Will court nudge the legislature in New York?

by on April 1, 2009  •  In Marriage

New York's highest state court, the Court of Appeals, granted review yesterday in two cases in which conservatives challenged lower court decisions recognizing out-of-state same-sex marriages as valid. The Alliance Defense Fund, which represents the parties who just persuaded the court to hear their cases, is probably ecstatic. Since lgbt rights groups had won the lower court decisions, they tried – unsuccessfully – to persuade the court not to hear the appeals.

One case, Godfrey v. Spano, 871 N.Y.S.2d 296, stems from the Westchester County executive’s 2006 decision to begin officially honoring out-of-state marriage licenses for gay couples the same way it did for heterosexual couples.

The other case, Lewis v. New York State Department of Civil Service, 872 N.Y.S.2d 578, was filed after the department agreed in 2007 to begin recognizing out-of-state, same-sex marriages for the purpose of extending health insurance to spouses of public employees.

So, on the face of it, not good news for the lgbt team.  Meanwhile, there is another major battle brewing in the state. The marriage equality bill is bottled up in the wildly dysfunctional New York State Senate, creating such a mess that the Majority Leader told an HRC dinner that it was a no-go for this year.  That really slapped a wet blanket on the crowd, not least because it was lots and lots and lots of gay dollars from around the country that fueled the Dems' takeover of that particular legislative body.

So, the worst case scenario is that everything goes to hell in New York this year: the court rules that out-of-state marriages can't be recognized until New York's legislature clearly signals that the state's public policy has changed and the NYS Senate sinks deeper into the morass of budget crisis and paralysis.

On the other hand … maybe the pendency of these two cases will jolt the Senate out of its perennial coma. If the Court of Appeals reverses the lower court decisions, there will be a fair number of New York couples stuck in a weird position very similar to that of the 18,000 in California: they were married where the marriage was lawful (probably most in Massachusetts) at a time when their state of residence (NY) recognized the marriage. But suddenly, their marriage is in legal limbo. This situation – or even the threat of it materializing – makes it urgent for the legislature to do something.

If that scenario plays out, yesterday's court's decision will have produced a very big silver lining for lgbt advocates and a pyrhhic victory for ADF.


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