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It had to happen. While many in front of and behind the political scenes have fought the concept of same-sex marriage, the well-established principles of “full faith and credit” or “comity,” make it inevitable that same-sex marriage and the concomitant right of those couples to divorce would be somehow recognized in New York. In two recent cases, the Fourth Department’s Feb. 1, 2008 decision in Martinez v. County of Monroe 1 and the Feb. 25, 2008 decision in Beth R. v. Donna M., by Justice Laura E. Drager in the Supreme Court New York County, 2 the application of these settled constitutional precepts mandates the recognition of same-sex marriage in New York. Further, once the union is accepted as a marriage, as it must be, the right to terminate the marriage under the Domestic Relations Law, should also apply. ‘Hernandez v. Robles’ While the Court of Appeals’ split decision in Hernandez v. Robles 3 reluctantly found that the existing statutory law of the state did not provide for the recognition of same-sex marriage and deferred to the Legislature, lower courts still have had to wrestle with how out-of-state unions would be recognized. As I stated in a prior column for the New York Law Journal, 4 “Regardless of the position one may hold, we find ourselves surrounded by States which recognize one form or another of same-sex relationships, including marriage. Ultimately, we will at the very least be required to adjudicate full faith and credit issues and become entangled, courtroom by courtroom, with a variety of conflicting decisions unless the Legislature takes the stand that the Court of Appeals has asked it to – any stand.” At that time, same-sex “marriage” was recognized in Massachusetts. Connecticut, Vermont and New Jersey recognized same-sex “unions.” In January 2008, New Hampshire also recognized same-sex “unions.” Canada fully recognized same-sex marriage on July 20, 2005 after most of its provinces and territories had already individually done so. 5 The Netherlands, 6 Belgium, 7 South Africa, 8 and Spain 9 also recognize same-sex marriage. It was a matter of time before the full faith and credit case law would begin recognizing gay and lesbian unions even where the Legislature would not. Post- Hernandez, in Godfrey v. Spano, 15 Misc3d 809 (Sup. Ct. Westchester County 2007), the county executive’s order recognizing out-of-state, same-sex marriages was upheld. In Funderburke v. New York State Dept of Civil Service, 13 Misc3d 284 (Sup. Ct. Nassau County 2006), the court following Hernandez (although acknowledging that Hernandez “did not directly address the issue of whether New York should recognize same-sex marriages performed in foreign jurisdictions”), held that a Canadian marriage was not recognizable in New York. In that case the plaintiff sought to have his husband entitled to spousal health benefits. In a case addressing the Massachusetts law, Gonzales v. Green, 14 Misc3d 641 (Sup Ct N.Y. County 2006), the court ruled that the Massachusetts’ same-sex marriage was not entitled to recognition, because the Massachusetts statute does not require other states to recognize the marriage where “such other state does not itself recognize it,” thus obviating the full faith and credit application. The Appellate Division Fourth Department in Martinez, is the first appellate case to navigate the full faith and credit issue in the post- Hernandez waters and now paves the way for lower courts to follow. Similar to the Funderburke case, but arriving at the opposite conclusion, Martinez, involved a decision over whether or not a lesbian couple’s valid Canadian marriage was entitled to recognition in New York for purposes of establishing the right of spousal medical benefits. The plaintiff, Patricia Martinez, was employed by Monroe Community College and applied for spousal health benefits for her wife, Lisa Ann Golden. That application was denied by the county and later by the Supreme Court on motion before being reversed on appeal. ‘Express Legislation’ The Fourth Department focused on the Hernandez court’s proclamation that the Legislature must determine whether or not same-sex couples have the right to marry, held:
Hernandez does not articulate the public policy for which it is cited by defendants, but instead holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York (see id. at 356). The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages (see id. at 358-359) and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff’s marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC �1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state. Thus, we conclude that plaintiff’s marriage to Ms. Golden, valid in the Province of Ontario, Canada, is entitled to recognition in New York in the absence of express legislation to the contrary. As the Court of Appeals indicated in Hernandez, the place for the expression of the public policy of New York is in the Legislature, not the courts (see 7 NY3d at 361, 366). The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad. Until it does so, however, such marriages are entitled to recognition in New York.
‘Beth R. v. Donna M.’ Following the reasoning in Martinez, the Beth R. v. Donna M. case in New York County Supreme Court is a case with the potential for wide-reaching effect, as it has one added and critical dimension – it is an action for divorce. In Beth R., the parties, as in Martinez, were also married in Canada, in this instance on Feb. 14, 2004. There are two children born to the defendant by artificial insemination, neither of whom were adopted by plaintiff, but the second child was born after the marriage and both carry plaintiff’s last name. Defendant moved for dismissal of the action for failure to state a cause of action in reliance upon Hernandez v. Robles. Justice Laura E. Drager denied the motion holding that the Canadian marriage was valid and is entitled to recognition in New York. The court elaborated upon the Martinez holding and further stated:
Recent pronouncements by statewide and local Executive Branch offices support this court’s conclusion that out-of-state same-sex marriages are properly recognized under our law. For example, prior to the Court of Appeals decision in Hernandez then-Attorney General Elliot Spitzer issued an opinion in which his office concluded that although the Legislature did not intend to authorize same-sex marriages under the Domestic Relations Law, “New York law presumptively requires that parties (to same-sex marriages from other jurisdictions) must be treated as spouses for the purposes of New York law.” 2004 NY Op. (Inf.) Att’y Gen. 1, 34-5. This same conclusion was reached by current Attorney General Andrew Cuomo even after the Hernandez decision. See, Jan. 18, 2007 Reply Mem. In Further Supp. of Def’s Mot. to Dismiss, Godfrey v. Hevisi, No. 5896/06 (Sup. Ct. Albany County). The New York state comptroller issued an opinion to the same effect, enabling spouses of out-of-state, same-sex marriages to receive certain benefits pursuant to its pension system. Letter of Corporation Counsel Michael A. Cardozo to Hon. Michael R. Bloomberg, dated Nov. 17, 2004. Most recently, and well after Hernandez the New York State Department of Civil Service (DCS) announced its policy to recognize as valid out-of-state, same-sex marriages for the purpose of providing spousal benefits under the New York State Health Insurance Program and other department administered benefit programs. NYS DCS, Employee Benefits Division Policy Memorandum revised May 1, 2007. (footnotes omitted)
Domestic Relations Law It is of note that there is only a Summons with Notice for Divorce in Beth R. and no complaint has yet been served. If, however, the complaint is properly interposed and a statutorily valid cause of action is sustainable, then the court should under the Domestic Relations Law have jurisdiction to dissolve it. While the Hernandez decision holds that the Domestic Relations Law does not apply to marriage, citing to Articles 2 and 3 thereof and use of the words “husband,” “wife,” “bride” and “groom,” the holding does not address the applicability of the Domestic Relations Law to a dissolution of a marriage declared valid in this context. While it nevertheless remains clear that there was no legislative intent for the Domestic Relations Law to apply to same-sex couples, equal protection would seem to demand that if the marriage is recognized to be valid in New York, a party to that marriage would have the same rights as any opposite-sex party to have that marriage dissolved and obtain ancillary relief as long as the jurisdictional prerequisites have been met. Accordingly, in the event Beth R. presents a proper claim for divorce, all else which flows within the DRL is open for consideration, including those issues of custody and support which are raised in Justice Drager’s decision. [ Editor's Note: Justice Drager ordered that the parties appear in court on March 24 for a conference to address the custodial issues. Justice Drager's ruling may provide the occasion for an appeal to the 1st Department, thus providing an opportunity for every department of the Appellate Division to weigh in on the same-sex marriage recognition issue before it is decided by the Court of Appeals.] As Judge Robert A. Smith writing for the majority in Hernandez, stated:
We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.
Legislatively then, on April 27, 2007, then-Governor Elliot Spitzer proposed a bill which would legalize gay marriage. That bill passed the Assembly on June 19, 2007, but not the Senate. On May 31, 2007 another Bill (S.5994) was introduced in the Senate which proposed that a new Article 10-A be added to the Domestic Relations Law stating that, “A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.” It was referred to the Judiciary Committee on Jan. 9, 2008. Simultaneously, a bill ( A.4978/S.2800) specifically denying the right of same-sex couples to marry and refusing to recognize any such marriage which is “recognized or solemnized” in other jurisdictions was also referred to the Judiciary Committee. Conclusion While it is not expected that these matters will be resolved anytime soon if at all, evolving case law and the reality of life in the global 21st century continues to present deep-rooted questions which need to be answered. There is a large vocal segment of the populace who wish to be married, but in many places, including New York, can not. It would seem, however, that they may have the ability to divorce. It follows then, that if marriage is presumptively the more noble state, they should have the right to enter it. Lee Rosenberg is a partner at Saltzman Chetkof & Rosenberg in Garden City and a Fellow of the American Academy of Matrimonial Attorneys. E-mail: [email protected]. Endnotes: 1. AD3d , 2008 NY Slip Op 00909 (4th Dept. 2008). 2. See NYLJ, Feb. 26, 2008, p. 1, col. 3. 3. 7 NY3d 338 (2006). 4. Lee Rosenberg, “ On Matrimony, the Miller Commission, Legislative Failure,” NYLJ, Oct. 9, 2007, p. 4, col 4. 5. Civil Marriage Act (2005). 6. Registered Partnership Act of 1998. 7. Belgian Civil Code at Article 143 (effective June 1, 2003). 8. Civil Union Act (Act 17) of 2006. 9. Civil Code Article 44 (2005).

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