The quest for same-sex marriage received a setback in New York when a state appeals court, Dec. 8, overturned a decision declaring the ban on gay marriage to be unconstitutional.
Lambda Legal filed suit in Iowa on December 13 seeking to declare that state's marriage laws unconstitutional.
Last February a Manhattan trial judge ruled that New York's marriage statues discriminate against same-sex couples in violation of that state's constitution. Doris Ling-Cohan declared that the words husband, wife, groom and bride as they appear in the relevant sections 'shall be construed to mean spouse … [ and ] apply equally to either men or women.'
The state's highest court refused to accept an expedited appeal and said that it should first be heard by an intermediary appeals court.
In reversing Hernandez v. Robles, Judge Milton L. Williams wrote, a ringing endorsement of traditional marriage, tying it to biological reproduction. Furthermore, he said, 'The power to regulate marriage lies with the Legislature, not the judiciary.' He was joined by two other judges.
The majority, and a concurring opinion by Judge James M. Catterson, drew heavily upon the dissenting opinions in the Goodridge case that brought gay marriage to Massachusetts.
Judge David B. Saxe wrote a dissenting opinion to Hernandez that, like the original ruling by Ling-Cohan, drew heavily upon pro-gay rulings by the U.S. Supreme Court. He wrote, 'The due process clause of New York's Constitution, like the Federal Constitution, protects, as fundamental, the right to marry, and more particularly, to marry the person of one's choosing.'
Mayor Michael Bloomberg had drawn the wrath of many gays when he appealed the initial decision that was favorable to gays. He said he was doing it for legal reasons, even though he supported gay marriage. In a written statement, the Mayor restated that position, saying, 'This issue should be decided by the state's highest court; I assume today's decisions will be appealed.'
Lambda Legal confirmed that they have been prepared to go all the way. It called the decision disappointing, but a temporary setback.
Several other marriage cases are progressing through the appeals process in New York and most observers believe that the matter ultimately will be resolved at the highest level of the state judiciary.
On Dec. 13, Lambda Legal began another high profile quest for equal marriage rights by filing a constitutional challenge to marriage laws in Iowa, based upon the protections afforded in that state's constitution.
The accompanying news conferences with the six couples who are plaintiffs in Des Moines and Cedar Rapids are part of the activities to stimulate public debate and prepare the way for acceptance of the anticipated victory several years down the legal pathway.
'This lawsuit is about fairness and equality. Same-sex couples all over Iowa are devoted and love each other,' Camilla Taylor, staff attorney in Lambda Legal's Midwest Regional Office in Chicago, said in a statement. 'Since marriage is the way the government provides protection, support and respect for families, it is only fair that these couples be able to marry.'
The lawsuit, which was filed in the Iowa District Court for Polk County, contends that under the equal protection and due process guarantees in the Iowa State Constitution, it is unlawful to bar same-sex couples from marrying. The Iowa Supreme Court will have the final word on the outcome of this case.
Chicago attorneys Camilla Taylor and Pat Logue are handling the case for Lambda Legal. They are joined by Dennis Johnson of Dorsey and Whitney in Des Moines.