the m-word

The NY Couple Who Want Their Marriage Annuled (Because It’s Unconstitutional)


While Sacramento’s John Marcotte’s attempt to put a ban on divorce on the voter ballot next year is an admirable mockery of the right-wing’s opposition to gay marriage in California, one New York couple is seeking a different tactic: Rachel Murch D’Olimpio and Matthew D’Olimpio, both 29 and with an infant son together, want their marriage annulled, because their own union is a violation of the Constitution because gays cannot also get hitched.

It’s always hard to tell just how serious folks are when they pull stunts like these, but Brooklyn’s D’Olimpios are, at the very least, showing how ridiculous it is to deny gay marriage rights, particularly in the wake of this week’s legislative defeat in the state. And they appear to actually be exploring how this could all pan out legally. (Facebook group here.)

So why get an annulment instead of a divorce? Because annulments are reserved for deleting marriages that are, supposedly, never legal (or consummated) in the first place. The D’Olimpios argue that by not extending marriage rights to gays, existing marriage laws violate a constitutional right to equal protection, and is thus invalid. Notes Emma Ruby-Sachs:

Legally, their approach has some promise. Contracts freely entered into can be deemed void if they contravene public policy. There is an argument — one that has been successful in Iowa and California — that giving marriage rights to straight couples and not same-sex couples violates the right to equal protection of the laws. This is not new reasoning.

However, usually the courts require the applying individual to prove that they are, in some way, being denied equal protection of the laws of the state. Rachel and Matthew are fully protected. It’s their friends and fellow New York residents who are being denied their rights.

But striking down a contract for being contrary to public policy provides more flexibility than the strict constitutional analysis courts have previously engaged in on this matter. Courts can assert, in some cases, that acts are contrary to public policy simply because they create any effect on society as a whole that is undesirable. For example, contracts promoting the sale of babies are considered contrary to public policy. While offending the moral character of many, selling infants may not actually cause concrete harm (this is, in fact, an argument put forward by famed legal scholar Justice Richard Posner).

New York’s courts may choose to use the annulment challenge as an opportunity to hear evidence on the social harm marriage discrimination causes for the entire state — gay and straight residents alike. There are plenty of arguments to support this assertion. Inequality breeds social division and resentment. Children of same-sex couples denied marriage rights suffer psychological harm. Residents in same-sex committed relationships arbitrarily bear greater tax burdens. The list goes on.

Is a New York court going to strike down existing marriage laws based on their case? Highly doubtful. But we’re excited to see yet another case make its way through the courts proving marriage is not always about religious beliefs or procreation, but merely a legal contract between two people.

Meanwhile, notes Matt in a statement:

Never before have I been so ashamed of my state or to be a New Yorker. For me, New York is the only place I feel truly comfortable calling home, and one of the many reasons for that is how progressive, diverse and accepting the people of this great state are towards each other and how our state constitution protects so many more of our rights than nearly any other state. While the failure of the bill to pass wasn’t a complete surprise, obviously, or our actions wouldn’t have been necessary to begin with, I was surprised with how many Democrats voted against it. Only 24 voted for it, which in my opinion is a disgrace. Our Senator, Ms. Montgommery voted for it, and gave a kind speech in support of it, along with several moving and eloquent speeches in favor of it. As I listened to these Senators speak, like Senator Liz Krueger, explaining their positions with passion, explaining its connection to civil rights, referring to the vote as part of a movement, really gave me a feeling of hope that this bill may very well pass. Especially considering that the voices against really used nothing more than their tired arguments about the historical or “traditional”
definition of marriage being defended, but without really explaining why it needed defending, and without regard for how drastically society has changed in the last several thousand years.

So now, we have our work cut out for us. We’re currently in contact with several lawyers who have offered, to various degrees, pro-bono assistance with helping us figure out exactly how to file our annulment in court, especially in matters of jurisdiction, and precisely how to word our request to maximize its effectiveness and avoid any quick defeat on a technicality.

Once we have dedicated legal counsel, we’ll proceed as fast as we can to filing our annulment and will be asking the members of our group, which has nearly doubled since 9am today, to join us at the court when and where we file.

It’s always the time to be on the right side of history. In the meantime I will be posting links to all the Democratic Senators who voted no, followed by the Republicans that includes their contact information, and a brief bio of their record, encouraging our members to write to them about how they feel. I will also be contacting the heads of the Democratic party in their areas, along with the state, explaining to them how our group feels, how fast we’re growing and how we won’t stand for the Democratic party being so disloyal to itself and to the people it claims to represent. All the Republicans were once again able to stand together, while the Democrats split, and split big. We have only just begun our fight. And we won’t stop until all couples, gay or straight, will be able to marry in New York. As far as we’re concerned, our marriage in the eyes of the state died today and won’t revive until same-sex marriage is legalized here.