NY Court of Appeals hears challenge to recognition of out-of-state s/s marriages

by on October 13, 2009  •  In Marriage

New York's highest court heard arguments today in two cases raising the question of whether marriages involving same-sex couples must be recognized by the state if they were legal where and when performed. Following are excerpts from the NY Times report:

…The cases … concern relatively narrow executive and administrative orders in recent years that extended benefits like health insurance to same-sex spouses of government employees who married in jurisdictions where such marriages are legal, and, in one county, required local officials to treat same-sex couples as married. But a broad enough ruling by the Court of Appeals could force businesses and local governments in the state to recognize out-of-state marriages between same-sex couples, effectively legalizing the unions of thousands of New Yorkers who were married in Vermont, Iowa, parts of Canada and other places where same-sex marriage is legal.

In one of the cases, opponents of same-sex marriage are challenging a 2007 policy, adopted by the State Department of Civil Service, that extended health insurance benefits to the same-sex partners of state and local government employees who married in states that allow such marriages. In the other case, opponents are seeking to overturn an administrative order issued in 2006 by Andrew J. Spano, the Westchester County executive, directing county officials to recognize same-sex unions performed elsewhere.

The plaintiffs in both cases are being represented by the Alliance Defense Fund, a conservative legal-advocacy group based in Scottsdale, Ariz., whose lawyers have argued that state officials and Mr. Spano exceeded their authority. Lower courts have sided with state and local officials in the two cases.

The fund is also coordinating the legal fight against a much broader executive order on gay unions that Gov. David A. Paterson issued in 2008. It required all state agencies to revise their policies and regulations to recognize gay couples legally married out of state. While the legal challenge to Mr. Paterson’s order has not yet reached the Court of Appeals, questioning by the court’s judges during arguments in the two narrower cases raised the possibility that they might leapfrog to the larger question raised in all three cases: whether New York must recognize same-sex marriages performed elsewhere, even though such unions are not allowed in the state.

“I guess what I’m struggling with is, the marriage-recognition rule would not be unique to state government,” said Judge Victoria A. Graffeo, referring to the legal doctrine under which most marriages legally performed in one state are generally recognized in other states. “That would also apply to the private sector, then, if our court indicates that the marriage-recognition rule requires the recognition of these marriages.”…


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