New York Court Rejects Challenge to Governor’s Marriage Recognition Directive

Bronx Supreme Court Justice Lucy Billings has rejected a legal challenge to Governor David Paterson’s directive that state agencies recognize same-sex marriages that were contracted outside of New York State.  Her September 2 ruling, giving controlling effect to an upstate appellate ruling from last winter in Monroe County, concluded that the governor’s directive is “consistent with New York’s common law, statutory law, and constitutional separation of powers regarding recognition of marriages legally solemnized outside New York.”

Because the lawsuit was brought by the Alliance Defense Fund, a right-wing litigation group that specializes in attacking any laws or policies that they see as part of the “homosexual agenda,” it is likely that this ruling will be promptly appealed to the Appellate Division, First Department, which has not yet ruled directly on this question.  However, Justice Billings cited prior First Department decisions as being consistent with the approach she took to the case.

The litigation was sparked by the governor’s action last spring in response to the upstate ruling.  Concluding that refusal by any state agency to recognize same-sex marriages from Canada or Massachusetts might subject the state to legal liability, the governor authorized his legal counsel, just one day before the California Supreme Court ruled on its marriage case, to send a memorandum to all state agencies, essentially directing them to extend such recognition.   The governor, who supported same-sex marriage proposals as a legislator and has advocated the passage of pending legislation to allow same-sex marriages to be performed in the state, has vowed to sign the current measure, which has passed the Assembly, if it achieves passage in the Senate.  Such enactment would make the question of recognizing out-of-state marriages academic.

A large portion of Justice Billings’ opinion concerns whether the petitioners, nominally a group of Republican state legislators and taxpayers, could even bring the lawsuit.  A state law authorizes taxpayers to bring suit “against an officer or employee of the state about to cause a wrongful expenditure of state funds.”  The petitioners argued that the governor’s directive to state agencies would result in expenditures from the state treasury, which, according to them, would violate state law.  They relied heavily on a 2006 decision by the state’s highest court,  Hernandez v. Robles, holding that the state’s marriage law does not allow same-sex couples to marry and that this prohibition does not violate the state constitution.

Billings found that petitioner’s standing was “tenuous.”  She also noted the state’s argument that the petitioners in this case were seeking to re-litigate a question that has now been decided against various state and local governmental bodies in several different courts, which might bar its further litigation under a legal doctrine called “collateral estoppel.”  But she concluded that because the prior lawsuits all involved particular programs while this one involved a general directive to the entire state government, it was arguably sufficiently different from the prior cases to allow for a decision on the merits.  The opinion also reflected her sense that because the issues in this case “are fundamental and of public significance, a strict test for standing may yield to an adjudication of the constitutional and institutional issues.”

However, in turning to those issues, Justice Billings found no merit whatsoever to the petitioners’ challenge.  They were arguing that under the principle of “separation of powers” by which policy-making is left to the legislature, the governor lacked the authority to adopt a new policy of recognizing same-sex marriages.  Billings pointed out that separation of powers is not absolute, and that the governor engages in much policy-making.  “Only when an executive branch’s action conflicts with the Legislature’s action or usurps its prerogative, does the executive branch violate the separation of powers doctrine,” she asserted.

Billings found Paterson’s directive to be “entirely consistent with this doctrine’s principles,” emphasizing that Paterson’s directive instructed the agencies that “where any state statute or controlling court decision construing a state statute already defines terms such as ‘spouse,’ ‘husband,’ and ‘wife,’ a state agency may not interpret the statute, promulgate or interpret a regulation, or enforce a policy that defines such terms inconsistently with that binding definition.”  What this means, of course, is that Paterson acknowledges in the directive the possibility that recognition of same-sex marriages performed elsewhere may not be complete in New York State, to the extent that there are specific statutes that expressly limit such recognition to different-sex couples.  However, it is likely that there are few of those, since most of the statutes governing benefits, rights and responsibilities related to marriage predate the current same-sex marriage debates so that they omit any such definitions, on the assumption that only different-sex marriages would exist.

This comes back to another of the Alliance Defense Fund’s arguments, picking up on the Court of Appeals’ ruling in Hernandez concerning the scope of the existing marriage law.  When that law was passed, the legislature could not have contemplated same-sex marriage, so the court construed the law as authorizing only different-sex marriages.  ADF argued that the same approach should be taken to the state’s venerable marriage recognition rule, which should be construed not to extend to same-sex marriages because the origins of the rule predate the current era.

Billings pointed out that there are big differences between interpreting statutes and applying “common law,” the judge-made doctrine that evolves over time in response to societal change in those areas of the law not governed by statutes.  While the Domestic Relations Law that the court interpreted in Hernandez was enacted by the legislature at a specific time, and so according to accepted principles of statutory interpretation, is supposed to be given the meaning intended by the legislature that enacted it, the state’s marriage recognition rule is a “common law” rule that the courts are free to develop in the context of social change, not bound by any earlier understanding of the meaning of marriage.  Now that same-sex marriages can be contracted in at least two states and Canada (in this hemisphere), as well as several countries in the Eastern Hemisphere, the question of recognizing extraterritorial same-sex marriages is real, and it is not plausible to argue that the word “marriage” can only have its older meaning.

Billings quickly disposed of the central question, which has already been frequently addressed by New York trial courts over the past few years, of whether New York’s common law marriage recognition rule should be construed to recognize same-sex marriages, and not surprisingly reached the same result as the other courts.  She found that the legislature has not exercised its prerogative to ban recognition of same-sex marriages.  In fact, to the contrary, the Assembly recently approved a bill to allow such marriages.  Thus, recognizing such marriages would not violate a legislatively adopted policy.  And she noted that the “adverse” decisions cited by ADF related to civil unions and domestic partnerships, not marriages, and were thus not relevant.

The other main exception to recognition of marriages is where the marriage is “abhorrent to public morality,” a category that courts have generally limited to incestuous and polygamous marriages.  Billings found that the degree of recognition already accorded to same-sex couples under New York law, together with the recent Assembly bill and the dissenting opinion in the Hernandez case, support the conclusion that the very idea of marriages involving same-sex partners cannot be labeled “abhorrent to public morality” in New York.  Indeed, she wrote, “The very fabric of New York’s laws and other expressions of policy, reflecting community attitudes, negates the second exception’s applicability to same sex marriages as abhorrent to public policy.”

Billings found that the long list of existing policies extending recognition to same sex partners is “only consistent with a tradition of affording equal rights to all New Yorkers, a tradition not to be abandoned lightly, without an unmistakable expression of legislative purpose.”

“Furthermore,” she insisted, “when partners manifest the commitment to their relationship and family, by solemnizing that commitment elsewhere, through one of life’s most significant events, and come to New York, whether returning home or setting down roots, to carry on that commitment, nothing is more antithetical to family stability than requiring them to abandon that solemnized commitment.  It is both a personal expression of emotional devotion, support, and interdependence and a public commitment. . .  The emotional, familial, financial, and legal stability that accompanies marriage establishes a strong presumption in favor of the marriage’s continued validity.”

Billings concluded, contrary to the petitioners, that striking down Paterson’s directive would be the “policy change” here, in light of how far the state has gone to recognize same-sex partners, and that application of the common law marriage rule mandates that the out-of-state marriages be recognized here.

Billings had granted a motion by a married same-sex couple, Peri Rainbow and Tamela Sloan, represented by Lambda Legal, to join the case.  They argued that failure to recognize their marriage would violate the state’s equal protection requirement as well as the Human Rights Law’s ban on sexual orientation discrimination.   Billings found it unnecessary to decide this issue, noting that the governor’s action in directing marriage recognition had clearly referenced the upstate ruling, which had ordered Monroe Community College not only to recognize a same-sex marriage, but also to comply with the Human Rights Law by extending benefits to its employee’s same-sex spouse.  So that base is already covered.