Same-Sex Spousal Benefits

A number of foreign countries and four U.S. states allow same-sex couples to marry. New York is not among them. In Hernandez v. Robles, 7 N.Y.3d 338 (2006), the state's highest court, the New York Court of Appeals held that the Domestic Relations Law restricts marriage to opposite-sex couples and that such restriction does not violate the state constitution. Godfrey v. Spano, decided in November 2009, afforded the court an opportunity to resolve the question of whether same-sex marriages that are valid where performed are entitled to full legal recognition in New York under the marriage recognition rule. The majority side-stepped that issue and resolved the case on other grounds. The three concurring judges would have reached it, however, and decided in favor of recognition.

The Cases

The Alliance Defense Fund represented the plaintiff taxpayers in two actions. The first, Godfrey, challenged a Westchester County executive order directing the recognition of same-sex marriages lawfully performed out of state in the same manner that out-of-state opposite-sex marriages are recognized, for the purpose of extending health and other benefits to the spouses of employees. In doing so, Westchester County, NY, executive Andrew J. Spano cited a 2004 informal opinion letter of the attorney general stating that New York law “presumptively requires” the treatment of the parties to same-sex marriages as spouses, and a 2004 opinion letter from the comptroller providing that, under the principle of comity, the state retirement system would recognize a same-sex Canadian marriage in the same manner it would an opposite-sex New York marriage.

The second action, Lewis v. New York State Department of Civil Service, challenged a policy memorandum issued by the president of the State Civil Service Commission (Commission President) mandating recognition of parties to same-sex marriages that were performed legally be recognized as spouses for purposes of all health benefit plans.

In the Court of Appeals, the Godfrey plaintiffs pursued only their cause of action arising under General Municipal Law ' 51, which requires fraud or illegal dissipation of municipal funds. The plaintiffs did not allege that Mr. Spano engaged in fraud, and the court found their allegations of dissipation too conclusory to survive a motion to dismiss. Not only had the plaintiffs failed to identify any specific instance in which taxpayer funds were expended as a result of the executive order, but Mr. Spano submitted an affidavit of Westchester's commissioner of Finance stating that he could recall no instance in which Westchester had spent funds or extended benefits as a result of the order. The majority opinion for the court observed that this was not surprising because for years prior to the order, the county had provided benefits to the domestic partners and children of public employees in committed relationships, regardless of whether the partners were of the same or opposite sex.

The plaintiffs in Lewis abandoned all but two of their claims. They alleged that the defendants violated Section 123-b of the State Finance Law by unlawfully spending state funds. A claim under Section 123-b requires “some specific threat of an imminent expenditure.” Here, too, the claim failed due to a lack of specific allegations of expenditures made under the policy memorandum that would not otherwise have been made. The court noted that the Department of Civil Service has offered benefits to same-sex domestic partners since the mid-1990s.

The Lewis plaintiffs also asserted that the policy memorandum contravened Civil Service Law ' 161(1) and the Commission President, therefore, had acted inconsistently with the legislature's “pronouncements” of spousal benefits. The court interpreted this as a separation of powers argument. The cause of action was dismissed because both the language and legislative history of the statute indicate an intent to vest the Commission President with broad discretion to define “spouse” and “dependent children,” and to determine who will qualify for health benefits.

Finally, while noting that the narrow grounds of its decision made it unnecessary to reach defendants' marriage recognition rule arguments, the court (as it had in Hernandez) expressed the hope that the legislature would address the issues around same-sex marriage.

The Concurring Opinion

In the concurring opinion, the judges would have upheld the defendants' conduct based upon the marriage recognition rule because neither of two exceptions to the rule applied. The Legislature may expressly state an intent to void certain marriages legally entered into in another jurisdiction, but New York has not adopted a so-called “Defense of Marriage Act.”

The concurring judges also found inapplicable the narrow exception that denies recognition to marriages “abhorrent to New York public policy.” They looked to constitutional, statutory and decisional law, as well as prevailing public attitudes, to find a public policy of acceptance of same-sex life partners as family members. Significantly, the concurring opinion stated that the court should look to evolving, rather than historical, attitudes to assess the social and moral attitudes of the community.

Roy L. Reardon is a member and Mary Elizabeth McGarry is a partner in Simpson Thacher & Bartlett's Litigation Department. This article first ran in the New York Law Journal, an ALM sister publication of this newsletter.

A number of foreign countries and four U.S. states allow same-sex couples to marry. New York is not among them. In Hernandez v. Robles , 7 N.Y.3d 338 (2006), the state's highest court, the New York Court of Appeals held that the Domestic Relations Law restricts marriage to opposite-sex couples and that such restriction does not violate the state constitution. Godfrey v. Spano, decided in November 2009, afforded the court an opportunity to resolve the question of whether same-sex marriages that are valid where performed are entitled to full legal recognition in New York under the marriage recognition rule. The majority side-stepped that issue and resolved the case on other grounds. The three concurring judges would have reached it, however, and decided in favor of recognition.

The Cases

The Alliance Defense Fund represented the plaintiff taxpayers in two actions. The first, Godfrey, challenged a Westchester County executive order directing the recognition of same-sex marriages lawfully performed out of state in the same manner that out-of-state opposite-sex marriages are recognized, for the purpose of extending health and other benefits to the spouses of employees. In doing so, Westchester County, NY, executive Andrew J. Spano cited a 2004 informal opinion letter of the attorney general stating that New York law “presumptively requires” the treatment of the parties to same-sex marriages as spouses, and a 2004 opinion letter from the comptroller providing that, under the principle of comity, the state retirement system would recognize a same-sex Canadian marriage in the same manner it would an opposite-sex New York marriage.

The second action, Lewis v. New York State Department of Civil Service, challenged a policy memorandum issued by the president of the State Civil Service Commission (Commission President) mandating recognition of parties to same-sex marriages that were performed legally be recognized as spouses for purposes of all health benefit plans.

In the Court of Appeals, the Godfrey plaintiffs pursued only their cause of action arising under General Municipal Law ' 51, which requires fraud or illegal dissipation of municipal funds. The plaintiffs did not allege that Mr. Spano engaged in fraud, and the court found their allegations of dissipation too conclusory to survive a motion to dismiss. Not only had the plaintiffs failed to identify any specific instance in which taxpayer funds were expended as a result of the executive order, but Mr. Spano submitted an affidavit of Westchester's commissioner of Finance stating that he could recall no instance in which Westchester had spent funds or extended benefits as a result of the order. The majority opinion for the court observed that this was not surprising because for years prior to the order, the county had provided benefits to the domestic partners and children of public employees in committed relationships, regardless of whether the partners were of the same or opposite sex.

The plaintiffs in Lewis abandoned all but two of their claims. They alleged that the defendants violated Section 123-b of the State Finance Law by unlawfully spending state funds. A claim under Section 123-b requires “some specific threat of an imminent expenditure.” Here, too, the claim failed due to a lack of specific allegations of expenditures made under the policy memorandum that would not otherwise have been made. The court noted that the Department of Civil Service has offered benefits to same-sex domestic partners since the mid-1990s.

The Lewis plaintiffs also asserted that the policy memorandum contravened Civil Service Law ' 161(1) and the Commission President, therefore, had acted inconsistently with the legislature's “pronouncements” of spousal benefits. The court interpreted this as a separation of powers argument. The cause of action was dismissed because both the language and legislative history of the statute indicate an intent to vest the Commission President with broad discretion to define “spouse” and “dependent children,” and to determine who will qualify for health benefits.

Finally, while noting that the narrow grounds of its decision made it unnecessary to reach defendants' marriage recognition rule arguments, the court (as it had in Hernandez) expressed the hope that the legislature would address the issues around same-sex marriage.

The Concurring Opinion

In the concurring opinion, the judges would have upheld the defendants' conduct based upon the marriage recognition rule because neither of two exceptions to the rule applied. The Legislature may expressly state an intent to void certain marriages legally entered into in another jurisdiction, but New York has not adopted a so-called “Defense of Marriage Act.”

The concurring judges also found inapplicable the narrow exception that denies recognition to marriages “abhorrent to New York public policy.” They looked to constitutional, statutory and decisional law, as well as prevailing public attitudes, to find a public policy of acceptance of same-sex life partners as family members. Significantly, the concurring opinion stated that the court should look to evolving, rather than historical, attitudes to assess the social and moral attitudes of the community.

Roy L. Reardon is a member and Mary Elizabeth McGarry is a partner in Simpson Thacher & Bartlett's Litigation Department. This article first ran in the New York Law Journal, an ALM sister publication of this newsletter.