Leonard Link

NY Upstate Appeals Court Finds Public Schools Are Subject to Human Rights Law

This may sound like an arcane issue, but actually it is quite significant because of the anomalies and peculiarities of New York State Law.  Does the state's Human Rights Law (Executive Law Section 296) apply to the public schools (K-12), so that a student who has been subjected to bullying that their school refuses to address effectively can file a claim with the State Division of Human Rights and seek monetary and injunctive relief if the bullying is due to one of the characteristics listed in the Human Rights Law? 

In an opinion announced on June 30, Ithaca City School District v. New York State Division of Human Rights, No. 510106, a five-judge panel of the Appellate Division, 3rd Dept., ruled by a vote of 4-1 that the Ithaca School District is covered by the law, and affirmed the Divison's award of damages and injunctive relief on behalf of an African-American student who had been frequently harassed by white students on the school bus.  The ruling is notable because it opens up a split of authority on the jurisdictional question, disagreeing with the 2nd Department's ruling in East Meadow Union Free School District v. New York State Division of Human Rights, 65 App.Div.3d 1342 (2009), leave to appeal denied, 14 N.Y.3d 710 (2010). 

The Human Rights Law is codified in the New York Executive Law.  Executive Law Section 296(4) makes it "an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law to. . . permit the harassment of any student or applicant, by reason of his race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status."

 

In this case, Justice Robert C. Mulvey of the Tompkins County Supreme Court had ruled in favor of the School District, following the 2nd Department precedent.  (Under New York practice, an uncontradicted ruling by any Department of the Appellate Division is binding on all the trial courts in the state.)  In reversing, the majority of the Appellate Division panel, in an opinion by Justice Leslie E. Stein, directly rejected the reasoning of the 2nd Department, which had relied on the state's General Construction Law to find that the term "education corporation or association" -- a term not defined in the Human Rights Law -- does not include the state's primary and secondary public schools.  The 2nd Department premised this ruling on the contention that school districts are "municipal corporations," not "education corporations," and that the terms "education corporations" and "education associations" was meant by the legislature to refer to private schools and institutions of higher education (colleges, universities, professional schools). 

"Even assuming, arguendo, that the tortured legislative history underlying General Construction Law sections 65 and 66 - as well as various other statutes - supports petitioner's argument that the definitions of 'education corporation' and 'education association' therein do not embrace public school districts," wrote Justice Stein, "the fact remains that this does not, as petitioner contends, necessarily mean that these definitions are applicable to Executive Law Section 296(4).  The approach advocated by petitioner completely ignores General Construction Law Section 110, which provides that the General Construction Law is not intended to supply a missing definition in a particular statute when the 'general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by [the General Construction Law.]'"

Justice Stein pointed out that the Human Rights Law is a remedial statute that "must be liberally construed to accomplish its beneficial purposes - one of which is to eliminate discrimination in 'educational institutions' (Executive Law sections 290, 300) - 'and to spread its beneficial results as widely as possible,'" citing to a recent decision by the state's highest court, Rizzo v. New York State Division of Housing and Community Renewal, 6 N.Y.3d 104 (2005).

Justice Stein also observed that the school district's contention would require concluding that the legislature "intended to provide its protection against discrimination only to the relatively minuscule percentage of students whose families can afford to send them to private, non-religious schools, relegating public school students to other more onerous and/or less comprehensive remedies."  The court found that this would be "clearly contrary to the express purpose of the Human Rights Law."

The sole dissenting judge, Justice Robert S. Rose, agreed with the 2nd Department, arguing that it seemed clear from the wording that the Human Rights Law provisions were intended to apply to post-secondary education and not to the state's public primary and secondary schools.

On the merits of the case, the court found that the Division's finding of a violation was sustained on the record and upheld the award of $200,000 damages to the student and the grant of injunctive relief against the school district, requiring it to take various steps to deal with the harassment problem.  The court did cut down the amount of damages awarded to the student's mother, from $200,000 to $50,000, finding that the record concerning emotional distress she suffered was not sufficient to sustain the larger amount.

Michael K. Swirsky of the State Division of Human Rights argued the case for the Division, with the Ithaca attorney Raymond M. Schlather (of the firm Schlather, Stumbar, Parks & Salk) appearing for the complainants, Amelia Kearney and her daughter.  Cecilia Chang of the the Attorney General's office supported the Division's position as amicus curiae, as did Lambda Legal on behalf of Advocates of Children of New York and other organizations.  Jonathan B. Fellows of the Syracuse law firm Bond, Schoeneck & King, represented the school district.

One might ask why there is no reference in the court's decision to the Dignity for All Students Act (DASA), enacted last year to deal with the problem of bullying in the public schools.  The answer is twofold: first, DASA was not in effect at the time of the incidents that gave rise to this case (2005-2006).  Second, and perhaps more importantly, DASA does not authorise student victims of bullying to file lawsuits for damages and injunctive relief.  DASA imposes obligations on school districts to adopt policies to deal with bullying, to institute training programs, and to facilitate mechanisms to respond, as well as to report their actions to the State Education Department, but it does not focus on individual claims -- perhaps because the legislature could believe that students with individual complaints could resort to the provisions of the Human Rights Law for relief. DASA was intended to be proactive in requiring school districts to address the problem, and it would be up to state education authorities, presumably acting through the Attorney General, to take action against school districts that fail to fulfil the requirements of DASA.

Now that there is a split of authority between the Departments, trial courts in the 3rd Department will be bound by this ruling, while courts in the 2nd Department will be bound by that Department's ruling (and, in a footnote, Justice Rose points out that the Division does not accept complaints against public school districts from within the boundaries of the 2nd Department at present due to that ruling). The trial courts in the 1st and 4th Departments will be free to choose which precedent to follow for now, and presumably the Division will continue to accept complaints coming from those parts of the state.  If the City of Ithaca seeks review in the Court of Appeals, one suspects review would be granted in order to reconcile the difference and adopt a unitary approach for the state.  Such would certainly be advisable.

NY Court Overturns Suspension of Openly Gay High School Librarian

Finding that a labor arbitrator's imposition of a 6-month suspension without pay was "shocking to this court's sense of fairness," New York Supreme Court Justice Manuel J. Mendez vacated the arbitrator's decision and ordered that an openly gay high school librarian be restored to full employment status with back pay and without any requirement for counseling or training.  The decision in Asche v. New York City Board of Education, 108528/10, NYLJ 1202498891395 (N.Y. Supreme Court, N.Y. County) was reported in the New York Law Journal on June 30, 2011.

According to Justice Mendez's opinion, Christopher Asch, "an openly gay man," has more than twenty years of service and holds a tenured appointment as a librarian with the New York City Department of Education (DOE).  He was employed at Stuyvesant High School. The DOE brought charges against him in June 2009 based on two issues.  The first involved a claim that he violated rules by failing to obtain parental permission before taking a group of students on a field trip to Boston. The other involved allegations by some students that he had been touching them improperly in the library.  

After an investigation by the Office of the Special Commissioner of Investigations (SCI), criminal charges were filed against Asche, which received some publicity in the press, but the district attorney's office, upon its own investigation, determined that there had been no criminal activity warranting prosecution.  Nonetheless, DOE sought Asche's dismissal, and he was reassigned to the infamous "rubber room" pending the outcome of his case.  Under the Education Law, the issue of his discharge was subject to mandatory arbitration.  A hearing stretching over twelve days between November 2009 and January 2010 was held by Arbitrator David Hyland, designated as a "hearing officer" for this purpose under the Education Law.

Evidence presented at the hearing was conflicting.  It seems that Asche was a last-minute substitute for a parent chaperone on the Boston trip, which did not involve a school-sanctioned club activity, but Hearing Office Hyland found that Asche was still responsible for obtaining appropriate permission for the students, at least one of whose parents had indicated that the student could not go.  The issue involving touching was more complicated.  There was evidence at the hearing that it was customary in the library for librarians to touch students to get their attention without having to raise their voices, in order to maintain quiet in the library.  There was specific testimony that a heterosexual female librarian engaged in the same conduct as Asche and was never cited or disciplined for it.

Hearing Officer Hyland found that none of the touching that students complained about was sexual in nature, but that some of it was "inappropriate," and Asche claimed that Hyland had inappropriately rejected attempts to show that there was some sort of conspiracy by homophobic students to get him fired.  Wrote Justice Mendez, "The hearing officer did not find substantial cause rendering petitioner unfit to perform his obligations of service, but found he had neglected his duty and that some of the charged conduct was unbecoming to his position or was prejudicial to the good order, efficiency or discipline of the service."

Although Hyland rejected the DOE's demand that Asche be terminated, he ordered a six-month suspension without pay, and that Asche be required to "attend counseling and/or training to understand appropriate professional and physical boundaries between himself and the students, whether in management of student behavior in the library or otherwise."

Representing himself, Asche appealed his suspension, complaining that his right to be free of sexual orientation discrimination under the state's Human Rights Law was violated.  He argued that Hyland's conclusions were "arbitrary and capricious," in light of the testimony that his conduct was no different in kind from that of a heterosexual female librarian who had not been charged with misconduct or subject to discipline.  He argued that the penalty imposed on him was "shocking to one's conscience" and would "have a chilling effect on gay, lesbian and transgender individuals employed in the education system because they would be subject to actions by students based on their sexual preferences and not their actual conduct."

Justice Mendez sided with Asche, concluding, "The public policy considerations embodied in [the Human Rights Law] were violated by the finding that petitioner, an openly gay man, engaged in inappropriate touching when his actions, i.e., touching, whispering and standing silently next to students, were the same as the heterosexual female librarian. . .  No charges were brought against the female librarian, and she was not required to attend counseling or training."

"Hearing Officer Hyland may not have intended to discriminate against the petitioner," Mendez continued, "but the opinion and award has that effect.  Petitioner has the right not to be discriminated against or abused by students based on his sexual orientation."  Justice Mendez noted that the SCI investigator had testified at the hearing that "whispering and touching students on the shoulder was generally acceptable to get their attention in the library."  Mendez concluded that "there is no rational basis for a finding that his touching of students, which was done in the same manner as a heterosexual librarian, constitutes an inappropriate touching; especially given his history of 20 years of exemplary service."

Normally a court is not authorized to substitute its judgement for that of an arbitrator on the merits of a case, but Mendez noted that a ruling that was "shocking to one's sense of fairness" could be set aside.  "The nonexistence of a prior disciplinary record in twenty years and the financial impact of the six month suspension without his salary, is clearly disproportionate to petitioner's conduct," wrote the judge.  "He was forced to defend himself against criminal charges and was exposed to the stigma of being described as a 'pervert' in the press.  It is shocking to one's sense of fairness that petitioner is required to attend counseling or training to understand appropriate professional or physical boundaries, when touching and whispering is acceptable practice, and was done in the same manner that was permissible if performed by the heterosexual female librarian."  Indeed, Mendez noted evidence in the record that among all the librarians employed at Stuyvesant High, Asche was deemed the least physically intrusive with students to maintain order in the library.

Mendez concluded that Asche, representing himself in the appeal, had met the burden required to overturn the arbitrator's award.  "A legally recognizable cause of action can be identified even if it is not skillfully prepared," he wrote, denying the Education Department's motion to dismiss Asche's petition on technical grounds, and ruling for Asche on the merits. 

The Education Department was represented by the City Corporation Counsel's Office, which will have to decide whether to appeal.

Be Careful What You Wish For.... Collateral Damage from Marriage Equality?

One of the fears of those observing the campaign for marriage equality is that if same-sex marriage becomes available, progress on getting recognition for alternative arrangements that some might prefer could be lost.  After same-sex marriage became available in Massachusetts in 2004, some employers that had been providing domestic partnership benefits for same-sex partners of their employees dropped the program, announcing that those who wanted to keep getting the benefits could get married.  Not all employers did this, and those who had made partner benefits available generally, not just to same-sex partners, tended to keep the plans in place.

The Wall Street Journal, always looking at the business angle of any new development, got to work after the NY Marriage Equality Act was signed, calling around to major corporate employers with domestic benefits policies to find out what they were planning for New York.  They found two large employers, Raytheon and IBM, which announced that gay employees who wanted to keep partner benefits would have to marry their partners.  But most of the employers questioned had not made a decision yet or said they weren't planning to change.

From the legal perspective, private sector employers can pretty much do what they want on this, unless they have entered into collective bargaining agreements or individual employment contracts that specifically provide for partner benefits, in which case negotiations would be necessary before any change under labor relations law or contract law.  But most private sector employers are not dealing with unions and don't have individual binding contracts concerning their benefit plans.  Under the federal Employee Retirement Income Security Act, employers can modify employee benefit plans so long as they follow any steps laid out in their plan.  And ERISA preempts state law affecting employee benefits, so New York employee benefits law is pretty much irrelevant to this question.

That means the issue is whether employers decide as a matter of company policy that it makes sense to maintain existing domestic partner plans, or whether a change is in order.  For those employers who extended the benefits solely to remedy a pay equity issue -- i.e., to make sure that their gay employees were receiving equal compensation to their non-gay employees -- the availability of same-sex marriage beginning July 25 suggests that equal treatment means gays have to marry their partners.  But I think employers need to step back and consider the big picture here.  Why do employers provide employee benefits at all, when they are not mandated by law?  Presumably because such benefits serve a useful function in their business.  Having good benefits makes an employer competitive in the labor market, builds employee loyalty and thus promotes retention of good workers, and also helps employee morale.  Having a benefits plan that is inclusive of non-traditional familes, whether they involve same-sex couples or all varieties of family life, sends a signal of acceptance of family diversity that is especially attractive to younger workers who are growing up with newer, flexible notions of what constitutes a family.

Census data tell the story.  Over time, the various forms of family units in our society have been evolving and the "traditional" mom + pop + 2.5 kids is a minority of family units today.  Many different-sex couples live together quite happily without being married, sharing a household, caring for each other, varying in how they set up their financial arrangements.  Exhibits A and B - Governor Cuomo and Mayor Bloomberg.  An employer whose benefits policy hinges on marital status is way behind the times, since it is likely that a significant portion of their workforce includes people living in non-marital relationships.  While many gay employees with long-term partners may decide to marry, some will not, but will still need these benefits for the well-being of their household, and that relates back quite directly to many of the reasons why employers provide benefits in the first place.

So I would urge that employers think this through carefully.  For those who have provided benefits only for same-sex partners, now may be the time to restructure so that all employees who can meet reasonable criteria concerning unmarried partners can obtain equal benefits treatment with married employees.  The tax burdens associated with this, in light of the restrictive federal policies on family structure under the Tax Code, may deter some eligible employees - and some companies have decided to counter that by picking up the extra tax costs -- but the main point here is that people should have the option.

Amidst the celebrations of Friday night and the ensuing weekend, one hopes that the enactment of this landmark law does not mean that some people are forced to marry against their will to retain benefits and others who are not interested in a legal marriage for their relationship suddenly find themselves without affordable insurance coverage.

Marriage Equality in New York - A Triumph of Political Will

More than doubling the portion of the United States population living in jurisdictions where same-sex couples are entitled to marry, New York’s legislature approved a pending Marriage Equality bill late on Friday, June 24, and Governor Andrew Cuomo signed it into law just prior to midnight.  The new law would go into effect 30 days after enactment.   It amends the statutory definition of a marriage in Section 10-a of the New York Domestic Relations Law to provide: “A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex,” and mandates that same-sex and different-sex marriages be treated the same by the government.  When it becomes effective, according to a study of U.S. Census data by the Williams Institute at UCLA Law School, the percentage of the population living in jurisdictions authorizing same-sex marriage will go from about 5.1% to over 11.4%.

Passage of the measure, a version of which had been approved by the Democratic-controlled State Assembly in three prior sessions but rejected by the State Senate in 2009, was widely attributed to the decisive leadership provided by Governor Cuomo, who made its passage one of his leading legislative priorities for 2011.  As soon as the state budget (the number one priority) was approved, the Governor turned to this issue and summoned leaders of gay political groups to a strategy meeting at which agreement was achieved to present a united, coordinated campaign, with the Governor playing a personal role in lobbying legislators of both parties.  The Governor also met with some influential Republican business leaders, who agreed to help underwrite the campaign and to assist in persuading a handful of Republican State Senators to vote for the bill, in the face of threats by the influential Conservative Party to actively oppose re-election of any Republican Senators who supported the bill, according to a post-enactment report by The New York Times.

Supported by an aggressive campaign of letters, phone calls, emails, Facebook page postings, and personal lobbying in district offices and in Albany, the Governor was able to persuade four Democratic senators who had voted against the bill in 2009 to change their positions, and ultimately won over four Republicans to create the necessary margin for victory in the Senate, a chamber controlled by the Republicans by a margin of 32-30. 

The measure passed the Assembly by a vote of 80-63 on June 15 in the form introduced by the Governor, and then passed the Senate 33-29 more than a week later in the waning moments of the legislative session, having been placed last on the agenda by the Republican leadership.   The Senate vote came after the Assembly had agreed to a separate package of amendments rewriting the “religious exceptions” that had been part of the Governor’s bill.  The main suspense in the final days was about whether the measure would win the final one or two Republican votes necessary to make a majority (as the last two Republican Senators in question had refused to announce their positions publicly until the actual voting began), and whether the Republican Caucus would agree to allow the measure to come to the floor.  

The Republican Caucus was overwhelmingly opposed to the bill, and held numerous lengthy closed-door meetings about whether to allow it to come to the floor, as a handful of “undecided” Senators negotiated with the Governor over revisions to the “religious exception” language in the Governor’s bill.   On Friday afternoon, agreement was reached between the Governor and the Republican negotiators and a package of amendments was framed to be submitted to the Assembly and sent to the Senate floor.  It was a politically interesting move for the Republican Caucus to agree to a floor vote, knowing that a measure that many of them strongly opposed was likely to pass.

Much of the media attention and public comment surrounding the “religious exceptions” focused on what should have been a non-issue: whether religious officials and entities were sufficiently protected from liability in case they refused to perform religious marriage ceremonies for same-sex couples and refused to make their facilities and services available for ceremonies solemnizing same-sex marriages.  The bill as originally introduced by the Governor seemed to adequately provide for these exemptions in straightforward language, and mirrored or even went beyond the minimum that would probably be required by the Free Exercise of Religion requirements of the federal and state constitutions.  However, various Republican Senators held out for more, seeking to ensure that local as well as state government would be bound by the exceptions, and, in some cases, apparently seeking to more broadly exempt religious and religiously-affiliated institutions from having to provide recognition of same-sex marriages in contexts beyond marriage ceremonies.  The exemption language in the final bill was convoluted and not ideally clear, but ultimately appeared to track the existing exemptions contained in the state’s Human Rights Law.  Perhaps this is in the nature of legislative compromise, as it left the Republicans stating that they had achieved a broader religious exemption than originally contemplated in the Governor’s bill, while the Governor and marriage equality proponents were left proclaiming that the final language did not “cross the line” to an inappropriately broad exemption. 

Here is the language, so readers can judge for themselves:

Section 10-B.  Religious Exception. 

1.  Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the Education Law or Section Two of the Religious Corporations Law, or a corporation incorporated under the Benevolent Orders Law or described in the Benevolent Orders Law but formed under any other law of this State, or a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.  Any such refusal to provides services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation.

2.  Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to subdivision eleven of Section Two Hundred Ninety-Six of the Executive Law, of any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization,  to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.

3.  Nothing in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under Section Three of Article One of the Constitution of the State of New York.

The religious exception section also contains a paragraph immunizing any “clergyman or minister” from any sort of adverse legal consequence for refusing to perform a marriage, and a “poison pill” provision, stating: “This Act is to be construed as a whole, and all parts of it are to be read and construed together.  If any part of this Act shall be adjudged by any Court of competent jurisdiction to be invalid, the remainder of this Act shall be invalidated.  Nothing herein shall be construed to affect the parties’ right to appeal the matter.”  Thus, any successful attack on any provision in the Marriage Equality Act will invalidate the entire Act.

While the religious exception provisions make crystal clear that no religious or benevolent association may be required to take part in any way in a marriage of which it disapproves, the extent to which other non-profit organizations with religious ties or affiliations may be privileged to discriminate against same-sex spouses is not ideally clear, especially in light of the phrase “from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained,” as applied to charitable or education corporations that are “operated, supervised or controlled by or in connection with a religious organization.”  This language is taken from N.Y. Executive Law Section 296(11), the religious exception language in the New York State Human Rights Law. 

For example, would the “religious exception” have the effect of overruling the decision by the New York Court of Appeals in Levin v. Yeshiva University, 96 N.Y.2d 484 (2001), which found that the Orthodox Jewish university’s medical school (Einstein Medical College) had unlawfully discriminated against a lesbian student by refusing to allow her to have her same-sex partner live with her in University housing that was provided for married students?  The University’s policy restricted occupancy of dormitory rooms, and they did not allow students to take in roommates who were not also students unless they were married to a student.  Would a religiously-affiliated hospital be privileged to refuse to recognize a patient’s spousal relationship to a married same-sex partner for this purpose?  Would a religiously-affiliated residential facility (such as a retirement home, group home for persons with mental disabilities, or a nursing home, for example) be similarly privileged to refuse to recognize same-sex marital relationships of patients if their ownership or operational structure fell within the definition of the exception?  These are all institutions that might conceivably qualify for the exception, depending how the language is interpreted, and there is a lack of legislative history to shed light, since there are no committee reports, no hearings were held on the exception language, which was negotiated in secret, and the text was not made public until it was presented to the Assembly and Senate on Friday June 24 for a vote.  The Governor’s bill was accompanied by an explanatory memorandum that focuses on the existing Human Rights Law exceptions, but does not directly answer these questions.   Due to changes in Medicaid regulations implemented by the Obama Administration, it is generally believed that health care organizations that receive Medicaid funds will not be able to discriminate, regardless of any state law religious exceptions.

This question does not arise with respect to many employee benefits issues, most particularly health insurance and pension rights, because of federal preemption under the Employee Retirement Income Security Act [ERISA] of any state law affecting employee benefits plans, as defined in that federal statute.  However, employee benefits not part of a plan covered by ERISA, such as unpaid family leave, could be subject to state regulation; the religious exception provision most likely insulates religious and religiously-affiliated employers from having to extend such fringe benefits to same-sex spouses of employees.

Thus, with the exception of more clearly spelling out the applicability of the religious exceptions to local and municipal governments, it may be that the amendments to the religious exception language negotiated in the days leading to enactment did not necessarily broaden the exception beyond what the Governor had originally proposed, in line with existing language in the Human Rights Law, and that claims by the Republican negotiators to have secured more than that have more to do with politics than legal substance.

Prior to the enactment of the Marriage Equality Law, many New York courts and government agencies had recognized same-sex marriages contracted in Canada or in other states, but the State’s Department of Taxation and Revenue had refused to do so.  The courts and other state agencies had premised marriage recognition, in part, on the lack of any New York version of the federal Defense of Marriage Act, so that there was no explicit state legislative barrier interposed against recognition, at least in the contexts in which the issue arose in litigation (about government employee benefits, divorce, estate administration).  The Tax Department, on the other hand, relied on Section 607(b) of the New York Tax Law, which provides: “Marital or other status.  An individual’s marital or other status under [state income tax provisions] shall be the same as his marital or other status for purposes of establishing the applicable federal income tax rates.”  In other words, the Tax Department took the position that it could not deviate from a legislative mandate that individuals be considered under New York law to have the same filing status as they have under federal law for purposes of the state income tax.  Under federal law, due to Section 3 of the Defense of Marriage Act, same-sex couples are treated as unmarried despite the legal status of their relationship under state law.  Legislation is pending in Congress to address this problem, but is given little chance of advancing in the current session.

The Marriage Equality Act provides: “No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex.  When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law.”  In a section of the Marriage Equality Act labeled “legislative intent,” the law states: “It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law.  The omission from this act of changes to other provisions of law shall not be construed as a legislative intent to preserve any legal distinction between same-sex couples and different-sex couples with respect to marriage.  The legislature intends that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage, or which in any other way may be inconsistent with this act, be construed in a gender-neutral manner or in any way necessary to effectuate the intent of this act.” 

This language suggests an implicit amendment of Section 607(b) of the state’s Tax Law, eliminating different treatment under New York tax law for same-sex spouses as compared to different-sex spouses.  Under general principles of statutory interpretation, when two statutes come into conflict, the newer law is said to predominate over the older law, even if the newer law does not explicitly repeal or amend the older law.  However, there is also a canon of statutory interpretation providing that when statutes conflict, the more specific would take priority over the more general.  The Marriage Equality Act adopts a general policy of formal equality, while Section 607(b) provides a very specific rule requiring uniformity of filing status between federal and state income taxes.  Implicit repeals of specific rules by general statutes are usually, but not invariably, disfavored.  The statement in the “intent” section that the legislature intends equal treatment, regardless whether particular provisions of state law requiring something different have not been changed, suggests that the drafters of the Marriage Equality Act, to the extent they were concerned about this issue and intended that same-sex married couples be treated under the Tax law in an equal manner with different-sex married couples, would say that same-sex married couples are to be deemed married for purposes of New York’s personal income tax law. 

The Tax Department needs to issue an advisory as to this, and as to any other issues of potential differential treatment that could raise questions for taxpayers, such as estate and gift tax issues, which are not directly addressed in Section 607(b).   The marital deduction under the Estate Tax is potentially a big issue for married same-sex couples who own real property or other significant assets, and the practice under the New York Tax Law has been to use federal criteria for determining eligibility for a marital deduction.  But the legal effect of enactment of the Marriage Equality Act for purposes of the state’s tax laws might not be finally determined – in the absence of legislative clarification – until a same-sex married couple hit with the marriage penalty (i.e., higher taxes because cumulating their income puts them into a higher tax bracket for some of their income) tries to argue that they should be allowed to continue filing as single individuals so long as this status is required under Federal tax law.  The ACLU’s pending DOMA challenge in the U.S. District Court in Manhattan, Edie Windsor’s suit for an estate tax refund, illustrates the marital deduction issue, and might lead to a resolution of that problem.

At the end of the day, the political enactment of Marriage Equality in New York State is a landmark achievement in the movement for equal rights for sexual minorities, whose significance overshadows details about religious exceptions and tax status.  These issues have been worked out on a state-by-state basis in other jurisdictions as same-sex marriages, civil unions, and domestic partnerships have spread on both coasts and in the heartland, but they have not taken away from the overriding significance of legal recognition for the relationships of LGBT people who have for so long been treated by government and society as “legal strangers” of their intimate partners.  

New York Philharmonic Subscription Season Finale: Janacek's "Cunning Little Vixen"

To judge by his first two seasons as music director, and the announced plans for next season, Alan Gilbert likes to end the season with a real bang, bringing a big production of a work not previously played by the New York Philharmonic that includes unusually large forces (singers, chorus), sets, costumes, staging, etc.  Last year, it was Ligeti's Le Grand Macabre.  This year, last week, it was Janacek's opera known in English as "The Cunning Little Vixen."   Next year, the season will end with what should be a spectacular NYP premiere of Stockhausen's Gruppen for three orchestras, spatially distributed around the hall.

I attended the last performance of the Janacek, on Saturday night, June 25.  I marvel at the NYP's willingness and ability to turn over their final subscription week to such a logistically complicated and undoubtedly expensive effort.  In addition to the normal costs of presenting an orchestral concert, this staged opera performance required a chorus, a large cast, stage direction and choreography, costumes, sets, surtitle projections, and sacrificed some seating revenue due to the substantial stage extension and platform out into the hall.  While this was the first performance of this piece by the orchestra, The Cunning Little Vixen was presented by New York City Opera in a delightful production about 20 years ago, so perhaps the need for it was not nearly so pressing as for last year's Ligeti, which was a first New York City presentation.  Nonetheless, that this delightful opera was being brought to us after a generation's absence from local live performance made it a genuine novelty for most of those attending the concerts, and, as Gilbert observed in the program book, it is a "great opera" and the chance to hear it rendered by an orchestra of this quality is a rare privilege.

As was done last year, the creative responsibility for the visual end of the production was turned over to the inventive Doug Fitch and his creative team, and they did a splendid job, with very colorful costumes constructed, in part, from "found objects" injecting an improvisatory and humorous element.  The cast entered fully into the spirit of the staging.  Isabel Bayrakdarian as the Vixen made an extaordinarily successful NY Philharmonic debut, singing up a storm while prancing around the stage (including an extension built out into the orchestra section) in an athletic display that one suspects would be far beyond what most operatic sopranos could emulate.  Marie Lenormand was equally compelling as the Fox, Vixen's love interest. 

For the "people" cast, we had a distinguished line-up of Alan Opie as the Forester, Melissa Parks as the Forester's Wife, Keith Jameson as the Schoolmaster, Wilber Pauley as the badger, John Kawa as the innkeeper, and the "people" role that stole the show as far as I was concerned, Joshua Bloom as the poultry-dealer poacher who put an end to the Vixen.  Bloom had also appeared in last year's Ligeti production, and it was a pleasure to hear him again.

Much of the diverting stage action called upon a corps of talented youngsters who scampered about in their various animal costumes, apparently having a grand old time, sometimes providing adorable singing as well.

The orchestra was somewhat reduced in the string section, squeezed into the back of the stage to leave plenty of room for the action, but one did not feel any lack of depth in the sound, and the entire performance seemed inspired.  This opera includes lengthy orchestral sections without singing, essentially scenic music to accompany choreography as the animals in the forest go about their lives, so it is important to have a first-rate orchestra on hand when it is performed.  That was certainly the case for this production.

These season-ending blockbusters reinforce the important contribution that the NYP has been making to the cultural life of New York City in the Alan Gilbert era.  I hope and trust that funding can be found for continuing innovation in programing, and look forward eagerly to hearing what they do with Stockhausen at the end of next season. 

Michigan Court of Appeals: Rejecting a "Gay Panic" Defense?

The headline in a Michigan newspaper reported this as the court rejecting a "gay panic" defense, which may be overstating things slightly.  Nonetheless, the decision by the Michigan Court of Appeals to uphold the verdict in People v. Cutler, No. 296078 (June 16, 2011)(unpublished disposition), is certainly welcome.

Dale Cutler was convicted of assault with intent to do great bodily harm and was sentenced as a habitual offender-fourth offense to serve 11-25 years and to make financial restitution to his victim, a man named Ryan Young.  According to the trial record, Young's version of the story was that he was out at a bar with friends celebrating his birthday.  Cutler, not an acquaintance, ended up sitting and drinking with him and they go friendly.  Somebody dropped off Young and Cutler at Young's apartment.  When they got inside, Young testified, he went into his bedroom to change and asked Cutler, "Did you want to do anything or did you just want to go to bed?"  Cutler responded, "Yeah, I'm going to do something, you fucking faggot," and proceeded to beat up Young so badly that he ended up in the hospital, going in and out of consciousness for several days, his face bashed in from repeated hard punching.

Cutler's version is different, of course. He claimed that when they got back to the apartment, Young told him he could sleep in the bedroom and Young would crash on the couch.  But Cutler claims the next thing he remembers after passing out on the bed, fully dressed, was waking up "to a very bad smell in my face, really bad alcohol.  And there was wetness on my ear and my pants were unzipped and there was pressure in my genital area."  Cutler claimed he was "in shock" to discover that Young had "his mouth on my neck" and "his hand in my pants."  Cutler claims he shoved Young away, then Young tried to get on top of him and punched him in the face, to which Cutler responded with a struggle.  "I think it was my momentum that threw him off the bed but we ended up rolling of the bed and I ended up on top.  I think the hold broke when we fell to the ground.  Then I was on top then and I punched him... Probably about four or five times... Then I got up and left."

Cutler admitted in his testimony that he was a "pretty good size guy"  (the court later comments that Young is short and slightly built and Cutler is large), that he had been an unofficial bouncer at a bar and had trained for cage fights so he "did strike pretty hard."  Cutler claimed that the hitting was "an explosive burst" and admitted that Young was unconscious on the ground when he left.  He did not call for medical assistance.  Evidently a neighbor found Young and took him to the hospital.

At trial, Cutler requested that the judge charge the jury on self defense.  The trial judge rejected the request.  After reviewing the evidence, the trial judge said, "It really is somewhat clear from his testimony later on that he did this because he was sexually molested by someone else and just as he never thought about reporting it, he was surprised that Mr. Young would report it.  In essence that he got what he deserved and I'm not seeing anything that indicates that Mr. Cutler was in any way in any fear of being assaulted or any type of harm that would justify what he did.  The request is noted but it is denied."

The jury then took 23 minutes to convict Cutler, who appealed claiming error in the denial of the self-defense charge.  The court, per curiam, characterized this as a "close question," but then said, "However, having reviewed the record, and the trial court's reasoning for denying the instruction, because the testimony in the record supports the trial court's characterization of the evidence, and the question whether an instruction is applicable to the facts of the case is reviewed for an abuse of discretion, we find no abuse of discretion in the trial court's decision to deny the instruction."

The court noted the physical disparity between the short, slight Young and the big bruiser, Cutler.  "Even accepting defendant's testimony that the victim sexually assaulted him and punched him once in the head, defendant cannot assert self-defense because he used excessive force to repel the attack he claims was mounted by the victim.  Indeed, defendant did not try to merely subdue the victim, but punched the victim in the face hard enough to knock out teeth until the victim was unconscious.  Given defendant's fight training and the size difference between him and the victim, this far exceeded the force necessary for defendant to defend himself."

The other issue raised by Cutler on appeal had to do with a statement he made while in police custody that was admitted in evidence, from which the jury would learn that he had gotten into similar scrapes in the past.  The court rejected the argument that the trial judge erred by admitting the statement, or that the failure of Cutler's defense attorney to get it excluded constituted ineffective representation.

Traditionally, the so-called "gay panic defense" has been that the defendant's psychological reaction to a sexual advance from another man resulted in involuntary violence on his part - that he lost control under circumstances that should be held to reduce or eliminate the culpability for the results of his conduct.  I don't think that was quite the argument in this case.  In any event, there are two versions of the facts to deal with.  If the jury believed Young's testimony, Cutler engaged in an extremely violent response to a verbal solicitation that involved no physical aggression by Young.  If Cutler's version was believed, Young's sexual assault of Cutler provoked a grossly disproportionate response.  Either way, the trial court would not instruct the jury on self-defense in light of the circumstances, and the Court of Appeals found that refusal of the self-defense instruction was within the reasonable discretion of the trial court.  A sexual solicitation, and even some sexual contact, does not give license for the kind of violent response documented in this case.

Henk Neven - Love the Voice of This Deep Dutch Baritone

After reading a rave review in Fanfare, I had to hear the new recital disk by Dutch baritone Henk Neven, singing songs by Carl Loewe and Robert Schumann accompanied by pianist Hans Eijsackers.  It's an import on the Onyx label.  I'm glad I took the trouble to order it, because this is one spectacular recording.

To begin with, Neven has an absolutely, positively gorgeous deep baritone voice, which he handles with sensitivity and agility to produce a warmly compelling sound.  He also seems very sensitive to the words he is singing, and has a close collaboration with his excellent pianist.  The recording presents a warm soundstage, enough reverberation but plenty of focus so that nothing is blurred or lost.  The booklet, a model of its kind, includes a brief introduction by Mr. Neven, fine notes about the music by Carenza Hugh-Jones, and German texts with English translations.  The cover features a nicely posed photo of Mr. Neven, who looks like a friendly sort of fellow.  The entire thing is a high-class production, and will surely win friends for Loewe, Schumann, and these terrific performers.

Worth seeking out and playing repeatedly!

Wisconsin Circuit Judge Rejects Challenge to State Domestic Partnership Registry Law

Dane County Circuit Court Judge Daniel R. Moeser has rejected a constitutional challenge to the validity of Wis. Stats. Chapter 770, the Domestic Partner Registry Act, finding that it does not create a "legal status" that is "identical or substantially similar" to marriage.  Judge Moeser granted a motion for summary judgment filed by the Intervenor-Defendants, Fair Wisconsin, Inc., and a group of same-sex couples.  Although the state defendants, former Governor James E. Doyle and two other officials, had originally filed this motion to dismiss, the new, anti-gay governor, Scott Walker, had informed the court that the state was no longer defending the statute, so the intervenors, represented by Lambda Legal, provide the defense and triumphed on the motion.  The court rendered the decision in Appling v. Doyle, No. 10-CV-4434, on June 20, 2011.

The Marriage Amendment, adopted by Wisconsin voters in 2006, provides: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.  A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state." 

Several years after the amendment was adopted, the state legislature passed a law establishing a domestic partnership registry for unmarried partners to signify to their state that they are partners.  Couples pay a fee to register and receive a certificate attesting to their domestic partnership.   Domestic partnership status also brings a list of rights: victim notification by the Department of Corrections, spousal evidentiary privilege, the right to sue for wrongful death, the right to apply for crime victim compensation, the presumption that real property acquired in their relationship is held in joint tenancy, certain rights regarding estate administration, protection against eviction while a partner is serving in the National Guard, visitation rights in care facilities and consent rights regarding institutionalization, rights to access various records, power of attorney rights, right to consent to autopsy and certain insurance subsidy rights, waiver of real estate transfer fees, family and medical leave rights, workers compensation death benefits and other benefit rights comparable to spouses.  The list is extensive but falls far short of the rights accorded to married couples.

Individuals who were active in the campaign to pass the marriage amendment filed suit against Governor Doyle (who had signed the DP Registry bill into law), alleging that it violated the marriage amendment.  By withdrawing his support for the summary judgment motion that was filed on behalf of Gov. Doyle, Gov. Walker indicated his agreement with the plaintiffs.

But Judge Moeser strongly disagreed.  Although he found that the plaintiffs had taxpayer standing to sue, based on the minimal level of state expenditure that might occur in connection with the DP Registry, he found that the legal status created by the DP Registry Act fell so far short of marriage that it could not be found to be prohibited under the amendment. 

An important part of Judge Moeser's analysis concerned a detailed examination of the legislative history of the amendment.  He found that throughout its consideration in the legislature and the resulting campaign, it was clear that the proponents sought to ban same-sex marriages and Vermont-style civil unions, which carried virtually all the state law rights of marriage.  Thus, the phrase "identical or substantially similar" was intended to prevent the state from getting around the marriage ban by setting up a parallel legal institution with the same or almost the same list of rights.  The judge noted specific statements by various proponents that the measure was not intended, for example, to prohibit the state from providing partner benefits to state employees.  

A news release put out by proponents said, "significantly, though, the language does not prohibit the legislature, local governments or private business from extending particular benefits to same sex partners as those legal entities might choose to do."  Based on this legislative history, Judge Moeser found that "the drafting files also show that legislative proponents did not intend for the Marriage Amendment to prevent the state from creating a legal construct to provide benefits to same-sex couples, or for it to prevent the legislature from packaging together a bundle of rights for same-sex couples," so long as the result was not "substantially similar" to marriage.

The judge also found that the legislature did not ignore the Marriage Amendment in 2009 when it was considering the DP Registry bill, even specifically referencing the amendment in the declaration of policy contained in the bill.  The judge found that the legislature "carefully considered the constitutionality of Chapter 770 in light of the Marriage Amendment prior to enacting the domestic partnership registry."  Comparing marriage and domestic partnership in Wisconsin, the judge found that "the vast majority of rights provided to domestic partners are rights that the law also grants to parents, children, family members, and sometimes 'close friends.'  Other rights given to registered domestic partners can be obtained by any two people by executing certain documents." 

Plaintiffs had argued that even if -- as found -- the DP status did not provide most of the legal incidents of marriage, it violated the Amendment becuse "it is calculated to confer the same social status of marriage."  But the court found that accepting this argument would require it to "ignore the evidence of the plain language, constitutional debates, and earliest interpretations by the legislature," instead adopting some sort of "general purpose" interpretation. 

The court rejected this argument on two grounds: "First, as this court has repeatedly stated, the Marriage Amendment prohibits a legal status that is identical or substantially similar to the legal status of married individuals.  As stated above, the legal status of domestic partners is substantially different than that of married spouses."  Second, "assuming, arguendo, the purpose of marriage is to accommodate the potentially procreative nature of heterosexual relationships, then it is undisputed that domestic partnerships do not have the same purpose because there is no potential for a homosexual relationship to be procreative.  Therefore, Plaintiffs' argument about the purpose of marriage supports the conclusion that domestic partnerships are not substantially similar to marriage."

Indeed, the court concluded, "The state does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage."  The judge also found that the package of rights accorded domestic partners "is not even close to similar to a Vermont-style civil union," which is what the Amendment sponsors sought to prevent.  The court found that the DP registry was "simply a legal construct created to provide some benefits to same-sex couples," exactly what the Amendment proponents had stated would be appropriate if the Amendment was enacted. 

It is likely that the Plaintiffs will seek to appeal, perhaps joined by Gov. Walker.  Lambda Legal provided representation to Fair Wisconsin and the individual intervenors.  The text of the decision is available on Lambda Legal's website.

NYC LGBT Center Garden Party & the High Line Northern Extension

Last night I dropped in on the NYC LGBT Community Center Garden Party for about an hour, then explored the new northern extention of the High Line Park.  Propinquity governs.  A stairway to the High Line is conveniently located at 14th Street near Pier 54, where the Garden Party is held.

The Community Center Garden Party started off as a "real" Garden Party early in the history of the Center - a block party that was centered on the "garden" space at the west end of the Center on W. 13th Street.  It was a genuine community event.  Numerous community organizations had tables staffed with volunteers to talk about their organization and distribute flyers and other mementos, groups from the community performed on a makeshift stage, and box meals were distributed, which people consumed in their folding chairs or spread around through the Center.  There was a home-like improvised feeling to the event and it was definitely the place to be that evening in the community. 

As the Center's membership grew larger it became less practical to contain the event on half a block and, as the Center underwent renovation, the event had to be moved.  For several years it occupied a playground a few blocks west, and continued to have the feeling of a community event with a stage, performers, lots of community groups staffing tables, and little by little participation by restaurants distributing snacks.

Then the event outgrew the playground and was moved several years ago to Pier 54.  The community groups gradually disappeared, the stage eventually was abandoned, performers from the community disappeared, and the event morphed into a food-sampling festival.  In other words, it is now a misnomer to call it a Garden Party and it has become a misnomer to call it a community event.  It is a fund-raiser, pure and simple, crowded, with only the most vestigial connection to what it originally was.  It has lapsed into formula and become, unfortunately, a crowded bore.  I think last night's was the last one I will bother to attend.

On the other hand, the real highlight of the evening for me was exploring the new portion of the High Line.  This park has been constructed on the remains of an old elevated railway line that used to accommodate freight trains bringing mainly produce and meat to the warehouses and other storage and processing facilities along the west side of Manhattan from midtown south to the Village.  Railroad use was abandoned in the 1960s and the elevated tracks, abandoned, were largely left to rot.  Some sections in the Village were dismantled as they appeared to became dangerous.  Then a campaign was begun to reclaim the remaining portions as an elevated park.  The first section, starting off in the northern end of the West Village and running up to 20th Street, was opened a few years ago, and this month the next section, running up to 30th Street, was opened. 

The High Line is a startling and wonderful phenomenon.  Urban architects have crafted a dazzling garden above the ground, incorporating remains of the old railroad tracks, adding observation decks, places to sit, water fountains, room for a very limited number of vendors -- not enough to make it seem too commercial -- and the staff has adopted rules sufficient to ensure a clean environment for quiet enjoyment.  It has proved a very attractice facility for tourists and locals alike.  Everybody seems relaxed and laid-back, there is much smiling and bemusement.  It seems to be a particular draw for gay male couples, who can be seen strolling arm-in-arm.  It is great for people-watching.  It is far enough "out of the way" so as not to be totally overrun.  It has sparked some new development in the surrounding area.

The northern extension carries on the fine work that was done on the first section, although it has a slightly different atmosphere because the 20s are more built-up than the teens.  As a result, it is generally more narrow, there are fewer views west to the Hudson River because it is surrounded by more tall buildings.  There are some interesting visual trade-offs.  This section will be a bit quieter, I think, the first section, in some ways more relaxing.

One thing that the City has to do, I think, is to quickly pay attention to the dilapidated condition of the sidewalk on 30th Street west of 10th Avenue.  Now that the northern terminus of the High Line is at 30th Street, there will be much more pedestrian traffic there, and the current condition of the sidewalk is abysmal and dangerous.  Perhaps the Department of Transportation can spare a bit of attention to making the sidewalk an appropriate and safe way to get to the northern end of the High Line.

Jeff Key in "The Eyes of Babylon" at 59E59 Theater

As part of its Americas Off Broadway series, 59E59 Theater is presenting Jeff Key in "The Eyes of Babylon."  I saw yesterday afternoon's performance.  The show is running through July 3.  It is definitely worth seeing.

Jeff Key served in the U.S. Marines in Iraq during the early months of the war.  He is a gay man who enlisted in 2000, determined to comply with the "Don't Ask Don't Tell" policy so he could serve his country.  He kept a journal of his experiences in the Marines.  His posting in Iraq was cut short when he needed hernia surgery and was sent back to the states.  He decided he was done with hiding his sexuality and "came out" to a superior officer in order to get out of the Marines.  Subsequently he gave a broadcast interview to CNN and became one of the famous exemplars of the silliness of the DADT policy.  He became acquainted with Yuval Hadadi, a theater person who is a gay Israeli military veteran.  Hadadi persuaded him of the importance of telling his story dramatically.  Under Hadadi's prodding and guidance, Key elaborated a monologue based on his journals, and that is "The Eyes of Babylon," which has been presented numerous times around the country, won awards and critical commentation, and is receiving its NY premiere in the current production.

Key is a very effective writer, and delivers his lines with sincerity.  He is generally a plain-speaking guy, and one suspects he is sugar-coating some of his experiences, but the show makes a big emotional impact, and it feels good -- and challenging -- to listen to this man tell about his experiences.  He certainly puts to shame those who have persisted in defending DADT or tried -- for example, House Republicans - to erect new legislative roadblocks to implementation of last years DADT Repeal Act.

This 90 minute monologue is fast-paced, thought-provoking, and entertaining.  I hope lots of people will take the time to see it during the balance of its brief New York run.  According to Key's website, there is also a television documentary about his experiences which I suspect will get trotted out pretty much every year for Gay Pride month programming on public television stations, so be on the lock-out.  His story is worth hearing and seeing.