Alliance Defense Fund Files Misguided Lawsuit Against Paterson Marriage Move

On June 3, the Alliance Defense Fund, an Arizona-based right-wing litigation organization, filed a lawsuit in Bronx County Supreme Court on behalf of five individual Republican New York State Senators, seeking an injunction against Governor David A. Paterson’s order that New York State government agencies extend recognition to marriages of same-sex couples contracted lawfully in other jurisdictions. At the same time, a spokesman for the Senate Republican conference, John C. McArdle, told the New York Times that it was unlikely that the Senate Republicans as a group would do anything, either legislatively or through the courts, to counter the governor’s move.

The lawsuit, charging that Governor Paterson exceeded his authority and violated the prerogatives of the legislature, totally misconceives the nature of marriage recognition as practiced under New York law, and basically asks the courts to order the governor not to comply with their own recent rulings.

On February 1, a unanimous five-judge panel of the New York State Appellate Division, Fourth Department, which is based in Buffalo, ruled in Martinez v. Monroe Community College that two women married in Canada were entitled to have their marriage recognized by Ms. Martinez’s employer, and that the college’s refusal to include her spouse under the employee benefits plan violated the New York Human Rights Law.

The conservative upstate court, whose judges were elected by voters in Western New York and four of whom were appointed to the Appellate Division by Governor George Pataki, concluded that the 2006 decision by New York’s highest court, Hernandez v. Robles, finding that the state constitution does not compel the state to issue marriage licenses to same-sex couples and that the existing gender-neutral marriage statute cannot be interpreted to authorize such marriages, did not address the issue of recognition of marriages contracted out-of-state.

The New York State legislature has not passed any law instructing either the executive branch or the courts how to deal with the question of marriage recognition. Instead, the process has evolved over the course of the state’s history through ad hoc decision-making by public officials confronted with the question whether to recognize particular out-of-state marriages for particular purposes, such as payment of benefits to a surviving spouse, for example, and the case-by-case decisions of courts faced with similar questions. Looking at this history, the Appellate Division found that New York State normally recognizes marriages that were valid in the place and at the time they were contracted, unless such recognition would be "abhorrent" to New York law. Past cases suggested that various kinds of marriages not authorized by New York statutes would nonetheless be recognized, including marriages of first cousins allowed in some other jurisdictions, marriages of younger people in states with lower ages of consent, and common law marriages.

The case of common law marriages is most instructive for this purpose. Before governments began to get into the business of licensing marriages, common law marriage was the norm for couples who did not desire a religious ceremony. Two people could set up housekeeping together, declare themselves to the community as married, and their relationship would be recognized by the state after a reasonable period of time. By the early twentieth century, most states had concluded that this informal arrangement was inadequate in light of the number of benefits and responsibilities that had been added to the status of marriage through federal and state laws. A "bright line" was needed to determine who was married, and the state wanted to impose some eligibility requirements for public health reasons, so New York, in common with most other states, legislatively abolished common law marriage in the state. Some other states, however, retained common law marriage, and New York courts had to rule about whether those marriages were recognized when questions arose about couples who had relocated to New York or owned property here. Despite the legislative ban on forming common law marriages in New York, the state courts recognized them if they complied with the law of the state where the couple previously resided, even though they lacked the license and formality of New York law.

This provided a clear precedent for the Appellate Division, which additionally noted that same-sex marriages would not be found "abhorrent," considering that New York had already gone a long way toward recognizing family status of same-sex partners, from the Court of Appeals’ historic Braschi decision in 1987, protecting surviving same-sex partners from eviction from rent-controlled apartments, the many municipal domestic partnership laws in the state, the adoption of domestic partnership benefits for state employees, and the State Assembly’s recent passage of a bill allowing same-sex couples to marry. One could hardly label as "abhorrent" a concept that had recently been embraced by one house of the legislature. And, unlike most other states, New York has not reacted to the controversy over same-sex marriage by passing a state-level "Defense of Marriage Act" prohibiting the recognition of same-sex marriages in the state.

The Appellate Division’s ruling set a precedent for trial courts throughout the state. A few weeks later, on February 25, a trial judge in Manhattan ruled in Beth R. v. Donna M. that a same-sex couple married in Canada could get a divorce in New York, because their marriage would be recognized here, following the Martinez precedent. The next week, on March 3, another state trial judge, this time in Albany, rejected a lawsuit by the Alliance Defense Fund against the state Civil Service Department, which had challenged the State Comptroller’s decision to recognize out-of-state same-sex marriages for purposes of administering the employee benefits program for state employees.

Not long after that, on March 25, the Second Department of the Appellate Division, based in Brooklyn, vacated a ruling refusing to recognize a Canadian same-sex marriage by a Nassau County trial judge. Duke Funderburke, a retired public school teacher, was suing to get his husband onto the health plan offered to retirees and their spouses. Although that case was settled by the parties when the Comptroller decided that the state would recognize same-sex marriages for benefits purposes, and no further court ruling was required, the 2^nd Department panel unanimously granted a motion by Funderburke’s lawyers to vacate the trial court’s decision, citing the Martinez case. This was a significant development, because the 4^th Department ruling, while a controlling precedent for trial courts statewide, does not control the other Appellate Departments, which are free to disagree.

Thus, in the short space of two months, there were already four cases where the courts were lined up to recognize same-sex marriages contracted elsewhere by New Yorkers.

Governor Paterson’s legal counsel, David Nocenti, advised the governor of these developments and recommended that in light of this rapidly expanding body of judicial decisions, it was prudent to get out in front of the issue and get all the state executive agencies on the same page, to avoid unnecessary and unproductive litigation. While technically the governor might have waited for a definitive ruling by the New York Court of Appeals, that was not likely to come for some time. The Court of Appeals quickly rejected Monroe County’s premature attempt to appeal the Martinez decision before the trial judge had entered a final order in the case, and events were moving fast to make the question of New York’s position on marriage recognition urgent, because the California and Connecticut Supreme Courts were poised to rule in same-sex marriage cases, and neither jurisdiction has a residency requirement for marriage licenses. The small trickle of same-sex couples marrying in Canada could be expected to grow substantially if same-sex couples could marry without going outside the country.

The governor was actually proceeding cautiously, authorizing the internal distribution of Nocenti’s memo to state agencies on May 14, weeks before a California decision was expected. If the California court ruled, as expected, early in June, then New York state agencies might have to be ready to respond to same-sex couples married in California by early July, thus the June 30 deadline set by Nocenti’s memo.

Although same-sex couples living in neighboring Massachusetts can marry there, a 1913 statute prevents New Yorkers from taking advantage of that, because it prohibits issuing licenses to non-resident couples who could not marry in their own state. The Massachusetts legislature has begun the process of repealing that statute, which would add to the urgency of New York government offices having a uniform approach to marriage recognition, even if the Connecticut Supreme Court rules against the plaintiffs.

Nocenti’s memo directed state agencies to determine what would need to be changed in their rules and regulations in order to recognize same-sex marriages contracted out of state, and to report back on the steps they were taking by June 30, so things would be in order when the anticipated California ruling – if affirmative on same-sex marriage – went into effect. Everything was internal, nothing public, and possibly the governor, a consultative type of guy, was planning to discuss the issue with legislative leaders before going public, but such consultation is not required by state law for the making of an executive decision on this question.

Then the California Supreme Court surprised everybody by issuing its marriage decision several weeks before its own state constitutional 90 day deadline, on May 15, and suddenly the possibility of large numbers of New York couples getting married in California by mid-June, when the court’s decision was expected to take effect, made the question even more pressing.

As the marriage issue dominated public consciousness in the wake of the California ruling, somebody leaked the Nocenti memo to the press, the governor’s office confirmed its authenticity, and the story went public sooner than anticipated, before consultation had taken place. This led to charges that the governor was improperly taking some sort of unilateral action in response to the California case. Republican State Senate Majority Leader Joseph Bruno rattled his sword and said his staff was looking into taking legal action. The Alliance Defense Fund, stalwart opponents of same-sex marriage, announced they would file suit against the governor.

But what was the governor actually doing? He was obeying his oath of office, to uphold the constitution and laws of the state of New York, and acting as a prudent chief executive, managing the affairs of the executive branch of the state government.

Having been advised, accurately, that the state courts were consistently ruling that these marriages had to be recognized, noting that the Assembly has passed a bill supporting same-sex marriage, making it very unlikely that any legislation opposed to recognizing same-sex marriages would be passed by the legislature, the governor took the logical step of a prudent executive and moved to get state agencies subject to his direction prepared to deal in a consistent way with the marriage recognition issue that was already arising all across the state due to Canadian marriages and would soon be more pressing due to California and, possibly, Connecticut and Massachusetts marriages.

What are the chances that the Alliance Defense Fund’s lawsuit will succeed in countermanding the governor’s order? The Martinez decision is a binding precedent on the trial courts, so no trial judge in the state should rule against the governor on this. One has to question why the suit was filed in the Bronx, when the defendant’s official residence is in Albany? Perhaps, thinking strategically, ADF was trying to avoid a county where a trial court has already ruled on the issue, and to steer the question to the First Department of the Appellate Division, which despite its Manhattan location had been "packed" by Governor Pataki with conservative judges elected up-state, a condition that Elliott Spitzer had barely begun to correct when he resigned several months ago. Ultimately, however, the question must be decided by the Court of Appeals, since the governor would promptly appeal any injunction issued against him by a lower court.

On the merits, however, it seems unlikely that the unanimous view of the 4^th Department panel and the implicit concurrence of a 2^nd Department panel will be rejected by the Court of Appeals. Since the legislature has not spoken on the issue, it falls to the governor and the courts to decide whether to recognize same-sex marriages, an exercise in discretion and judgment that is unlikely to be reversed unless the highest court is prepared to sharply alter its existing precedents on marriage recognition, a possibility but not a probability. In the Hernandez case, the court indicated that although same-sex couples were not entitled to marry in New York, neither did the constitution prohibit them from marrying, the only question being whether the existing marriage law’s failure to open up marriage to same-sex couples was forbidden. This was not a ruling that same-sex marriage is "abhorrent," merely that state officials have not been legislatively authorized to issue licenses for the performance of marriages by same-sex couples within the state.

Was the governor guilty of violating "separation of powers?" Definitely not. Executive branch officials frequently decide on an ad hoc basis whether to recognize marriages contracted out-of-state by foreign immigrants, tourists, people who are here to do business, or those who move here from other states. Such decisions have been made in the course of routine administration of state laws since the founding of the state without any instruction by the legislature, and they have frequently involved recognizing marriages that could not have been contracted here. The governor was merely moving that process forward to avoid having inconsistent ad hoc decisions made on this issue when New Yorkers return from Canada or California or other places seeking recognition of their same-sex marriages. While it is unusual for the chief executive to interject himself into what has been a routine function of the departments under his control, it does not involve crossing any separation of powers lines and is sensible in light of the developing situation..

This could be a legislative decision, if the legislature were actually to take it up, debate it, and pass a bill, but they have not done so, and show no inclination to do so now. By default, the front-line decision-makers on marriage recognition are in the executive and judicial branches. That is how it has always worked in New York State.

References to New York marriage recognition rulings:

Martinez v. County of Monroe, 850 N.Y.S.2d 740 (4^th Dept. February 1, 2008)

Beth R. v. Donna M., 19 Misc.2d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip Op. 28091 (N.Y. Co., Feb. 25, 2008)

Lewis v. New York State Department of Civil Service, No. 4078–07, NYLJ, 3/18/08, p. 28, col. 1 (March 3, 2008)

Funderburke v. New York State Department of Civil Service, 49 A.D.3d 809, 854 N.Y.S.2d 466, 2008 N.Y. Slip Op. 02789 (2nd Dept. March 25, 2008)

Comments

[Chairm]

And yet these are not marriages no matter where they have been licensed.

The state of NY does not need an executive decision in this matter.

You are wrong, Leonard but you are also pro-SSM so you won't be convinced because all means are justified by the end you desire to see imposed on society.

Is that not true?

[Art Leonard]

Oh, but they are marriages - civil marriages. So long as the state recognizes an institution called "marriage," the state may define that institution. Every religious body is free to define marriage however it likes, but for purposes of civil government in a country whose constitution bans the establishment of religion, the state is not bound by any religiously-inspired definition for any of its civil institutions.

These are marriages if the government says they are.

[Art Leonard]

And another thing - of course I'm pro-SSM. My partner and I have been together for 28 years and jointly own the apartment in which we live, but if either of us were killed through the negligence of others, the survivor would not be able to bring a wrongful death suit in NY, even though each of us depends on the contributions of the other to pay the monthly carrying expenses of our apartment. Indeed, although we have been together longer as a couple than either of my heterosexual brothers has been with their many wives, in New York State we are legal strangers to each other and not entitled to any of the benefits that go with marriage. Of course I think society should extend the same rights and impose the same responsibilities on my relationship with the man I love....