By Village Justice, Tom Liotti
A dozen years ago the Mayor of Poughkeepsie decided to perform same sex marriages. On one occasion he was going to marry 600 couples. Anticipating that the couples would be arrested, I was asked to represent all of them. I agreed but the ceremony never happened.
As a Village Justice capable of performing marriages I wondered whether I had the legal authority to perform same sex marriages and if asked, what would my and my village’s potential liability be if I refused to do so? I wrote a letter to the Attorney General of New York for an opinion on whether the judges of New York were permitted or required to perform same sex marriages. The Attorney General, Elliot Spitzer, at the time, rendered an opinion stating that we were not permitted by law to perform same sex marriages in New York.
This then provoked more discussions and debate statewide until the Legislature adopted same sex marriages in New York. While I have not been asked to perform a same sex marriage ceremony, I had believed that if I refused to do so that could open the door to a lawsuit under the equal protection of the laws and provisions of the United States Constitution.
Now that the Supreme Court of the United States has determined the constitutionality of same sex marriage laws my concerns are moot to a certain extent. In a recent article for the New York Times Sunday Magazine, Emily Bazelon, the granddaughter of a Supreme Court Justice entitled an article: “Better Judgment; What Should It Take For Judges To Change Their Minds?” In it she wrote of the legal doctrine of stare decisis or “to stand by the things decided.” It is the law that courts are slow to change except when the customs of society have changed or when they should as in cases such as Brown vs. The Board of Education where segregation in public schools was dethroned after 60 years of stare decisis under Plessey v. Ferguson and Chief Justice Roger Taney’s infamous decision in Dred Scott v. Sanford. The mores of society have changed. The Supreme Court majority has reflected that change when it rendered its opinion legalizing same sex marriages nationwide.
The decision will not, however, resolve the moral or religious reasons on the part of some judges, not this one, who may still refuse to perform same sex marriage ceremonies for reasons of personal conscience. A change in the law does not necessarily produce a change of the mind.
