Fairness and fear of legal liability convinced New York Gov. David A. Paterson to direct all state agencies to immediately recognize as valid same-sex marriages solemnized outside of New York, the governor said Thursday.
"If I didn't take this action, I would leave this state open to lawsuits," Paterson said. "I would leave the state treasury open to monetary damages and I would be discriminating against individuals who are coming here from other jurisdictions who are allowed that right [to marry] -- and now are suddenly being denied that right."
Paterson compared recognizing legal same-sex marriages as akin to the state's traditional policy of recognizing as valid common-law marriages from other jurisdictions. Same-sex marriage is not legal in New York, and neither is common-law marriage.
"We have a time-held and time-tested tradition of honoring those [common-law] marital rights," Paterson said. "Same-sex marriages, marriage equality now in two other states, would come under the ambit of that interpretation of the law."
Same-sex marriages are legal now in Massachusetts, and California will begin to allow same-sex couples to wed on June 17 under a May 15 ruling by that state's highest court. Canada, South Africa, Spain, Belgium and the Netherlands also allow same-sex marriage.
In a memo dated May 14, Paterson's counsel David Nocenti advised counsels in all state agencies that a series of recent court rulings indicate that comity must be extended to same-sex marriages performed legally in other jurisdictions. Agencies not doing so could expose themselves to legal liability, Nocenti warned.
The governor's directive applies only to state agencies. It does not impose any obligations on private employers. Moreover, it is unclear what it means for state policies that are enforced by the courts, such as child-custody rules, rather than by administrative agencies.
In the most prominent of those cases, the Appellate Division, 4th Department, ruled on Feb. 1 in Martinez v. County of Monroe, 50 AD3d 189 (2008), that a community college in Rochester must provide health benefits to the same-sex spouse of an employee. The couple had been wed in Canada.
Paterson Thursday cited Martinez as having helped prompt his directive to recognize legal same-sex marriages from other jurisdictions.
The Court of Appeals on May 8 declined to hear an appeal of Martinez, finding there were still issues outstanding for the lower court to decide. The court could consider an appeal on the merits in the future.
In its landmark gay marriage ruling in Hernandez v. Robles, 7 NY3d 338 (2006), a 4-2 Court of Appeals decided that only opposite-sex couples may legally wed in New York. Changing that interpretation of the Domestic Relations Law is up to the Legislature, not the courts, the majority ruled.
Paterson said his directive will bring legally married same-sex couples a host of advantages that husbands and wives now have.
A state business license that automatically transfers to the spouse when a husband and wife are partners will now similarly be passed on to the same-sex spouse in a legal gay marriage, Paterson said.
Citing another example, Paterson said his decision will make counseling and other services by criminal justice agencies available to members of same-sex marriages when one spouse is killed or injured, as heterosexual spouses are now entitled to.
The governor said there are more than 1,000 rights and responsibilities in New York state statutes and regulations that apply to legally married couples. A compendium has been prepared by the New York City Bar Association and the Empire State Pride Agenda Foundation.
In April 2007, the Department of Civil Service extended health insurance coverage to the legally wed spouses of state employees. In September 2007, Comptroller Thomas P. DiNapoli directed that the state public employee pension fund recognize legal same-sex marriages from any jurisdiction.
OPPOSITION TO MOVE
Opponents of same-sex marriage charged Thursday that Paterson was putting the state's imprimatur on gay marriage without consulting the Legislature.
"Marriage in New York state is between a man and a woman," Conservative Party Chairman Michael R. Long said. "The California judges overturned the will of the California people and Governor Paterson is apparently trying to do the same thing in New York."
Joseph Bruno, the Republican majority leader of the Senate, accused the governor of overstepping his authority.
"Governor Paterson's decision to have agencies recognize gay marriage is an attempt to subvert the legal authority of the Legislature," he said.
Bruno said lawyers for the Senate majority were studying the legality of Paterson's decision.
The Democrat-dominated Assembly approved a bill authorizing same-sex marriage in New York last year, 85-61, but the bill was not taken up by the Republican-controlled Senate. Even prior to Paterson's directive to state agencies, Bruno had said the Senate would not consider a bill recognizing same-sex marriage this year, an election year for all members of the Legislature.
Paterson denied Thursday that he was usurping the Legislature's power.
"This is not an end-run around the Legislature," Paterson told reporters at a Manhattan news conference. "If the Legislature wanted to take an action it could. The Legislature has not provided for marriage equality here in New York. I'm an advocate for it, but that's not the reason I came to this conclusion. I am taking the same approach that this state always has with respect to out-of-state and marriages conducted by foreign governments being recognized here in the state of New York."
Two New York matrimonial law experts said Paterson's reasoning that valid same-sex marriages should be no different for purposes of recognition by New York state than common-law marriages is sound.
"I think he is on quite solid legal ground," said Leonard G. Florescue of Blank Rome, a New York Law Journal columnist.
New York has traditionally recognized all types of marriages solemnized in other jurisdictions as long as they are not "abhorrent" to the state or its laws, Florescue said. For instance, while New York does not allow an uncle to wed his niece, there have been instances where New York courts have recognized the arrangement, solemnized elsewhere, as valid here, according to Florescue.
Lee Rosenberg said Paterson was right to cite, as the governor did Thursday, the full faith and credit clause of the U.S. Constitution as also obligating the state to recognize legal same-sex marriages in other jurisdictions.
"You must recognize valid laws and determinations made by other states," said Rosenberg of Saltzman, Chetkof & Rosenberg in Garden City, N.Y. "It is a basic principle of how our judicial system and our legal system operate."
Paterson said he was not advocating through his directive to state agencies for adoption of same-sex marriage in New York, though he acknowledged his support for such legislation.
"As far as I'm concerned, I think it [same-sex marriage] is beautiful," Paterson said. "I think it's fine. I think regardless of the tenets of the religion of some and the beliefs of some, it is something that our government should allow people."
The governor also dismissed the complaints of state lawmakers, with whom he has enjoyed cordial relations since replacing Eliot Spitzer as governor on March 17.
"Some of those busy legislators who think I am doing an end-around, maybe they should go into the Legislature and actually work on something," said Paterson.
