Saturday, February 02, 2008

NY Courts Okay Out-of-NY Gay Marriages

Comity keeps coming. In Rochester, New York, a five-judge panel of Appellate Division of the State Supreme Court said same-sex marriages solemnized out of New York are legal marriages in New York.

In legal terms, there is no impediment. The best coverage so far has been in the New York Times.

In an amusing twist, the judges said because there is no law forbidding it, it is allowed. That's a refreshing change from jurists' attitude in decisions in other states. Often, they have taken the old Soviet tack — if it isn't specifically permitted, it is forbidden.

In Martinez v. County of Monroe, a community college employee just wanted to add her wife, Lisa Ann Golden, whom she married in Canada in 2004, to her health insurance. The college's HR director turned her down and Martinez ended up suing in 2006. State Supreme Court Justice Harold Galloway dismissed the suit. His ruling said that New York “currently defines marriage as limited to the union of one man and one woman.”

As another bit of incidental humor, the HR director had that old regressive attitude. The college's contract with the employees union didn't specifically list same-sex marriages, so she denied the benefit. Subsequently, the contract has been upgraded and now does.

The appeals court has a very different view than Galloway. The panel first noted in its ruling that the well-established marriage-recognition rule was the key:
For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the “positive law” of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of “natural law...”
The panel rejected the contention that New York case law makes an exception to foreign (out of New York) marriages for same-sex ones. The ruling yesterday stated, "Thus, we conclude that plaintiff’s marriage to Golden, valid in the Province of Ontario, Canada, is entitled to recognition in New York in the absence of express legislation to the contrary."

This is likely to affect all of New York State. The county attorney for Rochester, Daniel DeLaus Jr., will have to decide whether to appeal. New York City Mayor Michael Bloomberg will examine it for ramifications there. State Attorney General hasn't commented. He is in an awkward position as the normal defender of appeals by state agencies, while he personally has favored marriage comity.

The New York Civil Liberties Union represented Martinez. Executive Director Donna Lieberman said, “Congratulations to all same-sex couples validly married outside of New York State: You are now husband and husband, and wife and wife. Now we need to work toward a New York where you don’t have to cross state or country lines to get married.”

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