Midlevel N.Y. appeals court upholds policy giving benefits to gay workers married out of state

Posted on 27 Jan 2009 at 12:11am
By By Michael Virtanen Associated Press

Lawyer for plaintiffs challenging policy says they will appeal ruling

ALBANY, N.Y. — A midlevel appeals court on Jan. 22 upheld New York’s policy granting health benefits to spouses of gay state workers legally married outside the state.

Five Appellate Division justices, in two concurring decisions, rejected claims that the state Department of Civil Service exceeded its statutory authority in granting health insurance benefits to same-sex partners legally married elsewhere.

The justices upheld a 2008 ruling from a lower court in Albany, rejecting a challenge on behalf of four upstate taxpayers brought by attorney Brian Raum, who is also counsel for the Christian-based Alliance Defense Fund.

Justice Robert Rose noted that New York’s top court has ruled state law limits marriages conducted within the state to people of the opposite sex. But New York also recognizes valid marriages from elsewhere, except when strictly prohibited by a state statute or the union is considered "abhorrent to public policy," such as incest, polygamy or when someone was under the age of consent.

"Our courts have narrowly construed these two exceptions, applying the marriage recognition rule to recognize a wide variety of out-of-state marriages that would not qualify as marriages if they had been solemnized in New York," Rose wrote. No New York statute specifically precludes recognition of same-sex marriages from elsewhere, nor does the state’s public policy abhor it, he wrote.

Justices Karen Peters and Anthony Kane agreed.

In a separate concurring decision, Justice John Lahtinen wrote that state workers have been entitled for more than a decade to get health coverage for a same-sex domestic partner. The practical effect of the civil service ruling was to give an out-of-state marriage certificate the same weight as the affidavit required to get such employee benefits.

The policy change initiated in May 2007 under then-Gov. Eliot Spitzer affected spouses of state and municipal workers married in Canada, Massachusetts, California and other places where same-sex ceremonies are legal.

That was "a narrow accommodation to state employees in an area where the legislature has specifically accorded the [Civil Service] Commission broad discretion," Lahtinen wrote. Justice Bernard Malone Jr. agreed.

Raum said they plan to ask New York’s top court to hear the case on appeal. "Until the Court of Appeals does address it, it’s not going to be resolved," he said.

He said Lahtinen and Malone seemed to understand that the broader issue affects New York’s citizens as a whole and it should be decided by the Legislature.

"Action taken by the state pertaining to its own employees is different from changing longstanding law that affects all of the state’s citizens," Lahtinen wrote.

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