Arent Fox is Advocating Equality
In May 2012, Hunter Carter, a litigation partner at Arent Fox LLP, together with Ciro Colombara, leading Chilean human rights lawyer, filed a petition before the Inter-American Commission of Human Rights alleging that the Chilean Constitutional Tribunal and Supreme Court committed human rights violations under the American Convention on Human Rights when they ruled that same sex couples are not entitled to civil matrimony, even couples who are legally married in Canada and Argentina.
MOVILH’s petition shows that marriage exclusion violates the American Convention on Human Rights, which guarantees equal protection of the laws, the right to found a family and the right to be free from religious discrimination. The petition seeks a ruling of the Inter-American Court of Human Rights that would require Chile to allow same-sex couples to get and be married. This would set a hemispheric, if not worldwide, precedent for marriage equality.
According to Hunter, “MOVILH’s petition takes apart the arguments against marriage equality, arguments that rely on demonstrably false and damaging stereotypes, or rely on religious arguments when marriage is a legal license conferred by the state. Marriage exclusion is marginalization: it serves to denigrate, castigate or express disapproval of LGBTI people. It is effective at doing so, contributing to the kind of atmosphere that got a young Chilean gay man brutally murdered recently. Our client, MOVILH, has been fighting a tough struggle for the rights of LGBTI persons in Chile. The Americas, however, are in the vanguard of marriage equality. Almost half of the people in the Americas now live in a country or state where same-sex marriage is legal, or where same-sex marriages from elsewhere are legally recognized. Several additional jurisdictions have taken the half-measure of allowing or recognizing 'civil unions' of same-sex couples, which only have some of the rights and duties – and none of the status – conferred by legal marriage. By standing with MOVILH, we can help demonstrate, on a hemispheric basis, that excluding same-sex couples from marriage is irrational and harmful.”
Hunter, who is bilingual in Spanish and Chairs the Inter-American Affairs Committee of the New York City Bar, is passionate about marriage equality. Hunter was selected to lead the case in the Inter-American Commission on Human Rights due to his success in helping convince the New York State Bar Association (NYSBA) House of Delegates and, eventually, the New York State Legislature, to endorse the granting of full equal marriage rights to same-sex couples in that state.
The story of that historic accomplishment begins on a December night in 2009 in Albany, New York.
On Wednesday, December 2, 2009, proponents of extending civil marriage rights to same-sex couples in New York were stunned when the New York State Senate, by a 38-to-24 vote, decisively rejected a bill that would have allowed gay couples to wed.
The defeat in the state Senate meant that the issue of marriage equality was dead in New York until at least 2011, when a new Legislature would be installed.
While startled and disappointed by the vote, advocates of equal marriage rights for same-sex couples vowed to bring the issue back to the New York Senate floor again. And the next time, they declared, they would be victorious.
Two years later, late on a Friday evening in Albany, the New York Senate was again debating legislation that would extend to same-sex couples civil marriage rights equal to those enjoyed by their opposite-sex counterparts.
Advocates and opponents of the legislation had spent countless hours and millions of dollars in an emotional, often heated, campaign designed to convince lawmakers to support their respective positions.
Accordingly, the fate of the marriage bill was uncertain until just moments before the vote began.
Then Republican Senator Stephen Saland, who represents the Lower Hudson Valley and who voted against the same-sex marriage bill in 2009, announced that he would now support legislation granting equal marriage rights to same-sex couples in the state of New York.
“My vote is a vote of conscience,” Sen. Saland announced on the Senate floor. “I have contemplated many difficult votes throughout my career and this is by far one of the most, if not the most, difficult. Struggling with my traditionalist view of marriage and my deep rooted values to treat all people with respect and as equals, I believe after much deliberation, I am doing the right thing in voting to support marriage equality.”
The New York Senate then went on to approve the bill, 33 to 29. Governor Andrew Cuomo immediately signed the legislation into law, making New York the largest state in the nation where gay and lesbian couples would be able to wed.
A month later, Gov. Cuomo held a reception in New York City to celebrate the law officially going into effect and thanking those who supported passage of the marriage equality legislation.
Sen. Saland was in attendance. So was Hunter Carter. Hunter was there because he was the co-author of a 171-page report unanimously adopted by the New York State Bar Association (NYSBA) House of Delegates endorsing the granting of full equal marriage rights to same-sex couples in New York.
Sen. Saland congratulated and thanked Hunter and his colleagues, because as Sen. Saland struggled to decide his vote, he wanted to tune out the partisan advocates on both sides and study how the state of the law affected real people. Accordingly, he studied the New York State Bar’s report, which detailed the inherently unequal and unfair treatment of same-sex spouses and their children in New York courts, and concluded only marriage equality would fix the problem.
Hunter, who normally acts as a commercial and corporate litigator in a wide range of complex cases, had achieved a new kind of victory, serving as a zealous advocate outside the courtroom and in the Legislature.
The report to which Sen. Saland referred, and which had proved so influential, was the New York State Bar Association’s “Report and Recommendation on Marriage Rights for Same-Sex Couples.”
The report was prepared by the NYSBA’s Special Committee on LGBT People and the Law, which was created by Arent Fox partner Bernice Leber shortly after she took office as president of the New York State Bar Association—the nation’s largest voluntary bar association, with more than 75,000 members—in June 2008.
One of Bernice’s first acts as president was to appoint the Special Committee and task it with educating members of the bar about the legal hurdles faced by same-sex couples in New York State. As part of its mandate, the committee was asked to review the New York State Bar Association’s stated position on equal marriage rights for same-sex couples and, if necessary, recommend changes to the Bar Association’s policy.
Three years earlier, in 2005, the New York State Bar Association had adopted a resolution stating there was a need for “systemic reform of New York state law to ensure that same-sex couples were provided with rights equal to those enjoyed by their opposite-sex counterparts.” That reform, the Association concluded, could come in the form of marriage, civil union, or domestic partnership. In embracing civil unions and domestic partnerships, the House of Delegates of the NYSBA rejected a proposal that the Association should support a “marriage only” position for same-sex couples.
To help lead the new Special Committee on LGBT People and the Law, Bernice selected her Arent Fox colleague and fellow litigator Hunter Carter to serve on the committee. The selection of Hunter to serve on the Committee came as no surprise to those who have sought justice for the LGBT community. In addition to his reputation as a top-notch corporate and commercial litigator, Hunter was well known as a passionate advocate for equality and social justice. He had served as general counsel of the Walkman-Whitman Clinic, a community health center in Washington, DC, with a special focus on serving individuals living with HIV/AIDS. Hunter, along with Arent Fox partner Jon Bouker, also represented the Communities Advocating Emergency AIDS Relief (CAER) Coalition in the successful effort to have President Obama and Congress enact the Ryan White HIV/AIDS Treatment Extension Act of 2009.
Hunter’s first act as a committee member was to volunteer to lead an effort to fight for Bar endorsement of full marriage equality, an essential step in securing the Legislature’s approval.
In compiling its report, Hunter and the Special Committee determined that New York State was “lagging behind other states and foreign jurisdictions” in giving legal recognition to same-sex couples and their families. The Special Committee began to review the legal developments regarding same-sex marriage that had unfolded throughout the United States in the years since the NYSBA had adopted the 2005 resolution in support of civil unions and domestic partnerships as well as marriage.
After almost a year of painstaking analysis and research on the legal issues surrounding same-sex marriage rights, including judicial and legislative developments, in May 2009, the Special Committee released its findings in an exhaustive study titled “Report and Recommendation on Marriage Rights for Same-Sex Couples.”
The book-length report—with more than 700 footnotes—was written by Hunter and Professor Elizabeth Cooper of Fordham Law School. It was the most comprehensive overview and legal analysis of the law of civil unions, domestic partnerships, and same-sex marriage ever prepared by any bar association.
The Special Committee reported that while an increasing number of states—Vermont, Iowa, Connecticut, and Massachusetts—had legalized same-sex marriage, civil union law had not kept place.
Indeed, the NYSBA Special Committee found civil unions often produced for same-sex couples “tangible harms” in medical settings (such as hospitals barring a domestic partner from visiting, or making medical decisions on behalf of another partner), in the workplace, and elsewhere, and “intangible harms” in suffering indignities and stigma not associated with marriage.
The Committee further found that New Yorkers who had entered into civil unions and domestic partnerships outside of New York often returned home to find “a tangle of inconsistent rulings often falling far short of the legal stability and equality with marriage they had sought.” In many decisions, despite language in civil union statutes providing that such unions were the same as marriage, New York courts ruled that civil unions and domestic partnerships don’t make “spouses” for New York legal purposes.
Upon reviewing all of the relevant studies, the legal decision, statutes, and the regulatory decision, Hunter and the Special Committee wrote, “We could reach only one conclusion: extending equal marriage rights to same-sex couples is the only legally and pragmatically viable way to vest same-sex couples with the full panoply of rights and responsibilities enjoyed by married opposite-sex couples.”
“Although many thought that civil unions might promise a way to provide equal rights to same-sex couples without having to use the traditional term of ‘marriage,’ experience has shown this to be a false promise,” the Committee wrote. “The separate nomenclature, it turns out, creates separate and unequal rights and undercuts any attempts to create equal dignity for same-sex and opposite-sex couples. One cannot be left unmoved by the stories of confusion, inconsistency, and unfairness experienced by couples in civil unions.”
Some New York state and local agencies, and lower courts, were beginning to recognize the legality of same-sex marriages contracted in other states, but did not permit same-sex couples to marry in New York. Hunter and the Committee reported “an inherent inequality is resulting: same-sex couples can live as married partners in New York, but they cannot enter into a valid marriage in their home state.”
“As a result,” wrote Hunter and Prof. Cooper, it was becoming the case that “New Yorkers can be married in New York; they just can’t get married in New York.”
Hunter and the Special Committee also recognized the religious sensitivities surrounding the issue of equal marriage rights for same-sex couples. Accordingly, the Committee specified it was concerned “only with marriage as a civil legal institution regulated by government and valid only with a state-conferred marriage license.”
“This does not mean that members of the clergy who object to them would be forced to solemnize marriages of same-sex couples,” the Committee continued. “Freedom of religion is an essential American institution, reflected in both the 'establishment' and 'free exercise clauses' of our Constitution, which ensures separation of church and state.” In recognition of both of these principles, the Special Committee recommended that any legislation in New York establishing the right of same-sex couples to marry would also provide a religious exemption providing that “no clergyman shall be required to solemnize any marriage when acting in his or her [religious] capacity.”
Hunter and Prof. Cooper wrote that such an exception struck “the appropriate balance that recognizes the essential nature of marriage equality and protects religious liberty.”
In conclusion, Hunter and the Special Committee on LGBT People and the Law recommended the New York State Bar Association modify its then-current position to endorse marriage rights for same-sex couples and reject civil unions or domestic partnerships as viable alternatives. “Only this position will adequately remedy the exclusion of tens of thousands of this state’s citizens from the rights, responsibilities, and dignity that attend the right to marry,” the Committee concluded. “The Association should continue to advocate for full equality of legal marriage rights, but abandon its support for civil unions or domestic partnerships, as full equal marriage rights cannot be conveyed by a status different from and inferior to legal marriage.”
The Special Committee Report was released on May 4, 2009. Less than two months later, on June 20, 2009, the full House of Delegates of the New York State Bar Association overwhelmingly adopted the Special Committee’s recommendations and adopted a resolution endorsing legislation to amend the New York Domestic Relations Law “to allow same-sex couples to marry and to recognize marriages if contracted elsewhere as the Association believes only marriage can grant full equality to same-sex couples and their families.” The NYSBA House of Delegates also adopted the Special Committee’s recommendation that 1) clergy should be exempt from the obligation to perform any marriage to which they object and 2) that the Bar Association’s 2005 resolution supporting civil unions as an alternative to same-sex marriage be rescinded.
Over the next two years, the NYSBA Report that Hunter had co-written was circulated to every member of the New York State Assembly and State Senate. The report was provided to the Office of the Governor, the state attorney general’s Offices, and other state officials.
In August 2010, the American Bar Association’s House of Delegates passed, overwhelmingly, a resolution that calls on the nation to provide full marriage equality to same-sex couples. The resolution was based largely on the report Hunter and the Special Committee had prepared for the New York Association months earlier.
Then, on the night of June 24, 2011, in Albany, the New York State Senate cast its historic vote to legalize same-sex marriage in the state. Cheers erupted and tears of joy flowed in the gallery overlooking the Senate floor. More than 150 miles south, in New York City, Hunter and his husband César Zapata were among the thousands of supporters of the same-sex marriage equality bill who filled the streets to celebrate. At 11:55 p.m., Gov. Cuomo signed the bill, which would go into effect in 30 days, meaning that same-sex couples would be permitted to legally marry starting in late July.
It was in July that Sen. Saland met Hunter at the Governor’s reception and told him how persuasive and influential the NYSBA report had been.
“Frankly, I was speechless, and for a litigator, that’s saying something. Here was Sen. Saland, a man of courage, who cast a vote of conscience, who was living up to our ideal of a legislator by studying the facts and considering the impact of the law on real people, especially kids. And he said our report was essential in teaching him the right thing to do. As an advocate, you have to know which arguments to pick and how to support them, and the fact is our report made the case for marriage equality. Though widely shared, this was a deeply personal victory for me, because I wanted to have equality here in New York for our marriage.”
Today, Hunter has carried on the struggle for equal marriage rights to South America and the Inter-American Commission of Human Rights in the hopes of achieving the same kind of civil rights victory for same-sex couples in Chile and beyond.