ALBANY – Despite a continuing series of legal setbacks, Brian W. Raum said he believes he is closer than ever to getting advocates of same-sex marriage right where he wants them: before the New York Court of Appeals.
Mr. Raum said he and his group, the Scottsdale, Ariz.-based Alliance Defense Fund, have for two years carried the so-far fruitless fight against the recognition of same-sex marriages by state and local governments in New York with the ultimate goal of arguing before the Court of Appeals.
He said his latest defeat before the Appellate Division, Third Department, in Lewis v. New York State Department of Civil Service ( NYLJ, Jan. 23), will be appealed. The appellate court unanimously upheld the Civil Service Department’s 2007 extension of health insurance benefits to the spouses of employees who were married in states or countries where same-sex marriages are legal.
“It’s not over. Until the Court of Appeals addresses this issue, it is alive and well,” Mr. Raum said in an interview. “We will continue to litigate until that happens. Our position is that this is a policy issue and the law in New York is that New York does not permit same-sex marriage.”
Mr. Raum, senior legal counsel for the Alliance Defense Fund, said the group also will seek to appeal to the Court a unanimous Second Department panel ruling in Godfrey v. Spano upholding a 2006 directive by Westchester County Executive Andrew J. Spano ordering county agencies to recognize same-sex marriages solemnized in jurisdictions where it is legal ( NYLJ, Jan. 7).
Mr. Raum said he expects to file motions seeking leave to appeal in both Lewis and Godfrey within the next week.
The group also is challenging before the First Department a decision by Acting Supreme Court Justice Lucy Billings of the Bronx in Golden v. Paterson, which upheld Governor David A. Paterson’s May 2008 order to state agencies that they extend the same benefits to legally married same-sex couples as agencies recognize for heterosexual couples ( NYLJ, Sept. 8, 2008).
New York courts are a relatively new battleground for the Alliance Defense Fund’s national campaign against same-sex marriage.
The group represented one of the petitioners in the case in which California’s Supreme Court legalized same-sex marriage and it defended the subsequent ballot Proposition 8, in which voters invalidated same-sex marriage, against legal challenges.
The group also has been involved in same-sex marriage litigation in Rhode Island, Oklahoma and other states.
The Alliance Defense Fund was founded in 1994 by conservative Christian groups. Its mission statement says it litigates “carefully chosen, strategic cases to protect the freedom of religion, guard the sanctity of human life, and preserve marriage and traditional family values.”
In New York, the group has intervened on behalf of state residents in a range of court cases in addition to those challenging the recognition of same-sex marriages for eligibility for public benefits.
The cases include defending a Baptist minister who was arrested while preaching the Gospel on the Schenectady County Community College campus ( NYLJ, Sept. 10, 2008) and blocking the state from forcing an evangelical Christian from having to buy a commercial sign permit or remove pro-Jesus slogans from a tractor trailer on his St. Lawrence County property ( NYLJ, Dec. 24, 2008).
The group also has fought the Department of Motor Vehicles in court over New York’s refusal to offer motorists “Choose Life” license plates, which the Pataki administration interpreted as carrying an anti-abortion message ( NYLJ, Dec. 13, 2007).
The Alliance Defense Fund represented the successful plaintiffs before the U.S. Supreme Court in Good News Club v. Milford Central School District, 533 U.S. 98 (2001), and the U.S. Court of Appeals for the Second Circuit in Bronx Household of Faith v. Board of Education, 492 F.3d 89 (2007), which opened public school buildings for after-hours use by religious groups.
The fund says it has enlisted more than 1,000 attorneys around the country to represent litigants when the group’s staff attorneys are not available.
Albany attorney Stephen P. Hayford, who works with the group, said the fund offers training on representing clients in First Amendment and other cases where violations of the free exercise of religion is being alleged in exchange for attorneys pledging to serve pro bono for local litigants.
“It is helpful to have the Alliance Defense Fund here in New York and I think it is appropriate,” Mr. Hayford said in an interview. “When you look at some of the other organizations, Lambda Legal has a multi-state presence and the [American Civil Liberties Union] is also a player in some of these cases on a national level. It is only right and fair that when these large organizations are bringing their resources to bear, there should be a national group that can bring its resources to bear on the traditional values side as well.”
In the New York same-sex marriage cases, the Alliance Defense Fund has argued for plaintiffs who are state residents and taxpayers. They have challenged the extension of benefits to same-sex couples as illegal because New York state itself does not allow such marriages.
In each instance, the fund has been opposed in court by the Lambda Legal Defense and Education Fund, which has defended same-sex partners seeking public benefits.
Lambda Legal attorney Susan Sommer said the Alliance Defense Fund should get the message from its losses that the recognition of same-sex marriages by governments in New York “has become settled law.” “I think we are at a point where they have been demonstrated to be out of step with New York law, New York principles, New York courts, New York government,” Ms. Sommer said in an interview. “Enough is enough.”
‘Beating Dead Horse’
Jeffrey S. Trachtman of Kramer, Levin, Naftalis & Frankel, Ms. Sommer’s frequent co-counsel in the recognition of marriage litigation in New York, accused the fund of “beating a dead horse” in continuing to pursue the marriage benefits cases in the face of the repeated defeats.
“It seems a little strange to have this group from Arizona telling New Yorkers what their law should be,” Mr. Trachtman said in an interview. “But they are an advocacy group and they will bring their fight where they want to. I wouldn’t want to say that the groups on our side are limited to where we can bring suits, either.”
New York is one of a handful of states where same-sex marriages fall into a “gray area” in that the state has neither expressly barred such marriages nor specifically legalized them, as Massachusetts has done, Mr. Trachtman said. That makes litigation challenging the recognition of same-sex marriages within New York that are solemnized in places where the weddings are legal to a point of principle worth fighting by groups that both support and oppose same-sex marriages, Mr. Trachtman said.
Mr. Trachtman said he respects Mr. Raum and the other Alliance Defense Fund attorneys he has faced as adversaries in court.
“The individuals we have worked with from the ADF have been courteous and respectful in their personal dealings with us as attorneys, though obviously we believe their attempts to undermine the basic rights of gay people and their families are offensive and wrong,” Mr. Trachtman said.
Mr. Raum, 42, heads the Alliance Defense Fund team on marriage litigation. He received his degree from the law school at Regent University in Virginia Beach, Va., which was founded by the Rev. Pat Robertson.
‘Why Not New York?’
Mr. Raum said his group hears about the cases it takes up in a variety of ways, including through its network of allied attorneys and by inquiries from reporters.
He said the fund litigates in every state in the country.
“Why wouldn’t we be involved in New York?” Mr. Raum said yesterday. “We go wherever the issues arise. It is a national issue, especially when you are dealing with interstate relationships and the recognition of same-sex marriages between states. It is not something that is important only in New York.”
He said the unanimous Third Department ruling in the Civil Service Department same-sex marriage case may hold particular promise of getting to the Court of Appeals because of a concurring opinion by two of the five justices. They observed that a broad recognition of the legality of same-sex marriages solemnized in out-of-state jurisdictions is up to the New York Legislature, not the courts.
Mr. Raum said that reasoning also led the Court of Appeals to refuse to recognize same-sex marriage as legal in New York the last time it considered the matter, in its landmark holding in Hernandez v. Robles, 7 NY3d 338 (2006).
The Court has not considered the issue of the recognition of same-sex marriages contracted in Canada, Massachusetts and other states where they are legal. But Mr. Raum predicted it would adopt his organization’s position on that question as well.
“New York very clearly does not permit same-sex marriage, that was articulated by the Court of Appeals in the Hernandez case and to recognize [same-sex] marriage in another jurisdiction is in direct conflict with that,” Mr. Raum said.
The Alliance Defense Fund filed an amicus curiae brief in the four cases decided by the Hernandez ruling.