Friday, 08 July 2011 00:00
A few years ago, a former mayor in Poughkeepsie, N.Y. was attracting a lot of attention by performing same sex marriages. As a Village Justice and attorney on Long Island where I can perform marriage ceremonies, I had not received any requests to perform same sex marriages but wrote an op-ed column questioning my legal authority to do so. The Attorney General at the time, Elliot Spitzer, then picked up on the topic and wrote an opinion stating that same sex marriages were not legally permitted in the State of New York. According to Mr. Spitzer, it would require a legislative change, which we now have.
But while it appears that the new legislation will mean more revenues for municipalities issuing marriage licenses and lawyers preparing pre-nuptial agreements, or representing people in divorces, custody and estate matters, there will also be those in government who may not follow the new law for religious or other reasons.
The oath of office requires that elected officials uphold, protect and defend the Constitutions of the United States and of New York State. The same sex legislation is not a part of the Constitution and the question then becomes whether elected officials and in particular, judges, must follow it. If a same sex couple comes before me to request that I marry them, I have the authority of judicial review even over state legislation and on notice to the Attorney General, I could if legally feasible, declare the new law unconstitutional and refuse to perform the marriage ceremony.
I would never do that because I am a proponent of equal rights. I support the spirit and intent of the new legislation but for those states where same sex marriages are not permitted, it is clear that we need a federal Equal Rights Amendment that will allow for same sex marriages throughout the United States. Ironically, if a same sex couple marries in a state where such unions are permitted but then moves to a state where they are not, the new state in which they would reside would have to acknowledge the legality of the marriage under the Full Faith and Credit Clause of the United States Constitution but there would be a legal question about the applicability of the new residential state’s laws on divorce, custody, wills, estates and other matters. Hence, there is an ongoing need for Constitutional Amendments both on a state and national level to ensure equal rights for all.
Thomas F. Liotti
Westbury Village Justice Attorney, Garden City