BY LAURA D. FRANCIS
Staff Writer, Government Employee Relations - a BNA Publication
December 1, 2009
Florida Rep. Kelly Skidmore (D) Nov. 20 filed a bill (HB 391) that would prohibit discrimination on the basis of sexual orientation and gender identity or expression in employment, housing, and public accommodations.
The bill, known as the Competitive Workforce Act, defines ‘‘sexual orientation’’ as ‘‘an individual’s actual or perceived heterosexuality, homosexuality, or isexuality,’’ and defines ‘‘gender identity or expression’’ as ‘‘a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.’’
It applies to all employers of 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
‘‘I am proud to be the sponsor of this very important legislation,’’ Skidmore said. ‘‘I look forward to working with OUT, Save Dade, the Palm Beach County Hu,man Rights Council and other organizations and individuals in Florida who believe that discrimination is wrong and ought to be illegal,’’ she added.
Bill Introduced Previously.
Skidmore has introduced previous incarnations of the measure, including one during a special legislative session in October 2007. That bill included sexual orientation but not gender identity discrimination, which was added last year, according to Rand Hoch, president of the Palm Beach County Human Rights Council.
The bill was praised Nov. 20 in a statement by the OUT Advocacy Network, part of Organizations United Together (OUT), ‘‘a federation of local lesbian, gay, bisexual,
transgender and allied organizations dedicatedto achieving equality and justice for lesbian, gay, bisexual and transgender Floridians.’’ PBCHRC is a member of OUT.
‘‘OUT strongly supports passage of antidiscrimination legislation, and we will work with local advocacy organizations throughout the state to build support for the law at the local level, district by district,’’ Executive Director Ted Howard said in the statement.
‘Interesting Strategy.’
Hoch told BNA Nov. 24 that ‘‘it’s an interesting strategy we have this year’’ for securing passage of lesbian, gay, bisexual, and transgender anti-discrimination legislation. He noted that historically LGBT activities only have been able to secure
the support of Democrats, which represent the minority in the Florida Legislature.
However, he said, a ‘‘comprehensive bill’’ currently is in the works that would, in addition to prohibiting sexual orientation and gender identity discrimination,
redefine ‘‘public accommodation’’ in line with federal law—which currently cover more establishments than state law—so that businesses can defend actions before
state administrative agencies rather than in federal court.
That bill also would amend the language of Florida’s fair housing statute to match that of the federal Fair Housing Act, allowing the state to retain $2 million in
federal funding that could be withdrawn without such a change, Hoch said.
‘‘We understand that discrimination is a problem and needs a solution,’’ but that defending against charges should be ‘‘easier and more affordable,’’ he added, noting
that he believes these provisions will garner the additional support of both the business community and the disability community.
Howard added that the anti-discrimination bill last year ‘‘has a record number of sponsors,’’ and ‘‘we hope to increase the number of sponsors this year.’’
Hoch said that the legislative session runs between March and May, giving his and other organizations time to educate legislators and the public about why a statutory
change is necessary. ‘‘It is not illegal in most parts of Florida to discriminate based on sexual orientation, and a lot of people do not know that," he said.
Whether or not HB 391 moves forward ‘‘really depends on what else is going on in the legislature,’’ Hoch told BNA. Because of the short legislative session, other
measures may be given priority, such as last year, when state budget problems took center stage, he said.
‘‘This year, we have reason to hope for improved chance for progress on the bill,’’ Howard added.
Tuesday, December 1, 2009
Monday, November 30, 2009
On the Suicide of Mike Penner -- Why the Transgendered Need Civil Rights Protections
By NORM KENT
The suicide this past weekend of Los Angeles Times sportswriter Mike Penner, who for the last few years wrote under the byline of Christine Daniels, leaves me today with a desire to rant and rave over an insane anomaly in American human rights protections.
Title VII of the Civil Rights Act of 1964 protects all individuals against employment discrimination on the basis of sex as well as age, race, color, national origin, and religion. Many states go further and offer protection against discrimination because of physical or emotional disabilities, marital status, and even pregnancy discrimination.
More and more communities we know have added sexual orientation to the fold, but it seems the new Scarlett letter tearing apart American communities is a debate over whether to protect “gender identity” under civil rights statutes.
Why would anyone fight this? Discrimination is morally wrong and ought to be demonstratively illegal in any form. The very purpose of passing laws against discrimination is to prevent wrongful acts which deny equal opportunities to individuals similarly situated. If we are all presumptively equal under the law, it is correspondingly presumptively illegal if we are treated differently for no rhyme or reason.
Last year, for example, in the city of Largo, a small West Coast community in Florida, its City Manager, Steve Stanton, announced he was going for a sex change operation. The City Commission promptly held a standing room only meeting and fired him. Why? For 15 years, when he did his job as Steven he was fine. But when he chose to come into work as Susan his job was gone; her career in shambles.
What sense does this make? The role Mr. Stanton filled was managing numbers for a city budget. That task requires accounting skills, not a jockstrap or bra. His brain was not operated upon, but the community’s conscience was shocked, and it sent a ripple of disbelief through our national psyche.
Last month, President Obama selected Jenny Durkan, a Lesbian, to be the U.S. Attorney for Seattle, Washington. She was appointed because of the talents she brought to the table as a prosecutor, not her skill set in bed with her partner. What business is it of ours whether the City Manager of Largo performs the duties of the job as Steven or Susan as long as the tasks are filled with impeccable integrity?
If you were a sports fan in Los Angeles, you would have known Mike Penner as a first-rate journalist who had covered a variety of assignments including the Olympics, the Angels, tennis, and the sports media. But he made stunning news in 2007 when he announced he was a transsexual and would be writing his new columns under the name of Christine Daniels. And this affects us how?
If it is wrong to discriminate against an individual, that discrimination is inappropriate whether the person you are interacting with is male or female, straight or gay, black or white. Or Transsexual, metrosexual, bisexual, homosexual, or asexual. As long as they are not telling you to drop your pants, get over it.
Even the gay and lesbian community has moved too slowly in accepting the rights of transgendered persons. Within the gay rights movement, there was for too long silent resistance that we were pushing the envelope too far. Timid activists suggested we were ‘rocking the boat.’ Hell, why not? It needed new pilots.
Thus, as activists so too did we ultimately push the envelope on gay marriage, domestic partnerships, civil unions, equal rights in employment, and spousal benefits. If you are an activist anywhere, you have to learn to push the envelope somewhere. If you do not, someone will lick the seal and glue you in it. A civil right, like a sealed envelope, sometimes only comes about when you rip and tear that envelope. And it is not always a pretty and smooth cut.
Ultimately, then, transgender protections should not even be seen as a gay rights issue. We are simply supporting fundamental human rights protections. And while it is encouraging that such ordinances are being adopted in various communities, from Salt Lake City to Kalamazoo, we should no more have votes on inalienable human rights than we should have had majority opinions to determine whether southern states in the 1960’s should have had separate water fountains which read ‘Whites Only.’ It was simply a wrong which Time and decades needed to right. So too is it with those transsexuals who must endure wrongful ostracism today.
Legislators, not voters, need to codify equal rights protections, and they do not need popular approval to do so. What is popular is not always right, and what is right is not always popular. The same way a legislator would vote to strike down a law stating only Caucasians can sit on the front of a bus so too must they strike down a policy that allows a government agency to fire an employee because they do not approve of a transsexual. That person’s status is beyond the scope of their approval.
I do not know what killed Mike Penner this past weekend. If we learn it was a tortured conscience because of confusion over his identity, then our society lost a life uselessly. I do know when he ‘came out’ three years ago, as a married man with a wife and child, he called writing the story about his sexuality the “most frightening of all the towering mountains of fear” he ever had to conquer. He wrote: “I am a transsexual sportswriter…and it has taken more than 40 years, a million tears and hundreds of hours of soul-wrenching therapy for me to work up the courage to type those words."
If we can begin normalizing our laws today so as to promote social acceptance tomorrow, we can make a difference for those so impacted. We may even be saving a life.
Norm Kent is a Fort Lauderdale based criminal defense lawyer who is a member of the board of directors of NORML. He publishes the www.browardlawblog.com and can be reached at norm@normkent.com
The suicide this past weekend of Los Angeles Times sportswriter Mike Penner, who for the last few years wrote under the byline of Christine Daniels, leaves me today with a desire to rant and rave over an insane anomaly in American human rights protections.
Title VII of the Civil Rights Act of 1964 protects all individuals against employment discrimination on the basis of sex as well as age, race, color, national origin, and religion. Many states go further and offer protection against discrimination because of physical or emotional disabilities, marital status, and even pregnancy discrimination.
More and more communities we know have added sexual orientation to the fold, but it seems the new Scarlett letter tearing apart American communities is a debate over whether to protect “gender identity” under civil rights statutes.
Why would anyone fight this? Discrimination is morally wrong and ought to be demonstratively illegal in any form. The very purpose of passing laws against discrimination is to prevent wrongful acts which deny equal opportunities to individuals similarly situated. If we are all presumptively equal under the law, it is correspondingly presumptively illegal if we are treated differently for no rhyme or reason.
Last year, for example, in the city of Largo, a small West Coast community in Florida, its City Manager, Steve Stanton, announced he was going for a sex change operation. The City Commission promptly held a standing room only meeting and fired him. Why? For 15 years, when he did his job as Steven he was fine. But when he chose to come into work as Susan his job was gone; her career in shambles.
What sense does this make? The role Mr. Stanton filled was managing numbers for a city budget. That task requires accounting skills, not a jockstrap or bra. His brain was not operated upon, but the community’s conscience was shocked, and it sent a ripple of disbelief through our national psyche.
Last month, President Obama selected Jenny Durkan, a Lesbian, to be the U.S. Attorney for Seattle, Washington. She was appointed because of the talents she brought to the table as a prosecutor, not her skill set in bed with her partner. What business is it of ours whether the City Manager of Largo performs the duties of the job as Steven or Susan as long as the tasks are filled with impeccable integrity?
If you were a sports fan in Los Angeles, you would have known Mike Penner as a first-rate journalist who had covered a variety of assignments including the Olympics, the Angels, tennis, and the sports media. But he made stunning news in 2007 when he announced he was a transsexual and would be writing his new columns under the name of Christine Daniels. And this affects us how?
If it is wrong to discriminate against an individual, that discrimination is inappropriate whether the person you are interacting with is male or female, straight or gay, black or white. Or Transsexual, metrosexual, bisexual, homosexual, or asexual. As long as they are not telling you to drop your pants, get over it.
Even the gay and lesbian community has moved too slowly in accepting the rights of transgendered persons. Within the gay rights movement, there was for too long silent resistance that we were pushing the envelope too far. Timid activists suggested we were ‘rocking the boat.’ Hell, why not? It needed new pilots.
Thus, as activists so too did we ultimately push the envelope on gay marriage, domestic partnerships, civil unions, equal rights in employment, and spousal benefits. If you are an activist anywhere, you have to learn to push the envelope somewhere. If you do not, someone will lick the seal and glue you in it. A civil right, like a sealed envelope, sometimes only comes about when you rip and tear that envelope. And it is not always a pretty and smooth cut.
Ultimately, then, transgender protections should not even be seen as a gay rights issue. We are simply supporting fundamental human rights protections. And while it is encouraging that such ordinances are being adopted in various communities, from Salt Lake City to Kalamazoo, we should no more have votes on inalienable human rights than we should have had majority opinions to determine whether southern states in the 1960’s should have had separate water fountains which read ‘Whites Only.’ It was simply a wrong which Time and decades needed to right. So too is it with those transsexuals who must endure wrongful ostracism today.
Legislators, not voters, need to codify equal rights protections, and they do not need popular approval to do so. What is popular is not always right, and what is right is not always popular. The same way a legislator would vote to strike down a law stating only Caucasians can sit on the front of a bus so too must they strike down a policy that allows a government agency to fire an employee because they do not approve of a transsexual. That person’s status is beyond the scope of their approval.
I do not know what killed Mike Penner this past weekend. If we learn it was a tortured conscience because of confusion over his identity, then our society lost a life uselessly. I do know when he ‘came out’ three years ago, as a married man with a wife and child, he called writing the story about his sexuality the “most frightening of all the towering mountains of fear” he ever had to conquer. He wrote: “I am a transsexual sportswriter…and it has taken more than 40 years, a million tears and hundreds of hours of soul-wrenching therapy for me to work up the courage to type those words."
If we can begin normalizing our laws today so as to promote social acceptance tomorrow, we can make a difference for those so impacted. We may even be saving a life.
Norm Kent is a Fort Lauderdale based criminal defense lawyer who is a member of the board of directors of NORML. He publishes the www.browardlawblog.com and can be reached at norm@normkent.com
Weekly ENDA Update on ENDA
by Jillian Weiss
The Employment Non-Discrimination Act bill (ENDA), which was originally planned for a House vote in September or October, then November, now looks like it's headed for a February landing. That's problematic because it puts ENDA into the Senate during an ultra-difficult time: a major legislative logjam, a major jobs initiative, midterm election campaigns, and a promised Don't Ask Don't Tell repeal.
The House Committee responsible for moving ENDA along, the House Committee on Education and Labor, has been slow-walking it, claiming that it needs some minor "tweaks" on language that has been vetted for years. Rex Wockner's blog today features quotes from some high profile activists questioning the delays, including political consultant Steve Hildebrand and former National Gay and Lesbian Task Force Executive Director Matt Foreman. Congresswoman Tammy Baldwin has also been quoted as saying that delay is not good.
Meanwhile, community action calls to Committee Chair George Miller of California over the past week have been unsuccessful in obtaining any statement or action. However, under the Rules of the U.S. House of Representatives, three members of the Committee can demand a markup, which must be scheduled within three days. The names of friendly Committee members are provided after the jump so you can call and demand action.
A nation-wide community conference call has been scheduled for tomorrow, Tuesday, Dec. 1st, at noon (ET) to discuss actions we can take to push a vote on ENDA now. It will last one hour. The agenda is posted after the jump. All are welcome, and I hope you will join us.
Register here: http://tinyurl.com/voteendanow
The Employment Non-Discrimination Act bill (ENDA), which was originally planned for a House vote in September or October, then November, now looks like it's headed for a February landing. That's problematic because it puts ENDA into the Senate during an ultra-difficult time: a major legislative logjam, a major jobs initiative, midterm election campaigns, and a promised Don't Ask Don't Tell repeal.
The House Committee responsible for moving ENDA along, the House Committee on Education and Labor, has been slow-walking it, claiming that it needs some minor "tweaks" on language that has been vetted for years. Rex Wockner's blog today features quotes from some high profile activists questioning the delays, including political consultant Steve Hildebrand and former National Gay and Lesbian Task Force Executive Director Matt Foreman. Congresswoman Tammy Baldwin has also been quoted as saying that delay is not good.
Meanwhile, community action calls to Committee Chair George Miller of California over the past week have been unsuccessful in obtaining any statement or action. However, under the Rules of the U.S. House of Representatives, three members of the Committee can demand a markup, which must be scheduled within three days. The names of friendly Committee members are provided after the jump so you can call and demand action.
A nation-wide community conference call has been scheduled for tomorrow, Tuesday, Dec. 1st, at noon (ET) to discuss actions we can take to push a vote on ENDA now. It will last one hour. The agenda is posted after the jump. All are welcome, and I hope you will join us.
Register here: http://tinyurl.com/voteendanow
Tuesday, November 24, 2009
Weekly ENDA Update
To: All guests of Weekly ENDA Update
From: Jillian Weiss
Date: November 23, 2009
It was a surprise to most people that the markup of ENDA, scheduled for last Wednesday morning at 10 am, was abruptly postponed on Monday night at 6:30 pm, heralded by a terse red notice on the House Committee on Education and Labor website. After all, ENDA had been touted for months as the next promise to be kept to our community, with LGBT House leaders embracing a vote in September or October.
But in a city like DC, where reading tea leaves is a high art, it really shouldn't have been much of a surprise. Rumors of an ENDA postponement appeared two weeks ago. Congressman Frank told a reporter that ENDA could be voted on "in February," and that the Domestic Partnership Benefits and Obligations bill (DPBO) is first in line before ENDA. When I wrote about these rumors, and the major concerns about pushing ENDA into a midterm election campaign timeframe, my politico friends took me to task. I was told to "calm down and listen up." "There's no delay on ENDA in the House," he said. Another one said "Barney just made a mistake. Don't make too much of it. You're panicking. It's not time to panic yet."
Barney Frank is many things, but he did not become the most powerful U.S. Representative in DC because he has messy accidents in public in front of news reporters.
Fast forward two weeks, to today, and we now know that the rumors were absolutely correct. The ENDA markup was postponed a week ago for "technical amendments." Instead of the usual procedure of setting a date a week or two later to give enough time to address the issues, no date has been set for the markup. The Committee on Education and Labor is saying it hopes to reschedule the markup in December, but no guarantees. But it's full speed ahead on DPBO, which had its markup on time last week, and which the Advocate reports will be voted on by the end of the year and rushed off to the Senate.
And now Congress is out of session until next week. Chairman George Miller should never have postponed this, but now that he has, he needs to move ENDA first thing next week. But there's more bad news after the jump. Click here to read more: http://bit.ly/6SlxIN
From: Jillian Weiss
Date: November 23, 2009
It was a surprise to most people that the markup of ENDA, scheduled for last Wednesday morning at 10 am, was abruptly postponed on Monday night at 6:30 pm, heralded by a terse red notice on the House Committee on Education and Labor website. After all, ENDA had been touted for months as the next promise to be kept to our community, with LGBT House leaders embracing a vote in September or October.
But in a city like DC, where reading tea leaves is a high art, it really shouldn't have been much of a surprise. Rumors of an ENDA postponement appeared two weeks ago. Congressman Frank told a reporter that ENDA could be voted on "in February," and that the Domestic Partnership Benefits and Obligations bill (DPBO) is first in line before ENDA. When I wrote about these rumors, and the major concerns about pushing ENDA into a midterm election campaign timeframe, my politico friends took me to task. I was told to "calm down and listen up." "There's no delay on ENDA in the House," he said. Another one said "Barney just made a mistake. Don't make too much of it. You're panicking. It's not time to panic yet."
Barney Frank is many things, but he did not become the most powerful U.S. Representative in DC because he has messy accidents in public in front of news reporters.
Fast forward two weeks, to today, and we now know that the rumors were absolutely correct. The ENDA markup was postponed a week ago for "technical amendments." Instead of the usual procedure of setting a date a week or two later to give enough time to address the issues, no date has been set for the markup. The Committee on Education and Labor is saying it hopes to reschedule the markup in December, but no guarantees. But it's full speed ahead on DPBO, which had its markup on time last week, and which the Advocate reports will be voted on by the end of the year and rushed off to the Senate.
And now Congress is out of session until next week. Chairman George Miller should never have postponed this, but now that he has, he needs to move ENDA first thing next week. But there's more bad news after the jump. Click here to read more: http://bit.ly/6SlxIN
Pass Enda Now!
States that prohibit discrimination based on sexual orientation. (21 states and D.C.) In 29 states, it’s still legal to fire someone solely because they’re lesbian, gay, or bisexual; in 38 states it is legal to fire someone solely for being transgender.
Thousands of hardworking lesbian, gay, bisexual and transgender Americans have lost their livelihoods simply because of who they are. And millions more go to work every day facing that threat.
It's time to ban workplace discrimination on the basis of sexual orientation and gender identity. Broward County swears in openly gay mayor
by Joseph Erbentraut
EDGE Editor
Tuesday Nov 24, 2009
|
But the news was not been exactly shocking to Keechl, whose 2006 election to the Broward County Commission already labeled him Florida’s highest-ranking openly gay politician of any stripe in the state’s history.
But perhaps, just two days after his appointment, coming off an evening spent in the company of Virgin America’s Sir Richard Branson, the news just had not yet sunk in when EDGE had the opportunity to talk with Keechl on his recent victory. He described his appointment both as "unbelievable" and "not shocking."
"It’s still a whirlwind," Keechl said. "But when I was elected to County Commission three years ago, that was probably more shocking to me. But I don’t think ’shocking’ is the right word as much as a ’hurdle.’ The historic nature of [that victory] really affected me."
’Hurdle’ feels both more accurate and familiar for Keechl, who said he grew up poor and was the first in his family to graduate from high school. He said he "figured out" a way to get to law school before opening his own firm. And Keechl pursued his political career with similar determination.
"I’ve always known if I wanted something, I could get it," he said. "I thought it would be extremely difficult for an openly gay or lesbian person to be elected to a position of power, one that I would want."
Angered over previous Commissioner Jim Scott’s questionable decisions related to land purchases, Keechl entered the race in 2006 amid concerns his socially progressive views and sexual orientation could have proven problematic within the predominantly Republican district. They weren’t. And he won the seat through his environmental positions and his pledge to not raise taxes.
During his tenure as commissioner, Keechl also played a heavy role in championing causes for the county’s LGBT residents, though he doesn’t describe these issues or his identity as his platform’s "primary consideration." His accomplishments include adding transgender people to the county’s Human Rights Ordinance, reinforcing nearly-mandatory domestic partner benefits and sponsoring resolutions against Don’t Ask, Don’t Tell.
Having already instituted "the bulk" of specific goals for LGBT-friendly legislation,Keechl said he plans to utilize his influence to pursue further progress in the socially conservative Sunshine State. As one example, he has endorsed the progressive Attorney General candidate Dave Aronberg. He said he did not anticipate the power of his mayoral influence.
"I think I was in the right place at the right time as a gay man to ascend to a position of power as commissioner and then as the mayor," Keechl said. "It also gives me some bargaining power to bring more attention to the social issues that are important to me and the economic issues that are important to my constituents."
And owing back to his sexual orientation, Keechl said he hopes to serve as a positive example of what openly LGBT political candidates can be and accomplish. His partner Ted Adcock has remained by his side through nearly every step of his campaign, including his swearing-in ceremony last week.
"It gives me an opportunity, and a burden of course, to show people in Florida that 1.8 million people can be lead by an openly gay man or lesbian and it can be done well," Keechl said. "I want to be a role model and I’ve always wanted that."
As he looks to the year ahead in these economically turbulent, socially divisive times, he said he anticipates a lot of hard work. And Keechl added he did not rule out opposition from the state’s conservative voices. He seems ready, however, for whatever comes his way.
"I am proud to be the mayor of Broward County, proud to be an openly gay man and proud to be a role model to the extent that I am," Keechl added. "This is a great job and you have to earn it every day so I’ll work twice as hard as I worked to get there to stay there. I am looking forward to the next 12 months."
New York's Highest Court Upholds Benefits for Same-Sex Spouses in Narrow Ruling
| 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.
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