she worked as an associate at the venerable Sullivan & Cromwell before leaving to start a family. Upon returning to legal practice, she started at Olwine, Connelly, Chase, O’Donnell & Weyher in 1969, becoming the firm’s first female partner in 1975. The early rejections she faced in her professional life gave her a deep sympathy for the experiences of gay and lesbian couples whose life commitments and families were rejected by the state. When we spoke with her, she reminisced about having officiated at the marriage of her law clerk, Megan Wolfe Benett, to David Ratzen just days after hearing oral arguments in Hernandez. Opening a scrapbook that she kept detailing all the weddings she had performed, she asked us, “How can you not feel touched seeing this?” It was her reflection on the opposite-sex marriage of a person in her judicial family, her own law clerk, that inspired her most memorable paragraph about same-sex marriages in Hernandez: “For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage.” She lamented that the forty-four plaintiffs were denied those rights solely because of their sexual orientation. “This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.”5

If anything were to be done about marriage equality, however, it was up to the famously gridlocked New York legislature. Hernandez set the stage for an ensemble of key players from the executive and legislative branches who would strive to deliver what the judiciary had not. Could the rights of a minority be vindicated by the legislative process?6

1. Hernandez v. Robles, 7 Misc. 3d 459, 461, 794 N.Y.S.2d 579, 582 (Sup. Ct.), rev’d and vacated, 26 A.D.3d 98, 805 N.Y.S.2d 354 (2005), aff’d, 7 N.Y.3d 338, 855 N.E.2d 1 (2006).

2. Karen Tracy, How Questioning Constructs Judge Identities: Oral Argument About Same-Sex Marriage, 11 Discourse Studies 199–221 (2009) (quoting and analyzing Judge Smith). Court of appeals insiders have attributed Judge Rosenblatt’s decision to his deep devotion to his openly lesbian daughter, Elizabeth (Betsy).

3. Hernandez v. Robles, 7 N.Y.3d 338, 366, 855 N.E.2d 1, 12 (2006) (quotations in text, from Smith’s plurality opinion); Letter from Deborah Glick to Robert Smith (2006), Task Force Archives. Accounts of discussions during the deliberations of the case are taken from off-the-record interviews with court insiders.

4. Hernandez, 7 N.Y.3d, pp. 382, 396 (quotations in text from Kaye’s dissenting opinion). Chief Judge Kaye would foresee, almost ten years before Obergefell v. Hodges (2015), that the fundamental right to marry applied to same-sex couples.

5. Megan Benett, David Ratzan, Weddings, New York Times, June 11, 2006; William Eskridge and Christopher Riano interview of Judith Kaye, New York City (Nov. 2016) (first and third quotations in text); Hernandez, 7 N.Y.3d, p. 380 (second quotation, from Kaye’s dissenting opinion).

6. Valuable accounts of the New York marriage campaign from the perspective of LGBTQ+ organizations and activists include Kerry Eleveld, Don’t Tell Me to Wait: How the Fight for Gay Rights Changed America and Transformed Obama’s Presidency, 225–232 (2015); Nathaniel Frank, Awakening: How Gays and Lesbians Brought Marriage Equality to America, 259–267 (2017); Marc Solomon, Winning Marriage: The Inside Story of How Same-Sex Couples Took on the Politicians and Pundits—and Won (2014). Also essential to understanding the campaign, however, is the important role played by the governor and gay and lesbian legislators.

From Marriage Equality: From Outlaws to In-Laws by William N. Eskridge and Christopher R. Riano. Published by Yale University Press in 2020. Reproduced with permission.

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