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LJN NewslettersNewsSectionsThe Matrimonial Strategist

Same-Sex Spousal Benefits

BY Roy L. Reardon
February 25, 2010

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.

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