UB Faculty Experts

EXPERT CONTACT : James A. Gardner Vice Dean for Academic Affairs University at Buffalo Law School 716-645-3607 jgard@buffalo,edu

   "After failed attempts to advance cutting-edge civil rights claims in the New York courts," says Gardner, "proponents of legally recognized gay marriage have achieved their goal the old-fashioned way: by convincing the state legislature to enact a law."

   Gardner, the Joseph W. Belluck and Laura L. Aswad Professor of Civil Justice in UB's Law School and SUNY Distinguished Professor who is frequently quoted about Constitutional Law, elections and other judicial issues, says the gay marriage law passed recently took cues from the successful litigation strategy pursued in Hawaii, Massachusetts, California and Vermont.

    "Advocates of gay marriage turned to the New York courts, where they sought a ruling under the state constitution that the reservation of official recognition of marriages to straight couples violated equality and civil rights guarantees," he says. "New York’s highest court, the Court of Appeals, rejected this claim, although proponents did achieve limited success when a lower court subsequently ruled that New York is constitutionally required to recognize gay marriages performed and officially recognized in other states.  Disappointed in the courts, advocates of  legal recognition mounted a legislative campaign that issued finally in the new legislation."

   Gardner says people often mischaracterize the dispute over gay marriage as whether the law should permit gays and lesbians to marry.  "In fact, to the extent that marriage is understood as a religious institution," Gardner says, "gays and lesbians are not and cannot be prohibited from marrying; their right to marry in private religious ceremonies is fully protected by the U.S. Constitution’s Free Exercise Clause."

    Instead, he says, the issue is over the obligation of the state to extend the same recognition to privately performed gay marriages as it does to privately performed heterosexual marriages. This would extend to gays and lesbians the legal protections – and obligations – that attach upon official state recognition. 

    “The new legislation will thus have no legal impact on the availability of religiously consecrated gay marriages," Gardner says. "It will, however, now extend to gay marriages the many aspects of state law that have long regulated the marriage relationship in terms of property ownership and descent, tax liability, child-rearing, agency, insurance and pension coverage, and so forth.”