Does the New York Code Ban Same-Sex Marriage In the First Place?
To begin, the plaintiffs argued that New Yorks domestic relations code does not ban same-sex marriage in the first place, for the core definition of marriage, contained in DRL 10, makes no reference to the sex of the parties. (Several other times, however, the states domestic relations law does refer to husband or wife, or to a woman and her husband.) The Manhattan court rejected the argument that the legislature intended to allow same-sex marriage simply because it did not forbid it. That ruling was not surprising: In May 2004, the states well-known Attorney General, Eliot Spitzer, had issued an opinion to the same effect, and the two prior county courts had also reached the same conclusion. The touchstone of a courts process of statutory interpretation is legislative intent, and it is hard to argue that any state legislature operating decades, or even centuries, ago intended to implicitly authorize same-sex marriage. After all, gay rights activists did not raise same-sex marriage as
