Gender & Sexuality Law Blog

The New York Court of Appeals ruled today that the Westchester County Executive and the New York State Department of Civil Service were within their legal powers when they issued orders requiring relevant public officials to

recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.

The Alliance Defense Fund of Scottsdale, Arizona, a conservative legal group opposed to marriage equality rights for same-sex couples, brought this lawsuit, finding local New York plaintiffs to challenge the recognition of out of state marriages of same-sex couples.

The legal issue here is called one of comity or reciprocity – the principle that one jurisdiction will extend certain courtesies to other states, particularly by recognizing the validity and effect of their executive, legislative, and judicial acts.  Except in some very narrow exceptions, New York has a well-settled marriage recognition rule, which “recognizes as valid a marriage considered valid in the place where celebrated.”

It is important to appreciate why this ruling is so important.  The New York Times portrays the Court’s decision as narrowly written and applied to a small number of people, but it’s meaning is more profound if read in light of what the Court was asked, and refused, to do.  Had the plaintiffs won the case, they could have done so (as the concurrence to today’s opinion points out) by analogizing out-of-state marriages of same-sex couples to incestuous marriages.  The Alliance Defense Fund argued that this case fell within an exception to the marriage recognition rule for matters of public policy, such as for incestuous marriages entered into in other states that allow such marriages.   The analogy – that marriages of same sex couples violates New York public policy just as incestuous marriages do – is not an unfamiliar one made by opponents of marriage equality rights for lesbian and gay couples, and is deeply offensive to the advocates of marriage equality for lesbian and gay people.

That the Court rejected the public policy argument here is significant.   The Court could have said that the matter is one for the legislature, not for the Court – as it did when it rejected the constitutional challenge to the exclusion of same-sex couples from legal marriage in Hernandez v. Robles in 2006.   This is an important point: To grant the plaintiffs’ public policy argument would be to hold that the New York State Legislature’s failure to pass a marriage equality bill amounted to a repudiation of marriages by same sex couples elsewhere, full stop.  But legislative inaction/silence cannot and should not be given such strong judgmental meaning.   The fact that the Court held in Hernandez that these marriages are not constitutionally required does not foreclose a range of executive and legislative action to incrementally recognize the spousal-like character of lesbian and gay relationships.

One last point: Sasha Samberg-Champion, the lawyer who represented the State in the case is an Assistant Solicitor General in the Office of the New York State Attorney General, and a 1985 graduate of Columbia Law School with whom I worked on his excellent Note: Sasha Samberg-Champion, How to Read Gonzaga: Laying the Seeds of a Coherent Section 1983 Jurisprudence, 103 Colum L Rev 1838, 1839 (2003).