N.Y. case highlights legal mess surrounding gay marriage

Posted on 15 Mar 2007 at 8:32pm
By Ann Rostow

Judge upholds county executive’s order recognizing out-of-state gay marriages even though practice is illegal in New York



Elliot Spitzer

In a perfect example of the legal complexities now starting to tangle the status of same-sex couples around the country, a judge in Westchester County, New York, has ruled in favor of the county’s chief executive, who ordered the county to recognize legal gay out-of-state marriages.

Last June, Westchester County Executive Andrew J. Spano issued an executive order stating that every public agency of the county: “shall recognize same-sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite-sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples to the maximum extent allowed by law.”

Spano’s order came a month before the state’s high court upheld New York’s ban on same-sex marriage as constitutional, and one month later, a group of conservative taxpayers filed suit, arguing that Spano had broken the law and the state constitution by issuing his order.

After all, if Spano’s directive were to stand, a couple who married in Canada would enjoy all the legal rights of marriage in Westchester County in a seeming contradiction of state policy. But hold your horses. On Monday, March 12, Judge Joan B. Lefkowitz of the Supreme Court of New York, Westchester County, dismissed the case against Spano with an 11-page opinion.

The question, for Lefkowitz, was whether Spano’s order made new law, or whether it implemented existing law. The former is prohibited. The latter is within his powers.

Despite the fact that New York does not allow same-sex couples to marry, the judge wrote, the state has a long history of recognizing marriages from elsewhere that could not be legally contracted within state lines. As long as the out-of-state marriage is not “condemned” by New York public policy, the marriage has historically been respected. Lefkowitz acknowledged a range of conflicting court decisions on marriage and marriage recognition within the state, but the bottom line for her was that the state has not, in fact, condemned gay unions.

Yes, the New York Court of Appeals, the state’s highest court, upheld the status quo. But while the fractured court said the current law was not unconstitutional, they did not preclude the legislature from revising it in the future.

Moreover, former Attorney General (now Governor) Eliot Spitzer issued a non-binding opinion in 2004 agreeing that, while same-sex marriage could not be contracted instate, New York was nonetheless bound to respect such marriages when issued elsewhere.

Given the trend of court precedents in favor of gay rights in general, and given the fluid nature of the current judicial context, where many related cases are under appeal, Lefkowitz ruled that Spano was not out of bounds in interpreting current law in favor of marriage recognition.

So yes, in a strange way, a Canadian same-sex marriage is now legal in Westchester County, although further litigation is no doubt ahead. For that matter, out-of-state unions may have a quasi-legal status in Rhode Island, where like Spitzer in 2004, Attorney General Patrick Lynch recently wrote that his state is legally obliged to honor the legal marriages from beyond state borders.

Lynch’s opinion is not binding. But it is bolstered in a way by two rulings in Massachusetts that authorized Rhode Island couples to take advantage of the Bay State’s equal marriage laws. In general, out-of-state couples in Massachusetts may not marry if they are forbidden to wed in their home state by law or court precedent. Rhode Island is the only state to avoid the non-resident ban.

To make matters even more interesting, the Rhode Island Supreme Court is now considering whether to accept review of a divorce case between two Rhode Island women who married in Massachusetts before the law was settled.

Add to this mix the status of registered partners from Vermont, California, Connecticut and New Jersey, and the stage is set for an unlimited variety of court debates throughout the country, as transient couples try to break up, settle estates, win visitation, pick up pensions or even rent a car without paying for an extra driver. Although the main legal precedents will continue to flow from the big state cases that challenge marriage laws on state constitutional grounds, this secondary litigation will inform courts at all levels as the debate moves on.

And the debate is moving on. The Maryland Supreme Court heard oral arguments in its marriage case late last year, while Connecticut’s top court will be scheduling arguments shortly. Most importantly, the California justices have agreed to hear the coordinated marriage equality cases this year.

This article appeared in the Dallas Voice print edition March 16, 2007

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