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Religious Tolerance logo

Same-sex marriage (SSM) in New York

Activity during 2008

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2008-FEB-01: Court rules that SSMs to be partly recognized: reported:

"... the Appellate Division of State Supreme Court of New York ... declared that same-sex 'marriages' recognized as legal in other countries must be considered valid in the state for purposes of employee benefits."

In common with other fundamentalist web sites, LifeSiteNews places quotation marks around "marriage" when they refer to same-sex marriages. This emphasizes their belief that such marriages are not really valid or meaningful.

Patricia Martinez and Lisa Golden are a loving, committed couple in a long-term relationship. They went to Canada in 2004 to be married. Martinez worked for Monroe Community College in Rochester, NY. The school refused to extend health benefits to her spouse, so she sued the College in order to obtain the same benefits as all other married employees automatically received. They lost at the trial court and subsequently appealed.

On 2008-FEB-01, the appeals court simply applied a century-old common law that requires marriages contracted outside of New York state must be recognized by the state, even if the couple could not marry in New York. This law reflects the situation in the 19th century when many states did not allow committed, loving mixed-race couples to marry. Some couples came to New York to be married because of the racial bigotry in their home states.

The court ruled unanimously (5 to 0) that:

"The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad. Until it does so, however, such marriages are entitled to recognition in New York."

James Esseks, Litigation Director of the Lesbian Gay Bisexual and Transgender Project of the New York Civil Liberties Union (NYCLU) said:

"... there is still lots of work to be done here. It's now up to the state legislature to finish the job it started last year and pass the marriage bill so that lesbian and gay New Yorkers won't have to leave the state to celebrate their commitments." stated:

"The ruling may create a conflict with a previous decision from the New York Court of Appeals that ruled in 2006 that homosexual couples have no right to be issued marriage licenses by local officials, framing the issue as a matter of the state Constitution. At that time, Justice Smith wrote for the Court, 'We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the legislature'." 1

The New York Times stated:

"In a decision at once common-sensical and profound, a New York State appeals court ruled Friday that same-sex marriages validly performed in other jurisdictions are entitled to recognition in New York. It was common sense because it simply accorded same-sex marriages the same legal status as other marriages. It was profound because of the way it could transform the lives of gay people. ... the ruling marks important progress toward changing laws and attitudes that deprive gay people of equal rights and deny the dignity of New York's many gay families. They should be able to live, marry and raise children with the same respect and the same rights as anyone else." 2

There will now probably be a rush by loving, committed same-sex couples resident in New York state to Canada and to Massachusetts in order to be married. 3

The New York Civil Liberties Union later acknowledged that they had brought the case forward in order to move towards legalizing same-sex marriages within the state. 4

The case was appealed to the New York Court of Appeals which declined to hear the case. This means that the lower court's 2008-FEB-01 decision will stand. 8

2008-FEB-28: Judge rules divorce action may proceed:

"Beth R" married "Donna M" in Canada. The marriage was unsuccessful, and Beth launched a divorce action against her spouse in a New York court -- the first such action in the history of the state. Donna M's lawyer believes that a divorce is impossible because the state does not allow same-sex marriages.

Supreme Court Justice Laura Drager ruled that the state can recognize the same-sex marriage that took place outside of the state. She wrote that New York would recognize any out-of-state marriage that is not specifically prohibited by state law, and is not "abhorrent to New York public policy." She listed polygamy and incest as "abhorrent" practices. Donna M.'s lawyer argued that the decision "...sets aside 200 years of decisional and statutory law in New York." 4,5

2008-MAY-14: State agencies to recognize SSMs performed elsewhere:

Governor David Paterson's legal counsel sent a memo to state agencies instructing them to recognize all SSMs performed legally out of state. The memo stated to at to not recognize SSMs would violate the state human right's law. Erin Duggan, spokesperson for the governor, announced this on MAY-29. She said: "This was in direct response to a court ruling ... just to make sure all the state agencies are on the same page."

2008-SEP-02: Court upholds SSM in New York:

The fundamentalist Christian legal group, the Alliance Defense Fund, challenged the governor's decision to have the state recognize legal out-of-state same-sex marriages. They had the support of several state senators -- all Republicans. State Supreme Court Judge Lucy Billings issued a statement on SEP-02 rejecting the lawsuit. She wrote that a decision by homosexual couples to wed represents:

"... a personal expression of emotional devotion, support and interdependence and a public commitment. With that validity, they expect equal treatment with other married couples."

She referred to the policy of recognizing SSM as a:

"... permissible, if not mandated, step toward the objective of equality for a group for whom legal as well as practical barriers to equality persist."

In addition, she wrote that not recognizing SSMs legally performed elsewhere is "antithetical to family stability."

Reactions to the ruling:

bullet The Alliance Defense Fund is expected to appeal the decision.

bullet Governor David Paterson called the ruling "a wise and fair determination."

bullet Gay-equality and civil liberties groups praised the decision as reinforcing legal support for same-sex couples.

bullet Lambda Legal, a group promoting equal rights for homosexuals including marriage equality, said that the ruling continued: "a steady drumbeat of courts recognizing long-standing New York law as it applies to same-sex couples."

bullet One News Now, a fundamentalist Christian news source interpreted the ruling as having cosmic significance. They stated:
bullet "Jesus weeps, and Satan grins. Can any believer deny that we are in not only the last days of our moral society, but the last days before the Judgment?"

bullet Empire State Pride Agenda noted that SSM assigns married same-sex couples over 1,300 rights and duties normally given as special privileges and responsibilities to only opposite-sex married couples. This appears to be in error. The state grants about 300 rights, privileges, protections and duties to married same-sex couples. The federal government grants about 1,100 such benefits to married couples, but only if their genders are opposite. it denies them to same-sex couples due to the federal DOMA law. That law was recently declared unconstitutional by two federal courts. However, as of mid-2011, it is still being enforced by the Obama administration. Most constitutional experts believe that DOMA's days are severely numbered.

Benefits still withheld from same-sex couples:

Between 2008-FEB-01, when the court required the state to recognize legal out-of-state marriages made by same-sex couples, and 2011-JUN-24, when Governor Cuomo signed a marriage equality bill into law:

  • One advantage that opposite-sex couples residing in New York still had was that they could get married anywhere in their home state. Same-sex couples had to go to another jurisdiction to marry. This was typically Massachusetts or Ontario, Canada which have common borders with New York.

  • Perhaps the most important right that same-sex couples married elsewhere are estate taxes. According to Susan Sommer of Lambda Legal:

    "Typically, when a spouse dies, the surviving spouse does not incur estate taxes. But in New York, because of a statutory anomaly, a survivor spouse in a same-sex couple, who was legally married out of state, would have to pay estate taxes. These taxes can be significant. Also, I should note that even though many New Yorkers have gone across state lines to get married, many couples can’t afford that." 9

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Hilary White, "New York Court Rules State Must Validate Canadian Homosexual 'Marriages'," 2008-FEB-04, at:
  2. "A Victory for Same-Sex Marriage,' Editorial, New York Times, 2008-FEB-05, at:
  3. Kathy Belge, "How to get married in Canada...", at:
  4. "New York Judge Permits Lesbian Divorce Despite State's Non-Recognition of Same-sex 'Marriage'," Life Site News, 2008-FEB-28.
  5. Note: Life Site News, like all or essentially all other conservative Christian groups, opposes the right of committed, loving, same-sex couples from marrying. For this reason, they generally enclose the word "marriage" in quotation marks to indicate that they do not consider same-sex marriage as valid or meaningful.
  6. Cheryl Robinson, "New York to recognize gay marriages," CNN, 2008-MAY-29, at:
  7. Jennifer Peltz, "NY judge rejects bid to halt same-sex marriage recognition," One News Now, 2008-SEP-03, at:
  8. "NY High Court Refuses Gay Marriage Case," Newscenter, 2008-MAY-06, at:
  9. Nathan Koppel, "Q&A with Lambda Legal’s Susan Sommer about New York Gay Marriage Bill," Wall Street Journal, 2011-JUN-23, at:

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > NY > here

Copyright © 2007 & 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2007-APR-30
Latest update: 2011-JUN-26
Author: B.A. Robinson

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