New York's Highest Court to Rule on Recognition of Same-Sex Marriages Contracted Outside the State

Written by Arthur S. Leonard Friday, 03 April 2009 07:04

The New York Court of Appeals will finally weigh in on the question of legal recognition by New York of same-sex marriages contracted elsewhere. On March 31, 2009, the court granted leave to appeal in decisions from the Appellate Division, 2^nd and 3^rd Departments, that had rejected challenges backed by the Alliance Defense Fund to the actions of government officials recognizing such marriages. The cases will be argued in the fall.

In Godfrey v. Spano, 871 N.Y.S.2d 296 (2^nd Dept., Dec. 30, 2008), the court affirmed a ruling that Westchester County Executive Andrew J. Spano did not exceed his authority or violate any state laws or policies when he issued an executive order in 2006, directing all the governmental entities under his authority "to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex mariages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law."

In a very brief ruling, the court engaged in a sleight of hand to avoid addressing the merits of the marriage recognition issue by giving a very literal reading to Spano’s order. "The Executive Order at issue here requires that same-sex marriages be recognized ‘to the maximum extent allowed by law,’" wrote the court. "By its terms, therefore, the Executive Order can never require recognition of such a marriage where it would be outside the law to do so. Since it is within the authority of the County Executive ‘to see that the laws of the state, pertaining to the affairs and government of the county ... are executed and enforced within the county,’ the Executive Order is not illegal."

The court recited without comment the plaintiffs’ argument that recognition of same-sex marriages was precluded by the Court of Appeals’ decision in Hernandez v. Robles, 7 N.Y.3d 338 (2006), and the defendants’ counter-argument that marriage recognition was consistent with New York marriage recognition doctrine explained in Matter of May, 305 N.Y. 486 (1953), as construed in Martinez v. County of Monroe, 50 App.Div.3d 189 (4^th Dept. 2008).

It’s difficult to know why the Court of Appeals would think this ruling worthy of further appeal, unless it be to address the merits of the marriage recognition debate rather than to rest on a construction of the Executive Order that makes it a virtual nullity.

On the other hand, the Court of Appeals’ grant of review in Lewis v. New York State Department of Civil Service, 872 N.Y.S.2d 578 (3^rd Dept. 2009), brings the merits issue front and center, because in that case the 3^rd Department followed the lead of the 4^th Department in Martinez and held that the Civil Service Department had properly decided to recognize same-sex marriages lawfully contracted elsewhere in administering employee benefits programs for public employees in the state.

The court majority essentially replicated the 4^th Department’s analysis, but going into more detail in light of the advocacy of the parties. (In Martinez, the suit was between an employee and Monroe County; in Lewis, the plaintiffs were represented by the Alliance Defense Fund .) The court first rejected the argument that the normal marriage recognition rules don’t apply, because the union of a same-sex couple cannot be considered a "marriage" as a definitional matter. The court pointed out that in Hernandez the Court of Appeals "did not hold that same-sex marriages solemnized elsewhere would not be defined as marriages here, and it observed that the Legislature could rationally choose to permit same-sex couples to marry in New York," thus making it appropriate to apply established marriage recognition doctrine to the case.

As to that application of the doctrine, the court observed that the exceptions to the general rule of marriage recognition have traditionally been narrowly construed. There is no affirmative prohibition of same-sex marriages under New York law, and the court rejected the argument that such marriages would be "abhorrent to New York policy" in light of the growing case law recognizing them. The court also rejected separation of powers arguments, as well as the argument that the specific statute authorizing public employee benefits did not on its face authorize benefits for same-sex partners, thus limiting the discretion of the Civil Service Department in administering such benefits. The court also rejected the argument that the Civil Service Department’s action was invalid because the Department did not promulgate a regulation in accordance with the state’s administrative procedure law, finding that the Department could embrace a reasonable interpretation of the word "spouse" as used in the benefits law to cover this situation.

The ruling was 3-2, in the sense that two members, while not differing with the result, filed a separate opinion arguing that there was no need to decide the broader question of recognition, as the case could be decided based on the narrower issue of construing the employee benefits statute.

Alliance Defense Fund has another case going on this issue, challenging Governor David Paterson’s action last spring authorizing a memo by his counsel to state agencies that has been widely construed as directing them to adjust their procedures and rules to recognize same-sex marriages that were contracted out of state. A trial judge rejected that challenge in Golden v. Paterson, 2008 Westlaw 5772257 (Bronx Co., Sept. 2, 2008), and an appeal is pending in the 1^st Department.

So, as of now, three of the four appellate departments have been heard from, two ruling on the merits in favor of recognition, one punting on the substance but rejecting the challenge. In the absence of any split, one wonders why the Court of Appeals granted review, especially as a bill pending in the legislature could make the question moot by amending the Domestic Relations Law to allow same-sex marriages to be contracted in New York. The bill passed the Assembly by a comfortable margin in 2007, and is endorsed by the leadership of both houses and the governor. However, the Democratic margin in the Senate is slight, and some Democrats are not yet publicly on board with the bill, while a few are openly opposed to it, so it is uncertain that it could pass the Senate in the current session. Perhaps the members of the court who voted to grant review in Godfrey and Lewis agree with the substantive rulings below and seek to give them a firmer statewide status. Given the unanimity of the 4^th Department panel, and the lack of active dissent in the 3^rd Department panel (with Republican judges predominating in both upstate departments – Appellate Division justices are elected to the Supreme Court and then designated for the Appellate Division by the governor, so the upstate Appellate Division benches are heavily Republican), and the flurry of trial court decisions since Martinez accepting its precedential ruling, it seems unlikely that a majority of the Court of Appeals would take a contrary view.

And yet a majority of the Court of Appeals consists of judges appointed by former Governor George Pataki, and the court was sharply divided in the 2006 Hernandez case. There have been some changes of membership since then, but the majority of the court continues to consist of Pataki appointees, including the judges who wrote the plurality and concurring opinions in Hernandez. So it is difficult to know how to interpret the court’s action. Only time will tell.

Read the original article at Leonard Link