Topic: Gay Rights
New York Recognizes Gay Marriage (For Now) The political and Constitutional labyrinth that led to New York recognizing gay marriages from other states.by RS Davis
(Libertarian)
Thursday, May 29, 2008
Today marks an historic day in New York, at least for the time being, as out of state gay marriages will be officially recognized in the state. The Hartford Courant reports:
New York state will recognize gay marriages legally performed in other states and countries, according to a memo from the counsel to Gov. David Paterson, the governor's spokeswoman said Wednesday.
State agencies, including those governing insurance and health care, must immediately recognize same-sex marriages legally performed elsewhere as valid in New York, according to the directive.
Same-sex marriage is not legal in New York, and the state's highest court, the Court of Appeals, has said it can only be legalized by the Legislature.
But the memo, based on a Feb. 1 New York Appellate Division court ruling, would recognize the marriages of New Yorkers who are legally wed elsewhere.
The decision to which they refer in that story is Martinez v. County of Monroe. Patricia Martinez is a New Yorker who works for Monroe Community College. She married her sweetheart offour years, LisaGolden, in a 2004 ceremony in Canada. Just like any married couple, they have joint wills, share bills, andthey also own a home together. (Now, marriage is fleeting, but damn, a mortgage is a real commitment.)
The controversy arose when Golden lost her job as an inventory control specialist, and Martinez wanted to add her spouse to her benefits package at the college. Obviously, she was turned down, or there'd be no lawsuit. The college asserted that since New York State didn't recognize their marriage, neither would the Rochester college.
So, she took them to court, and lost in 2006. Undaunted, she appealed the ruling, and on February 1st of this year, the appellate court ruled in her favor based on New York's longstanding common law "marriage recognition rule," which, according to The New York Times, means that "marriages validly contracted out of state must be accorded respect in New York, and parties to such unions treated as spouses, regardless of whether the marriage would be allowed in New York."
So, it came down to a "full faith and credit" issue, which is the Constitutional stipulation that contracts (among other things) rendered outside the state must be recognized in-state. (Incidentally, it is this clause, combined with the Equal Protection Clause of the Fourteenth Amendment, that is the reason former Libertarian presidential candidate Steve Kubby rightly thinks there is a role for the federal government in the gay marriage debate.)
The Defense of Marriage Actsomehow manages to circumvent that Constitutional provision without amending the Constitution, saying that no state "need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state."
But the rub for New York is that they have no law banning gay marriage, which takes it out of DOMA's purview. So the court rightly concluded that without an outright ban, they must give that out-state marriage contract the full faith and credit of New York marriage.
So, you still can't get married in New York if you are gay, but if you go to California, which is the only pro-gay marriage state without a residency requirement, you can get hitched, come back to New York, and they have to recognize the marriage. Saidthe NY ACLU, "If a marriage is valid in the state or country in which the marriage took place, New York law generally requires the recognition of that marriage. This case involved a straightforward application of that principle."
Today's announcement by the governor simply cemented the application of that ruling into official New York policy, and some people were expectedly not happy. Rev. Jason McGuire of the ironically named New Yorkers for Constitutional Freedom issued a releasesaying that the governor "has usurped the funcion of the New York State Legislature and has forced his radical social views upon the citizens of New York State."
But what he doesn't understand is that this decision wasn't the governor's at all, but that of the State Supreme Court. The governor wassimply implementing the changes required by their correct decision. Common law of New York requires that they honor those gay marriages until the legislature passes a ban.
Now, we just have to hold our collective breath and hope there is not enough political capital in the liberal state to enact such a ban.
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2008 RS Davis, all rights reserved.
Published: Thursday, May 29, 2008
Last modified: Thursday, May 29, 2008
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I agree on the importance of marriage equality, but the author's understanding of the full faith and credit clause is incomplete.
First, the Supreme Court has long recognized that a state may apply its own public policy in evaluating the legality of marriages performed in other states. (A famous case involves a man who married his niece in Rhode Island. At the time the man died, the couple lived in New York, whose courts refused to recognize the marriage for purposes of determining whether the woman would inherit the estate.) The reasoning seems to be that marriage is not a judicial act entitled to full faith and credit, but something more akin to a contract or a license. The fact that a contract or a license is legal in the state where it is entered into does not entitle the contract to be enforced (or the license recognized) in a state where the contract is illegal.
Thus, in this respect, the so-called “Defense of Marriage Act” really didn’t change the law.
Second, The second sentence of the full faith and credit clause expressly gives Congress the authority to regulate how out of state acts are to be interpreted.One could argue that this authority is limited, but I think that’s a minority view.
There is some debate about that. Personally, I see the first sentence as saying what they must do (honor contracts), with the second sentence giving Congress the right to choose how to make them do it, and how to make them prove it.
Posted By: Paul Benedict
Date: 2008-05-29 19:12:39
Once again "justices" take over another aspect of American life. This one aspect of American life is, of course, not at all important. This attack on liberty is Orwellian, and it's about being Orwellian. It’s not about equality.
When we seek racial equity, we don't declare all races Caucasian. When we seek gender equity, we don't find that all girls are boys. There are many other ways to address so called inequities in our society beside making what was once a shining beacon on the hill a by-word for hypocrisy on a scale unparalleled in the history of the world. Well intentioned minorities or not, the courts do know better. Behind this are the forces that do not love the liberties we have enjoyed in this land.
Insurance companies, like the one administering benefits in the college above, will have to get more specific what they mean by "family" and "spouse".
Luckily I've worked for a company that recognized my fiancee at the time as "domestic partner". My health plan was more generous than hers, so it worked out for us. The "domestic partner" agreement I had made sense. It limits benefits to only one other adult who doesn't qualify as a spouse or on someone else's domestic partner agreement. If the situation changed, I was required to inform the HR department, or I'd be liable for the increased premiums and risked termination. It seemed fair. An insurance company needs to limit its exposure.
The homosexuals make, what, 4% percent of the population? I don't think it will have a significant impact on health insurance rates. It's not going to cost a company any more than to cover a non-working spouse of a hetero marriage. With more people deciding not to get married at all, "domestic partner" might become the norm instead of the exception. The benefit helps keep your best employees. I don't see how it threatens other people's marriages. You shouldn't be forced to marry someone you can't stand long-term, just for the benefits.
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2008 RS Davis, all rights reserved.