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The Green Party mayor of New Paltz, N.Y., has been criminally charged for marrying gay couples who did not have a license. Jason West, 26, faces 19 counts of solemnizing a marriage without a license, a misdemeanor under the domestic relations law, according to Ulster County District Attorney Donald Williams. The charges follow West’s move last week to officiate over same-sex marriage ceremonies in the New York college town and bring to the fore the legal question of exactly what the state’s marriage laws countenance. Gay and lesbian rights activists insist that state laws enshrined in Article 3 of the Domestic Relations Law are gender-neutral and that same-sex marriages, though never performed until last week in New Paltz, are clearly permissible within the four corners of existing law. But both Gov. George E. Pataki and New York City Mayor Michael R. Bloomberg have weighed in with the exact opposite conclusion: Current laws are gender-specific and permit marriage only between one man and one woman. New York Attorney General Eliot Spitzer, who Friday declined to seek an injunction against the New Paltz ceremonies, has staff reviewing the issue. Spitzer, who stayed his hand last week, citing a lack of irreparable injury, is soon expected to issue an opinion on New York’s law. West, whose town is home to a State University of New York campus, waded in to the issue by marrying 25 gay and lesbian couples on Friday. West said this week that he will plead not guilty at his court hearing and that he would still go through with his plans to marry one dozen to two dozen gay couples Saturday. Less than three weeks ago, the Massachusetts Supreme Court catapulted the issue of same-sex marriages forward, ruling that they are required under that state’s constitution. The next day, San Francisco began issuing marriage licenses to same-sex couples. And last week, President Bush weighed in, calling for a constitutional amendment to ban same-sex marriages. NARROW QUESTIONS A debate is under way on the broader question of whether states and localities must permit same-sex couples to marry as a matter of federal and state equal protection guarantees. But West’s actions have triggered two far narrower questions under New York law: Are same-sex marriages permitted under existing laws, and, even if they are, did West break state law by officiating at marriage ceremonies after his town’s clerk refused to issue licenses to couples seeking to wed? On the latter question, even lawyers championing same-sex marriage say the law, Domestic Relations Law Section 17, is clear that an official who “shall solemnize or presume to solemnize any marriage between any parties without a license” is guilty of a misdemeanor. But the question of whether New York’s marriage laws embrace same-sex marriage is heavily contested. Lawrence C. Moss, a legal strategist in the fight to expand rights for gay and lesbian couples, said courts should “follow the plain words of the statute and not read into it words that denigrate the right to equal protection of the law.” Others are equally adamant that the “plain meaning” of New York’s statute bars anyone other than a man and a woman from marrying. Bill Van Slyke, a spokesman for the state Department of Health, said DRL Articles 2 and 3 are replete with gender-specific references such as “husband and wife” and “bride and groom.” Court decisions go back a decade, he added, “construing a marriage to be between one man and one woman.” The starting point of the debate and analysis is DRL Article 3, which sets forth New York’s law governing how marriages are entered into. GENDER-SPECIFIC A 2001 report of the Association of the Bar of the City of New York concluded that there is no requirement in Article 3 that “applicants for a marriage license be of the opposite sex.” The language of the statute “is gender-neutral, and recent legislative and case law developments compel” any reviewing court to reach that conclusion, said Maureen Grady-Palmer, chairwoman of the Association of the Bar of the City of New York’s Committee on Lesbian Gay Bisexual and Transgender Rights, one of the three committees that produced the 2001 report. The bar group’s research unearthed only one decision dealing directly with the question of whether New York’s law authorizes same-sex marriages. That decision, Storrs v. Holcomb, out of the Supreme Court in Tompkins County in 1996, found a lack of authority for same-sex marriages . A second ruling from Manhattan Supreme Court, Robin v. Cook, made the same point in dicta, the report noted. But neither decision parsed the New York statute to determine whether it was gender-neutral, the report concluded, noting that, with one exception, Article 3 employs gender-neutral language. The report also cited commentary to Article 3 as asserting that “the New York statutes do not explicitly state that marriage is limited to persons of the opposite sex.” And it drew upon an opinion issued by the Surrogate Court in Manhattan that observed that “the only authority in this state for the prohibition of same-sex marriage is contained in two lower court decisions,” and, as such, it is “premature” to conclude that same-sex marriages are prohibited. Jay Weiser, a law professor at Baruch College who played a pivotal role in the city bar’s research, noted that recent developments, such as the state Legislature’s decision to extend workers’ compensation benefits to the same-sex partners of those killed in the World Trade Center terror attacks, strengthens the argument that the statute should be construed as gender-neutral. But other lawyers familiar with the state law say there are two gender-specific references in Article 3 — “husband” and “wife” in Section 12 and “groom” and “bride” in Section 15. In addition, they assert, other articles of the DRL contain numerous such references. This article originally appeared in the New York Law Journal , a publication of American Lawyer Media. This article also contains information from The Associated Press.

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