|By JOANNA L. GROSSMAN|
|Tuesday, November 24, 2009|
In a recent ruling, the New York Court of Appeals – the state's highest court -- upheld policies granting spousal benefits to some public employees who have legally married a person of the same sex in another state or country. But the Court's ruling was very narrow, and it did not rule on whether out-of-state same-sex marriages will be recognized in New York for all purposes. It implored the legislature to take up the broader question of marriage recognition, as it had earlier with the question of authorizing same-sex marriages in New York.
I will argue in this column that, in general, the question of marriage recognition is a matter for the courts, and that, in particular, New York law clearly supports the full recognition of same-sex marriages that were validly celebrated elsewhere.
The Case: Lewis v. New York State Department of Civil Service
The recent ruling involved two separate cases raising similar claims: Both challenge the legality of governmental directives that require New York officials to recognize the same-sex spouses of public employees for purposes of health insurance coverage and for certain other benefits.
One of the challenged policies, issued by the County Executive of the County of Westchester, orders every governmental office in the county "to 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." The other policy, issued by the Commissioner of the New York State Department of Civil Service, is similar.
The plaintiffs in these cases(a group of Westchester taxpayers in one case, and a group of New York State taxpayers represented by the Alliance Defense Fund, in the other) claimed that the governmental directives are illegal because, they say, they are inconsistent with New York state law. Two same-sex couples who are legally married in another jurisdiction were permitted to intervene in the case to defend the directives.
The question in both cases is whether these directives are invalid – a question that should turn on whether New York law supports the recognition of same-sex marriages that were validly celebrated elsewhere.
New York's Place in the Same-Sex Marriage Landscape
Although New York's Governor has been working to push a pro-same-sex-marriage bill through the legislature, same-sex marriages cannot currently be celebrated in New York. The state Assembly has passed a bill to legalize same-sex marriage, but the state Senate has not yet taken a vote on the matter. Gay marriages can, however, be celebrated in several other states and foreign jurisdictions. To be specific, Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire now permit same-sex couples to marry on the same terms as opposite-sex couples can. (California briefly allowed, and Maine almost allowed same-sex marriage; same-sex marriage was ultimately banned in both states by voter referendum.) Seven foreign countries also grant full marriage rights: The Netherlands, Belgium, Canada, Spain, South Africa, Norway, and Sweden.
Yet despite these positive developments, anti-same-sex marriage laws and constitutional provisions exist in nearly every other American state. Forty states have either a law or a constitutional amendment explicitly restricting marriage in that state to one man and one woman, and almost all of those states also deny recognition to same-sex marriages from other jurisdictions.
New York is an outlier in this landscape. It doesn't currently permit same-sex marriage, but neither does it expressly ban its governmental agencies or courts from recognizing gay unions celebrated elsewhere. The New York Domestic Relations code does not expressly define marriage to exclude same-sex couples, but the state's highest court -- the New York Court of Appeals -- ruled in 2006 in Hernandez v. Robles that the New York marriage laws implicitly forbid same-sex marriage.
In that decision, the court also rejected a constitutional challenge to such a ban, holding that the ban did not violate either the due process or equal protection clauses of the New York constitution. There is, the court wrote, no fundamental right to marry a person of the same-sex, nor any robust constitutional protection against sexual-orientation discrimination. (The decision, including a vigorous dissent by then-Chief Judge Judith Kaye, is explored in greater detail in a previous column.) The majority implored the Legislature to take up the issue, that it "will listen and decide as wisely as it can; and that those unhappy with the result—as many undoubtedly will be—will respect it as people in a democratic state should respect choices democratically made."
Marriage Celebration versus Marriage Recognition
Importantly, the question whether a marriage can be legally celebrated in a jurisdiction is entirely distinct from the question whether the marriage should be given legal effect in the state. States have always disagreed about the rules of marriage – which cover, among other things, who can marry, and under what circumstances. Amid these disagreements, states developed a set of principles to guide the interstate conflicts that inevitably arose when a couple legally married in one state, but then moved to, or simply traveled through, another.
These rules of interstate marriage-recognition revolved around the common law principle of comity: respect for the actions of sister states. Comity dictates that states should at least sometimes give effect to marriages celebrated in other states, even if they themselves would not have allowed the marriages to be celebrated in-state. (The basic rules of recognition are discussed below.)
In the case of same-sex marriage, however, the voters or legislatures of most states have taken marriage-recognition questions out of the hands of courts. Nearly all of the anti-same-sex-marriage amendments and statutes that are mentioned above explicitly provide that same-sex marriages that were validly celebrated elsewhere still cannot be given effect in-state for any purpose.
The Gap in New York Law Regarding Recognition of Same-Sex Marriages
New York, however, is one of a tiny handful of states without any law regarding the recognition of same-sex marriage. It has always followed the traditional rules, but with a particularly tolerant approach to interstate marriage-recognition.
The state's highest court has given effect to common-law marriages (marriage without any marriage license or ceremony, created by the couple's holding themselves out as married), as well as to a marriage between an uncle and a half-niece, an underage marriage, and a "proxy marriage" (where only one party shows up to the ceremony), even though New York law expressly prohibits the celebration of all these marriages. In other words, New York will not perform these unusual marriages, but will honor them if validly celebrated elsewhere.
The cornerstone of marriage-recognition law is the "place of celebration" rule, which means that a marriage is valid everywhere if it was valid where celebrated. The rule is subject to exceptions for "natural law" (an exception reserved for marriages that are abhorrent to the state's public policy) and "positive law" (an exception reserved for marriages declared "void" by statute regardless of the place of celebration).
Given the basic rules of recognition, and New York's particularly tolerant approach to such questions, the New York Court of Appeals could easily have ruled that the government directives under challenge were legal. The argument would be that New York law's tolerant approach clearly supports granting full recognition to valid same-sex marriages from other jurisdictions, just as full recognition has been granted by New York to other types of controversial marriages from other jurisdictions. The Hernandez court ruled that current law does not permit same-sex marriages and that the New York constitution does not compel them. However, those rulings do not imply that same-sex marriages are somehow inconsistent with the public policy of the State of New York.
In New York, as discussed above, there is no positive law banning same-sex marriage. More importantly, New York is one of the very few states without a statutory or constitutional ban on the celebration or recognition of same-sex marriages. In addition, the state's Attorney General has issued an opinion stating that same-sex marriages should be recognized when celebrated elsewhere under New York law (but not celebrated in New York), and the Governor has ordered all state agencies to give effect to such marriages. And lower courts in New York have held that the full recognition of same-sex marriages validly celebrated elsewhere is appropriate under New York law.
The Majority's Ruling in Lewis
A majority of the seven-member panel in Lewis, the benefits case before the New York Court of Appeals, declined to reach the question whether same-sex marriages validly celebrated elsewhere can be recognized in New York. The judges in the majority based their ruling, instead, on more technical grounds.
The plaintiffs in the case challenging the Westchester County directive had filed a "taxpayer suit," alleging that the executive order resulted in the illegal dissipation of government funds to pay for employment benefits for same-sex spouses. Although a taxpayer can sue when "acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes," the court ruled that these taxpayer-plaintiffs had failed to specify any circumstance in which money was spent that would not have been spent in the absence of the order. The lack of specificity was "fatal" to their claim.
In turn, the challenge against the state civil-service order claimed that the benefits order was inconsistent with the state legislature's pronouncements on spousal benefits. The Court of Appeals, however, rejected this claim, noting that the Civil Service Commission was "deliberately given broad discretion to define who will qualify for coverage," including the definition of "spouse" and "children".
These two rulings were sufficient to end the case, but three of the seven judges joined a concurring opinion urging a broader approach – one that would avoid "an unworkable pattern of conflicting executive and administrative directives promulgated pursuant to the individual discretion of each agency head."
In the concurrence, written by Judge Ciparick, the three judges bypassed the more technical arguments the majority had invoked, and argued that the directives were valid simply because same-sex marriages that are validly celebrated elsewhere "are entitled to full legal recognition in New York under our State's longstanding marriage recognition rule." Their concurring opinion draws on the long-established principles of marriage recognition, discussed above -- noting, especially, New York's history of tolerance towards disfavored types of marriage. It also draws upon New York's failure to adopt any express anti-same-sex-marriage law that might, if adopted, have indicated a strong public policy against such unions.
To the contrary, the concurrence wrote that the patchwork of New York laws and judicial decisions tolerating disfavored marriages generally, and supporting same-sex relationships specifically, demonstrates that in New York, there is "a public policy of acceptance that is simply not compatible with plaintiffs' argument that the recognition in our State of same-sex marriages validly performed elsewhere is contrary to New York public policy."
In the end, while the New York Court of Appeals was right to uphold the directives challenged in Lewis, the majority did the law a disservice by failing to adopt a full rule of recognition and resting its rulings on technicalities that were particular to the two suits before it, and unlikely to recur. New York law clearly dictates that the state's policy is full recognition of same-sex marriages validly celebrated elsewhere. That principle should (and could) have been upheld by the state's highest court – which reached the right result for a disappointingly narrow reason. While the question of whether to authorize same-sex marriages may properly have been punted to the legislature, the question of whether to recognize them belongs with the courts.
Joanna Grossman is a professor and the John DeWitt Gregory Research Scholar at Hofstra Law School in Hempstead, New York. She has also taught at Vanderbilt, UNC-Chapel Hill, Cardozo, and Tulane. She is an expert in sex discrimination and has written extensively about workplace equality, with a focus on issues such as sexual harassment and pregnancy discrimination. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), an interdisciplinary collection that explores the gaps between formal commitments to gender equality and the reality of women's lives. Her research also focuses on family law, with particular emphasis on same-sex marriage and the history of divorce. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.