New York's highest court, which three years ago ruled that same-sex couples do not have a constitutional right to marry in the state, will get an opportunity to approach the issue from a different angle next week: Whether state and local governments can recognize same-sex marriages solemnized in jurisdictions where such unions are legal.
Two cases challenging the recognition of same-sex marriages will be heard together as the Court of Appeals begins its next session on Tuesday.
The Court also will hear cases next week and the week after challenging the use of eminent domain in one of the largest private developments in recent New York history, the Atlantic Yards project in Brooklyn, and whether New York City can be held liable for injuries suffered by an elementary school teacher hurt when she stepped in to break up a fight between fourth-graders.
The same-sex marriage case will be the first time the Court has revisited the issue since 2006, when it ruled in Hernandez v. Robles, 7 NY3d 338, that the state Constitution contains no guarantee that same-sex couples can wed.
Lawyers for same-sex couples said they hope the Court will validate the status of marriages performed in Canada, Connecticut, Massachusetts and in other jurisdictions where such unions are legal.
They said they also hope the Court, if it upholds recognition of same-sex marriages from other jurisdictions, could nudge the Legislature toward approving such unions in New York. The Assembly in 2007 and 2009 approved bills legalizing same-sex marriage, but the Senate has yet to act on the legislation.
The two cases to be heard by the Court on Tuesday are Godfrey v. Spano, 147, and Lewis v. New York State Department of Civil Service, 148.
In Godfrey, a 2006 executive order by Westchester County Executive Andrew J. Spano authorized county agencies to give full benefits to employees who were validly married in states outside New York.
Lewis challenges a determination by the Civil Service Commission that upheld the granting of benefits to the spouses of state employees married where such unions are legal.
The Appellate Division, Second Department, unanimously affirmed the action in Westchester County (NYLJ, April 1) and a Third Department panel unanimously backed the Civil Service Commission's determination earlier this year (NYLJ, Jan. 23).
In the Third Department ruling, the judges split 3-2. The majority held that New York has a long-standing rule of recognizing marriages legally solemnized in other jurisdictions unless they expressly violated New York laws, such as those against polygamy, or public policy concerns against the marriages of close relatives.
The two concurring justices wrote that they would defer to the Civil Service Commission's discretion in deciding when health care benefits could be granted to spouses and dependents of state employees. But they said they did not want to get into the broader public policy questions whether the courts could validate same-sex marriages.
Susan L. Sommer, an attorney for Lambda Legal, said Thursday she would argue along the lines of what the majority in the Third Department in Lewis had determined.
"I expect to talk about the fact that there is a two-centuries-old, well-settled rule in New York, the marriage recognition rule, that provides that marriages entered out-of-state, unless narrow exceptions are applied that the state Legislature has expressly imposed, are to be recognized," said Sommer, who will represent intervenor couples in both Godfrey and Lewis. "We see there is absolutely no ban on recognition of out-of-state marriages to same-sex couples."
Sommer said she had no estimate of how many same-sex couples who were married in other jurisdictions live in New York, but said the number is now in the "thousands."
Sommer's co-counsel, Jeffrey Trachtman of Kramer Levin Naftalis & Frankel, said he believes another affirmance of the validity of a same-sex marriage, even if it was solemnized in a jurisdiction outside of New York, will increase the pressure on the Legislature to approve a bill legalizing gay marriage.
Trachtman said he and Lambda Legal first started to work on cases calling for recognition of same-sex marriages in 2004, before the litigation in the four cases were decided in Hernandez. Though Hernandez was a loss, Trachtman said he thought it helped focus attention on the issue in New York law.
"Everything in the civil rights area moves in fits and starts," Trachtman said Thursday. Hernandez "was clearly a setback. But on the other hand, the majority decision was wrong and it was seen as wrong," and helped fuel momentum in the Legislature.
Two of the judges who ruled in Hernandez are no longer on the Court of Appeals.
Former Chief Judge Judith S. Kaye, who dissented, stepped down from the Court at the end of 2008 due to mandatory retirement rules. She has been replaced by Chief Judge Jonathan Lippman.
Former Judge George Bundy Smith, who was in the majority in the ruling, was replaced in 2006 by Judge Eugene F. Pigott Jr.
Another ex-judge, Albert Rosenblatt, recused himself from the 2006 ruling.
The challenges to the recognitions of the marriages will be argued by Brian W. Baum, an attorney for the Scottsdale, Ariz.-based Alliance Defense Fund. The conservative-Christian group represents clients it says are being victimized by laws that discriminate against them because of their beliefs.
In an interview earlier this year, Baum said his strategy has been to get the issue before the Court of Appeals and to argue that it is a matter for the Legislature and not the courts (NYLJ, Feb. 3).
Baum's co-counsel, James Campbell, said Thursday the Court of Appeals' ruling will extend far beyond those plaintiffs involved in the two matters.
"These cases are important, like Hernandez, because of the practical implications," Campbell said. "If the state of New York recognizes these unions on a widespread scale, then for all intents and purposes, same-sex marriages are recognized in the state of New York."
Trachtman countered that while Campbell and his group have a right to advocate in New York courts on behalf of their clients, the issue might best be left to New Yorkers to decide.
"They have a mission and they are entitled to their mission," Trachtman said. "But there doesn't seem to be any groundswell in New York against recognizing these marriages."
Assistant Solicitor General Sasha Samberg-Champion will argue in favor of recognizing the same-sex marriages on behalf of Attorney General Andrew M. Cuomo and Comptroller Thomas DiNapoli.