Why should it matter whether same-sex couples can marry (as opposed to having civil unions or registered domestic partnerships)? and why should a mainstream bar association care?

This weekend I participated in a historic vote by the NYS Bar Association’s House of Delegates to endorse gay marriage legislation. NYSBA is among the first statewide bar associations to back gay marriage and to urge the state legislature to enact the necessary amendment of state law to allow same-sex couples to marry and to recognize marriage if contracted elsewhere. Of particular interest is that just a few years ago this same organization passed a resolution taking a neutral stance as among three alternatives: gay marriage, civil unions and domestic parnership registries. Since 2005 the thinking of the vast majority of the members of the House has shifted to such an extent that the resolution endorsing gay marriage as the only acceptable guaranty of equal rights passed by a near-unanimous voice vote.

Many who spoke in favor of the resolution yesterday had voted against the much milder 2005 version. Influential, of course, have been the six states that have adopted gay marriage legislation since then. Also crucial was a report by the NYC Bar Association in 2007 that identified 1,324 ways in which New York State law benefits spouses only and are therefore denied to same sex-couples. The examples range from the mundane to the profound, e.g., laws which:

*Ensure that a spouse may not be disinherited and that he or she may take a share of a deceased spouse’s estate against the decedent’s will;

*Ensure that a child born to a married couple is legally presumed the natural child of the husband and wife for all purposes, including custody, visitation, and child support, even if the child was conceived through artificial insemination by a third party or born prior to the parents’ marriage;

*Award priority in public housing assignments and numerous other benefits to the surviving spouse of a deceased veteran;

*Enable spouses of military servicemembers to attend New York community colleges at the same cost as New York residents; and

*Require a spouse to continue supporting his or her ex-spouse even after divorce if the other spouse would otherwise be incapable of self-support and therefore likely to become a public charge.

Without civil marriage, these matters must be arranged for law-by-law or even family-by-family.

The NY State Assembly has already passed gay marriage legislation, but the State Senate - long a more conservative body (and at the moment a non-functioning one) - has taken the Bar Association’s neutrality on the topic as a signal that its members need not follow suit.

Yesterday’s vote sends a strong signal that gay marriage is not just a social issue but an important legal matter as well, and the only way to grant full equality to same-sex couples and their families.

Author: Lesley Rosenthal

LESLEY ROSENTHAL teaches, writes, and talks incessantly about the law. She has developed a curriculum called Advocating for the Rule of Law: A Practical Approach, and she has designed and conducted workshops for artists, lawyers, writers, and others seeking to learn more about how to activate democracy. She is the Chief Operating Officer & Corporate Secretary of The Juilliard School and the author of Good Counsel: Meeting the Legal Needs of Nonprofits (Wiley 2012). Ms. Rosenthal holds a JD from Harvard Law School and a bachelor’s in philosophy, magna cum laude, from Harvard College. She is president of the New York Bar Foundation and a member of the Council on Foreign Relations. Follow her on Twitter or Facebook @GoodCounselBook and @LetUSROL