A couple in Brooklyn is looking to challenge the legitimacy of straight marriages in light of the recent New York Senate vote against gay marriage rights. Their strategy: apply for an annulment.
An annulment is usually reserved for marriages where there is no consummation of the marriage (yep, that means sex), insanity, fraud or one or both members of the couple entered into marriage while under duress. Unlike a divorce, it claims that the marriage was never viable and legal or that the situation has changed so significantly through no fault of either member of the couple that the marriage must be dissolved.
But this week I was invited to join a Facebook group run by Rachel Murch D'Olimpio and Matthew D'Olimpio: New York residents who are going to apply for an annulment on the grounds that their marriage contract violates constitutional equality guarantees and is thus void. The group already has over 700 members.
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.
All to say, Rachel and Matthew have a slim chance of success. But whether or not they win in the end, their campaign to stand in solidarity with LGBT New Yorkers certainly warms the heart. And today people in New York State need a little heart warming.