Let Legislators Be Legislators

Ruben Diaz

May 30, 2006

By NYS Senator Reverend Ruben Diaz
32nd Senatorial District
(Reverend Ruben Diaz is a New York State senator and president of the New York Hispanic Clergy Organization)

As the stage has been set for a national debate this summer on the proposed Marriage Protection Amendment, New York State is getting ready to decide the constitutionality of its own marriage laws when the court of appeals takes up the issue today in Albany.

In 2004, some nominal plaintiffs selected by the Lambda Legal Defense Fund sued the city clerk of New York for refusing to issue marriage certificates to gay couples. This case, Hernandez v. Robles, was then assigned to Justice Doris Ling-Cohen. As a New York State senator, I along with other state legislators sought to intervene in this suit as party-defendants in order to be entitled to move to dismiss the Hernandez action..

When considering our request to intervene, Justice Ling-Cohen knew that gubernatorial-hopeful and current Attorney General Eliot Spitzer had advised the court in a letter dated June 14, 2004, that his office had chosen not to intervene in the lawsuit to defend the constitutionality of these New York laws.

My application to intervene and be heard was silenced by an order of Justice Ling-Cohen in August of 2004, and she denied the application of the only party truly opposed to this collusive suit.


The case then proceeded in an atmosphere of explicit support of the plaintiffs’ challenge by New York City’s Mayor Bloomberg, an outspoken advocate for gay marriage and against New York State’s law which limits marriage to a union between a man and a woman. Precluding my application to intervene cleared the path for the court to publish Ling-Cohen’s liberal opus in February, 2005, equating gay sexual preference to racial discrimination and rewriting New York State statutes in the process.


Spitzer deferred from intervening when Justice Ling-Cohen’s judgment was appealed and reversed by the Appellate Division in December, 2005. While I joined with others as Friends of the Court in defending the state’s law, no word was heard from the New York State attorney general’s office. Finally, while this case was being briefed at the court of appeals level, Spitzer moved for permission to submit a brief and participate in oral argument. As the chief legal officer for New York State, as the one authorized to defend our laws, his late entrance into the litigation might suggest to the judges on Wednesday that New York State is reluctant to defend its marriage laws.

This past Sunday, New York City Mayor Michael Bloomberg, in his weekly radio address, committed himself and his administration to overturning the state’s laws which protect marriage between man and woman. Can anyone realistically expect New York City’s Corporation Counsel to advocate sincerely against the plaintiff’s position and argue they should not be entitled to have gay marriage when the New York City mayor has openly stated that he supports gay marriage?

The NYS Appellate Division, in reversing plaintiff’s position and overturning Judge Ling-Cohen’s decision, stated:

The legislative policy rationale is that society and government have a strong
interest in fostering heterosexual marriage as the social institution that best
forges a linkage between sex, procreation and child rearing. It systematically
regulates heterosexual behavior, brings order to the resulting procreation
and ensures a stable family structure for the rearing, education and
socialization of children...

We find that the motion court erred in granting plaintiffs summary
judgment.....However, we find it even more troubling that the court, upon
determining the statute to be unconstitutional, proceeded to rewrite it and
purportedly create a new constitutional right, an act that exceeded the
court’s constitutional mandate and usurped that of the Legislature.


Two years ago, on Sunday, March 14, 2004, I gathered tens of thousands of Hispanic Christians from the five boroughs of New York City to demonstrate our support for President Bush’s Marriage Protection Act. We amassed on the steps of the Bronx courthouse, and the crowd spread through neighboring streets. It was a peaceful demonstration of New Yorkers joined to defend the traditional, historical, and moral definition of marriage as between man and woman.

It is not the role of the courts to make our laws. It is the function of the legislature who are elected by the people. Let us do our job.