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N.Y. Judges Stake Out Narrow Grounds in Upholding Same-Sex Benefits
New York Law Journal
November 20, 2009
The New York Court of Appeals on Thursday affirmed the recognition of same-sex marriages by a county executive and a state agency, but by a bare 4-3 margin declined to extend full New York recognition to such marriages contracted in other states and countries where they are legal.
Rather, the four-judge majority importuned the Legislature to decide the question, as it did in 2006 when the court decided that same-sex couples have no constitutional right to wed within the state but left open the status of same-sex marriages contracted outside the state.
"We end, by repeating what we said in Hernandez v. Robles (7 NY3d 338 (2006)), expressing our hope that the Legislature will address this controversy; 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,'" Judge Eugene F. Pigott Jr. wrote.
Joining Pigott were Judges Robert S. Smith, Victoria A. Graffeo and Susan Phillips Read.
Chief Judge Jonathan Lippman and Judges Theodore T. Jones Jr. and Carmen Beauchamp Ciparick agreed that the rulings before the court in Godfrey v. Spano, 147, and Lewis v. Department of Civil Service, 148, should be affirmed.
However, they went further than the majority, arguing that the state's long-standing marriage recognition rule dictates that New York give "full legal recognition" to same-sex marriages if they are performed in jurisdictions where they are legal.
"The effect of the majority's rationale in affirming these orders will be to permit an unworkable pattern of conflicting executive and administrative directives promulgated pursuant to the individual discretion of each agency head," Ciparick wrote in a concurring opinion. "We ought to avoid the confusion that would arise from a same-sex couple being considered legally married by one agency for one purpose but not married by another agency for a different purpose."
The four-judge majority concluded that there was no need to address the broader recognition issue.
Because they reached their conclusion on "narrower grounds," the majority said "we find it unnecessary to reach defendants' argument that New York's common law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages."
In Godfrey, the four judges held that the plaintiffs did not have a cognizable claim under General Municipal Law §51 for unlawful expenditure of taxpayer funds.
In Lewis, the majority determined that the president of the Civil Service Commission was properly exercising his broad discretion to set the parameters of health care benefits by extending coverage to the spouses of same-sex couples married outside of New York.
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 challenged 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, 2nd Department, unanimously affirmed Godfrey, and a 3rd Department panel in Lewis unanimously backed the Civil Service Commission's determination earlier this year. The court heard arguments in October.
The Third Department panel split 3-2 on the marriage-recognition question. The majority held that New York has a long-standing rule of recognizing marriages legally solemnized in other jurisdictions unless they expressly violate New York laws, primarily those against polygamy and incest, or public policy concerns against the marriages of close relatives.
The majority of the Court of Appeals on Thursday adopted the reasoning of the two dissenters in Lewis, affirming the recognition of the same-sex partners based on the broad discretion of the Civil Service Commission's president.
Recognition of the same-sex partners was challenged in both cases by the Arizona-based Alliance Defense Fund, a conservative Christian group.
The Assembly has approved a bill legalizing same-sex marriages this year but the bill has yet to be addressed by the Senate. Gov. David A. Paterson said he supports the measure and will sign it if it reaches his desk.
