Judge Upholds Out-of-State Gay Unions

Citing “but a few” of the protections the state affords to same-sex couples, including permitting the adoption of a partner's biological child and access to a partner's credit union services, the judge concluded that such “expressions of public policy are ' 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 intent.

Noeleen Walder is state court reporter for the New York Law Journal, a sister publication of this newsletter in which this article first appeared.

A Bronx judge has upheld Gov. David Paterson's order that state executive-branch agencies recognize same-sex marriages solemnized outside of New York. Acting Supreme Court Justice Lucy Billings held in Golden v. Paterson, 260148/08, that the governor's May 2008 directive neither “encroach[ed]” on the power of the state Legislature to regulate marriage, nor conflicted with the New York Court of Appeal's holding in Hernandez v. Robles, 7 NY3d, 338, 356 (2006), which held that the state Constitution “does not compel recognition of marriages between members of the same-sex.”

“[W]hen 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 ' to carry on that commitment, nothing is more antithetical to family stability than requiring them to abandon their solemnized commitment,” she wrote in dismissing a suit filed on behalf of several taxpayers.

Litigants React

Jim Campbell, litigation counsel with the Arizona-based Alliance Defense Fund, a self-described “legal ministry” that represented the taxpayers, said the group plans to appeal.

“We feel that the trial court's decision is incorrect, and we believe that the governor has in fact usurped his authority by overriding the people's decision to define marriage in New York as the union of one man and one woman,” Campbell said.

Susan Sommer, senior counsel for Lambda Legal, which represented Peri Rainbow and Tamela Sloan, two women married in Canada who intervened in the suit, said this was the fourth case in a row that the fund has brought against New York government officials who have “followed the law and given respect” to marriages of same-sex couples performed out of state. The courts threw out the previous three cases, which came prior to the governor's directive, she added. “This case just confirms what many other courts statewide have held [that] New York law requires recognizing out of state marriages of same-sex couples,” Sommer said in an interview.

Background

On May 14, 2008, Paterson's then-counsel David Nocenti sent a memo advising state agencies that failure to extend “comity or full faith and credit to same-sex marriages that are legally performed in other jurisdictions” could subject them to liability. The directive came in the wake of the Appellate Division, Fourth Department's ruling in Martinez v. County of Monroe , 50 AD3d 189 (2008), which held that a Rochester community college must provide health benefits to an employee's same-sex spouse. The couple was married in Canada.

In June, a group of state taxpayers filed an amended Article 78 petition to permanently enjoin the directive's enforcement. They maintained that the directive qualified as a “wrongful expenditure or illegal disbursement of state funds,” and violated the separation of powers guaranteed by the state Constitution.

Paterson moved to dismiss the group's amended petition.

Rainbow and Sloan also sought to dismiss the suit. The couple, according to Lambda Legal, is raising an adopted special needs child and relies on the protections stemming from their marriage.

Taxpayer Claim Challenges Marriage Recognition

To bring a claim under New York State Finance Law '123-b, which permits a taxpayer to initiate an action against a state officer or employee who causes a “wrongful expenditure” or other “illegal or unconstitutional disbursement of state funds,” a taxpayer must show that their claims have a “close enough nexus to state fiscal activities,” Justice Billings wrote in granting the motion to dismiss. This requires demonstrating that the “challenge to expenditures is but a pretense for a challenge” to a governmental decision, which “inevitably” has fiscal implications. “Without tracing the Directive to specific disbursements of state funds, petitioners fail to demonstrate that linkage essential to standing,” she added. However, while “petitioners' standing may be tenuous,” since the governor's action will inevitably lead to a disbursement of state funds in the “immediate future,” Justice Billings concluded that the “parties and the public are best served by a decision on the merits.”

Rejecting the taxpayers' contention that the directive violated the separation of powers guaranteed by the Constitution, the judge noted that the directive, rather than “usurp[ing]” the Legislature's power, simply fills in the gaps to make agency regulations “ consistent” with pre-existing policy decisions.

She also rejected the taxpayers' contention that the directive conflicts with the state's Domestic Relations Law, which Hernandez held limits marriage to a union between a man and woman. “The Directive implements not the Domestic Relations Law, but New York's marriage recognition rule,” which judges the validity of a marriage entered into outside of the state “based on that jurisdiction's law,” Justice Billings wrote.

Citing “but a few” of the protections the state affords to same-sex couples, including permitting the adoption of a partner's biological child and access to a partner's credit union services, the judge concluded that such “expressions of public policy are ' 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 intent.

Noeleen Walder is state court reporter for the New York Law Journal, a sister publication of this newsletter in which this article first appeared.