2005/10/19_Gonzales v. O Centro Moot Court_Hollander_1The appeal for our lawsuit was argued on Tuesday morning. 

If you haven’t been following my blog from the beginning, briefly, our lawsuit is for recognition of our marriage.  I brought a suit against my employer because I wasn’t allowed to add Lisa to my benefits as my spouse.  (If you want an in-depth recap, you can read the archives here.) 

Last July our case was argued before Judge Harold Galloway who issued a 9-page ruling about 60 days later.

The motion of defendants for summary judgment is granted, and the cross motion of plaintiff for summary judgment is denied; and defendants are granted judgment declaring that defendants did not violate plaintiff’s civil rights under the Equal Protection Clause of the New York State Constitution, or Executive Law § 296, and that plaintiff’s marriage in Ontario, Canada is not entitled to comity in New York State.

Judge Galloway immediately “invoked” Hernandez v Robles, the New York Case decision which denied same-sex couples the right to marry.  Galloway incorrectly asserts that, since the higher court

applied the rational basis test to reach this conclusion, finding that “there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex,” and that the issue was one for the Legislature to decide.  Thus, defendants were not obligated under the Equal Protection Clause to recognize plaintiff’s marriage and provide Lisa Ann Golden with health insurance benefits as plaintiff’s spouse.

Either Judge Galloway didn’t bother to actually read the whole of the case and just gleaned what he wanted from the decision (much like a buffet Christian would glean what they want from the Bible, leaving out relevent supporting verses), or he just looked for anything he could to find in favor of the employer. (This is a VERY conservative county in a VERY blue state.)  This is clearly evidenced by his appalling statement in the decision that we were not denied the right to marry — that we can marry anyone we want of the OPPOSITE GENDER.  It is this mindset that led him to conclude that the New York State Domestic Relations Law is not discriminatory.

Then, Galloway makes his biggest gaffe by invoking DOMA which, if he’d bother to read it, covers only FEDERAL laws and FEDERAL benefits.  DOMA does not override individual state’s rights in their marriage and domestic relations laws — otherwise, the Massachusetts ruling on same-sex marriages that went into effect in May of 2004 would have been moot.

So, at the appeal, the defendants’ attorney argued the following (red emphasis my own):

1.  Lisa and I went to Canada to get married specifically as an end-around to the New York State Domestic Relations law.  Yes, we did.  That was sort of the whole point — that we had to leave “the land of the free” in order to marry.  One judge on the panel pointed this out, basically, and concluded that there isn’t any law in any state that prohibits comity recognition of marriages when said marriages are entered into in order to circumvent that state’s law.

2.  Lisa and I are not Canadians and, with that said, the only time comity has come into play for a Canadian marriage was when married CANADIANS moved to New York state.  Consider that in NY state a woman under the age of 21 is required to have parental consent in order to marry (men need only be 18 to marry without parental consent).  If you have a 19 year old woman who wants to marry but knows that her parents will not grant consent, she needs only travel 2 hours to the south into Pennsylvania where she can get married without parental consent, provided she is over 18.  So, she goes to Pennsylvania, gets married, and returns to New York State where her marriage is unquestioningly acknowledged and nobody argues “…she’s not a Pennsylvanian” and therefore the marriage shouldn’t be recognized because she traveled to Pennsylvania to marry specifically as an end-around to New York State law.  One judge pointed out that there are only two reasons for New York to not recognize an out-of-jurisdiction marriage — one is that the marriage is abhorrent to society (as in incest, polygamy, etc.) and the other is that the marriage would be ILLEGAL in NY State.  Neither of these conditions is met in a same-sex marriage.

3.  Two years after the initial denial of benefits, the college began to provide domestic partner benefits, which renders the lawsuit “moot.”  What the defendants’ attorney does not want argued, apparently, is that the PAST denial of benefits based on discriminatory practices, still exists.  Additionally, when our union contract expires in three years, there is no guarantee that those benefits will still be intact.  One judge asked if the provision of benefits renders the case moot and my lawyer argued that it does not, because the action began when the denial took place and that the denial was discriminatory and, as such, cost me (us) additional monies to keep Lisa on her own health insurance. 

4.  DOMA prohibits recognition of the marriage.  Again, DOMA is written only for FEDERAL tax and benefits purposes.  It does not dictate to the individual states what they can and cannot do regarding marriage law.

5.  The Hernandez decision also prohibits recognition of the marriage.  Incorrect.  The Hernandez decision only prohibits solemnization of marriages between same-sex couples in NY State.  Two judges commented that Hernandez does not, in fact, prohibit such recognition and that the Hernandez case was brought so that same sex couples would be legally able to marry — “…they’ve already done that,” she said (the judge).

My lawyer also pointed out a couple of recent decisions in New York State where out-of-state right-wing Christian groups brought suit against the New York State Retirement System when the decision was made by former state comptroller Alan Hevesi to honor same-sex unions with regard to survivor and pension benefits.  The decision supported Hevesi’s decision.  Another decision gave a man, based on his Vermont Civil Union with his long-timer partner, the right to be the person to make decisions and arrangements for his recently deceased partner.

It is my understanding that the NY State Attorney General’s Office wrote an amicus brief in support of our case and, in addition, they had a representative at the appeal hearing.  The head office in New York of the ACLU sent a lawyer out to hear the arguments, and members of some of the local GLBT agencies in the area were in attendance as well.

The general consensus among all of us in attendance was that at LEAST two of the three judges were “in our corner,” and possibly a third.  It looks good.  Keep your fingers crossed.

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