Lee Rosenberg Family Law Blog on Lawyers.com

SAME SEX-MARRIAGE IN THE COURT OF APPEALS

The Court of Appeals, in Godfrey v Spano 2009 NY Slip Op 08474 (November 19, 2009) had the issue of same-sex marriage before it some three years after it considered the landmark case Hernandez v Robles, 7 N.Y.3d 338 (2006). While affirming the right of a municipality to recognize extra-jurisdictional same-sex marriages for purposes of public employee health insurance and other benefits, the Court's majority declined to address the larger issue before it-- recognition of all such marriages for all purposes.

In Hernandez, a divided Court of Appeals affirmed the holding that the Domestic Relations Law limits marriage to opposite-sex couples and stated that it was up to the legislature and not the court to make the change. In subsequent appellate and trial court decisions [particularly including Martinez v County of Monroe, 50 AD3d 189 (4th Dept 2008) lv dismissed 10 NY3d 856 (2008)], the separate issue of full faith and credit and/or comity were deemed to be distinguishable from the Hernandez decision so that even if New York did not sanction same-sex marriage, it would be required under long standing constitutional principles, to recognize same-sex marriages which were performed in jurisdictions which did sanction those marriages. Such principles are such as those applied in the domestic relations sense to "common law" marriages.

Upon appeal to the Court of Appeals, the Court, with a concurring opinion by Judge Ciparick and joined by Chief Judge Lippman and Judge Jones, declined to extend their holding, stating,

"Because we can decide the cases before us on narrower grounds, 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. We end, by repeating what we said in Hernandez v Robles, 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’"

The concurring opinion, however, went further and averred,

"Although I agree with the result reached by the majority, I write separately to set forth my view that the orders under review should be affirmed on the ground that same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our State's longstanding marriage recognition rule. The issue is squarely presented in these appeals and plaintiffs' standing allegations are sufficient to allow us to reach it. 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. 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."

While the High Court is certainly within its right to address the narrower issue, given the declination of leave to appeal in Martinez and the Legislature’s inability to even act upon a no fault divorce law, the same-sex marriage issue will most likely linger in a way that does ongoing disservice to time honored precepts of full faith and credit as well as comity. The Court’s inaction on this "elephant in the room" issue will only create more confusion and moreover give those opposed to same-sex marriage more room to hack away at constitutional bedrock. Even if one opposes same-sex marriage on "principle", we still must preserve the recognition of laws which are properly valid in other states and jurisdictions and it does not require legislative action to do so.

The decision in Godfrey mat be found at:
http://www.nycourts.gov/rep orter/3dseries/2009/2009_08474.htm

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