Liberty Counsel
Monday, Oct. 25, 2004

Story Continues Below

  On March 12, same-sex couples filed suit against the Orangetown Town Clerk and the New York Department of Health under the Equal Protection and Due Process Clauses of the New York State Constitution, demanding the state to issue same-sex marriage licenses. Liberty Counsel sought to intervene to defend the case on behalf of state Sens. Ruben Diaz Sr. and Richard Meier, Rep. Daniel Hooker, the New York Family Policy Council, and Michael Long, co-owner of a small business and chairman of the Conservative Party of New York.

Sens. Diaz and Meier are co-sponsors of S2220, which provides that a “marriage” or union between two people of the same sex is void regardless of whether such union is recognized or solemnized in another jurisdiction. The court denied intervention as a party, but granted the request to file a brief to defend the marriage laws.

Judge Weiner ruled that although New York laws do not expressly ban same-sex marriage, the interpretation of the laws, their history and gender-specific language (“bride”, “groom”, “husband” and “wife”) clearly indicate that the laws preserve marriage as a union of one man and one woman. The “existing marriage statutes do not authorize or give [town clerks] the discretion to issue marriage licenses to same-sex couples.”

The opinion also states that the marriage laws do not discriminate based on gender, as males and females are similarly situated under the statutes and they are authorized to marry persons of the opposite sex.

The court declined to apply what is known as “heightened scrutiny” to the laws, and instead applied the “rational basis” test, which requires anyone who challenges the law to negate “every conceivable basis which might support” the marriage statute.

The court noted that same-sex marriage is not a fundamental right and that marriage is “founded on the distinction of sex and the potential for procreation.” The court noted that “issuing marriage licenses only to heterosexual couples is rationally related to legitimate interests in preserving the traditional and legal concept of marriage” and further noted that marriage is “a legal status subject to the control of the Legislature.”

The decision in Shields vs. Madigan is one of five challenges to the state marriage laws and is the first case in New York to render a decision on the marriage laws.

Staver commented: “The state of New York has a legitimate reason for preserving marriage as the union of one man and one woman for the potential of procreation and childrearing. Same-sex marriage would radically redefine the culture and transform marriage into an unrecognizable institution. Millennia of human history should not lightly be discarded in the litigation crucible.”

Editor's note: