Westchester Marriage Recognition Order Upheld by Judicial Sleight-of-Hand

A unanimous four-judge panel of the New York Appellate Division for the 2^nd Department issued a brief decision on December 30, rejecting a challenge to the same-sex marriage recognition order that Westchester County Executive Andrew J. Spano issued on June 6, 2006. The panel managed, through judicial sleight-of-hand, to affirm a trial judge’s dismissal of the case without taking any position on whether New York law requires recognition of same-sex marriages.  Godfrey v. Spano, 2008 N.Y. Slip Op. 10584, 2008 Westlaw 5413641.

In his Executive Order No. 3 of 2006, Spano directed all the departments, boards, agencies and commissions of government in Westchester County "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 plaintiffs, taxpayers provided counsel by Alliance Defense Fund, argued that the order was illegal and beyond the powers of the County Executive. Lambda Legal intervened in the case on behalf of spouses Michael Sabatino and Robert Voorheis, who had been married out of state and reside in Westchester County, and thus stood to benefit from the Order and to suffer harm if it was overturned.

On April 16, 2007, Westchester County Supreme Court Justice Joan B. Lefkowitz rejected the challenge to the Executive Order, in a detailed, substantive opinion concluding that New York marriage recognition principles supported the recognition of lawfully contracted out-of-state same sex marriages, because the recognized grounds for refusing such recognition did not exist. See 836 N.Y.S.2d 813. Justice Lefkowitz’s analysis was later vindicated when an appellate panel in Western New York endorsed the same reasoning early in 2008 in Martinez v. Monroe Community College, 50 App.Div.3d 189 (4th Dept. 2008), a case involving the college’s refusal to recognize the Canadian same-sex marriage of one of its employees. Monroe County’s premature attempt to appeal that ruling was rejected by the Court of Appeals.

The Westchester County plaintiffs appealed the dismissal of their case, raising the same arguments, this time in the face of mounting authority from cases around the state endorsing marriage recognition.

The 2^nd Department decision issued on December 30 ducks the analytical issue by focusing on the last seven words of Spano’s Executive Order: "to the maximum extent allowed by law." The panel reasoned that Spano’s Order could not be illegal because the Order, "by its terms," "can never require recognition of such a marriage where it would be outside the law to do so." Because the County Executive’s job is to "see that the laws of the state, pertaining to the affairs and government of the county, are executed and enforced within the County," it was clearly legal for him to order all units of county government to recognize same sex marriages "to the maximum extent allowed by law."

In other words, the panel treated Spano’s opinion as if it was agnostic on the question whether New York law requires recognition of such marriages, and was merely exhorting the agencies under his control to do their duty and apply the law. According to this reading, the only substantive position Spano was taking was that same-sex marriages should be treated the same as different-sex marriages to the maximum extent possible under existing law.

Having rested its ruling on this sleight of hand, the panel refrained from delving into the details of New York marriage recognition law, merely asserting that an Order by the County Executive that agencies comply with the law was clearly legal. This, of course, disingenuously speaks as if Spano had broken no new ground, while in fact his clear intent was to adopt a particular, possibly controversial, point of view as to what the law is. But no damage is really done, since the panel’s avoidance of the substantive issue means that the law remains what it was, as articulated by the 4^th Department in the Martinez case. This decision does not create a split between the appellate divisions, so Martinez remains a statewide precedent for now.

The panel also held, without any real explanation and contrary to Justice Lefkowitz, that the plaintiffs had no standing to invoke the Municipal Home Rule Law to argue that the Order was beyond Spano’s power to issue, because they had not shown "some personal interest in the dispute beyond that of any taxpayer." Totally lacking an analysis, the panel just asserted: "They have not done so."

Consequently, the panel affirmed Justice Lefkowitz’s order dismissing the case, without itself appearing to take any substantive position on the underlying legal question of marriage recognition!