N.Y. judge
recognizes Canadian nuptials

A year ago this summer, New York's highest court ruled that the state's law restricting marriage to heterosexual couples was not unconstitutional. That unfortunate decision left open a separate but related legal question: Must New York recognize legal same-sex marriages from outside its borders?

In an opinion issued last week and made public Tuesday, a lower-court judge ruled that the state comptroller's office can indeed recognize the Canadian marriages of gay and lesbian state employees on behalf of the New York Retirement System.

If the ruling is upheld on a statewide basis, gay and lesbian couples' inability to marry in New York will be mitigated by the fact that they can jump over the border, marry in Canada, and win state-based rights.

Last week's four-page decision by Justice Thomas J. McNamara upheld the policy begun by former comptroller Alan J. Hevesi and continued by his successor, Thomas P. DiNapoli.

The question of marriage recognition in New York came to a head in the hectic period after several Canadian provinces and the state of Massachusetts legalized same-sex marriage in 2003.

As rebel marriages broke out in San Francisco, Oregon, and upstate New York the following spring, Attorney General Eliot Spitzer issued a nonbinding opinion stating that while same-sex marriages could not be legally contracted in New York, those legally contracted elsewhere must be recognized under long-standing legal principles.

Hevesi based his open-door policy on Spitzer's opinion.

New York, and many other states for that matter, honor marriages that could not be officiated within state borders.

These include common-law marriages, a marriage between uncle and niece, marriages below New York's age of consent, and marriages that evaded New York's now-defunct three-year waiting period before divorced people could remarry, Lambda Legal said in papers filed with the court.

Unlike the vast majority of states, New York does not have a "defense of marriage" law expressly banning recognition of same-sex marriages from elsewhere. Therefore, people like Spitzer, Hevesi, DiNapoli, and other analysts hold that same-sex couples who hop the border into Canada must be acknowledged as legally wed.

In the current suit, the conservative Alliance Defense Fund challenged the comptroller's policy, arguing that the July 2006 high court ruling upholding the discriminatory state marriage law not only prohibited same-sex couples from marrying in the state but also barred state officials from respecting same-sex marriages forged elsewhere.

Indeed, in an earlier case, a judge agreed with that premise, ruling that New York's public-school health system did not have to extend insurance to the same-sex spouse of a retired teacher. That decision is under appeal.

But as Lambda pointed out, and as Justice McNamara also stressed, the rules of marriage recognition are inherently geared toward marriages that could not be contracted in the state in the first place.

The high court's decision last summer applied only to the status of same-sex couples who wished to marry within state borders, and should have no impact on the status of those wed in Canada, Spain, or Timbuktu.

According to McNamara, the only out-of-state marriages that would not be honored would be those involving incest or polygamy, as well as those explicitly banned by the legislature.

McNamara's decision will likely go up for appeal. Down the road, it would not be surprising to find the question on the docket of the court of appeals, New York's highest court. (Ann Rostow, Gay.com)