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
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
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.
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.
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.
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.
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.
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)