New York Appellate Court Orders Recognition of Canadian Same-Sex Marriage

In a straightforward and matter-of-fact ruling of great potential significance, a unanimous five-judge panel of the New York Appellate Division, 4^th Department, an intermediate appellate court with jurisdiction of appeals from the western counties of New York State, ruled on February 1 that a lesbian couple who married in Canada in 2004 were entitled to legal recognition of that marriage by the employer of one of them, Monroe Community College (MCC).  Martinez v. Monroe County, 2008 Westlaw 275138, 2008 N.Y. Slip Op. 00909.  [The opinion was published in full text in the New York Law Journal on February 8, 2008.  According to a press release received on February 22, the County Executive has announced an appeal to the New York Court of Appeals.]

Plaintiff Patricia Martinez, an employee of MCC, and her partner, Lisa Ann Golden, were married on July 5, 2004, in the Province of Ontario, Canada, after the courts of that province determined that same-sex couples are entitled to marry. (The Canadian legislature passed a statute ratifying those decisions in 2005.)

Upon returning home, Martinez applied to MCC on July 7 for spousal health care benefits for Golden, and was turned down a few months later. It was not until 2006 that MCC extended benefits to Golden pursuant to a domestic partnership benefits plan. MCC still does not formally recognize the two women as married.

Martinez sued, claiming that failure to recognize her marriage violated the New York State Constitution’s equal protection requirement and the state Human Rights Law’s prohibition of sexual orientation discrimination in employment. Justice Harold L. Galloway of State Supreme Court in Monroe County granted the defendants’ motion for summary judgment, finding that the marriage was not entitled to recognition in New York State.

Writing for the unanimous panel, Justice Erin Peradotto explained, "For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the ‘positive law’ of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of ‘natural law.’ . . . Thus, if a marriage is valid in the place where it was entered, ‘it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute," citing Moore v. Hegeman, a New York Court of Appeals decision.

"We conclude that plaintiff’s marriage does not fall within either of the two exceptions to the marriage recognition rule," wrote Peradotto, pointing out that the New York legislature has not enacted any statute specifically forbidding the recognition of same-sex marriages performed elsewhere and thus the "positive law" exception does not apply.

"The natural law exception also is not applicable," wrote Peradotto. "That exception has generally been limited to marriages involving polygamy or incest or marriages ‘offensive to the public sense of morality to a degree regarded generally with abhorrence,’ and that cannot be said here." Actually, this matter-of-fact assertion may prove astonishing to those who argue against same-sex marriage on grounds of traditional religiously-based morality, but the court says nothing more directly on the point.

Instead, Peradotto takes on the other main stumbling block, the Court of Appeals’ 2006 decision in Hernandez v. Robles, which held that same-sex couples do not have a right to marry either by interpretation of the state’s Domestic Relations Law or pursuant to due process or equal protection rights under the state constitution.

Peradotto wrote that the Appellate Division panel rejected the contention that Hernandez provides a public policy basis for refusing to recognize a same-sex marriage contracted validly in another jurisdiction. "Hernandez does not articulate the public policy for which it is cited by defendants," she wrote, "but instead holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York. The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages 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, to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state."

Peradotto noted that the legislature could move to prohibit recognition of such marriages, but until it does so, "such marriages are entitled to recognition in New York."

Moving to the next point in the case, Peradotto briefly stated the conclusion that because MCC would recognize a Canadian different-sex marriage but not a Canadian same-sex marriage, its policy violated the ban on sexual orientation discrimination in the Human Rights Law.

MCC argued that since it had begun providing benefits to domestic partners in 2006, the case was actually moot, but the court pointed out that Martinez and Golden were entitled to compensation for any injury incurred during 2004 and 2005 due to MCC’s failure to recognize their marriage. The court rejected the further argument that MCC should be held to enjoy governmental immunity from such a damage claim on the ground that denying recognition to the marriage was a "discretionary act." To the contrary, wrote Peradotto, it "instead was an erroneous legal determination with respect to the ministerial action that was required."

The court directed that the trial court issue an order declaring that the Martinez-Golden marriage is "entitled to recognition in New York."  [Revision added February 5:] According to New York state court principles of stare decisis, this 4th Department ruling has statewide effect for now, since there is no contradictory ruling from any other Department of the Appellate Division.  However, appeals on the same question are pending in the 2nd and 3rd Departments, and if they produce contrary results, the stage will be set for the Court of Appeals to create a finally binding statewide precedent.

Martinez is represented in the case by Rochester attorney Jeffrey Wicks, acting as a cooperating attorney for the New York Civil Liberties Union. New York State Attorney General Andrew Cuomo filed an amicus brief in support of Martinez’s claim for recognition of her marriage, consistent with the opinion of his office, first expressed under his predecessor, now-Governor Eliot Spitzer, that New York marriage recognition principles would extend to same-sex marriages lawfully contracted elsewhere.

Comments

[Art Leonard]

On May 6, the Court of Appeals turned back Monroe County's attempt to appeal this decision as premature. Since the trial court on remand has not yet issued a final order incorporating a damage award, there is no final judgment for the court to review. (Note - when the denial of review was first announced, some gay rights groups jumped the gun and claimed that the court had "affirmed" the lower court's decision. This was speedily corrected by a blog posting by the clerk of the court, pointing out that the court had declined review on jurisdictional grounds. They will only review a final order.

[Stephen Clark]

A conflict-of-laws critique of the Martinez decision is available at Same-Sex Unions in the Conflict of Laws, http://www.samesexconflicts.com/blog/2008/2/2/ny-court-recognizes-canadian-marriage.html