Beth R. v. Donna M., 2008 WL 615031, No. 350284/07 (a trial court decision from New York County):
Absent overriding legislation, recognition of out-of-state marriages is governed by common law doctrines and comity. New York courts have long held that out-of-state marriages, if valid where entered will be respected in New York even if under New York law the marriage would be void. "(I)t is a general rule of law that a contract entered into in another State or country, if valid according to the law of that place, is valid everywhere.... (T)he rule recognizes as valid a marriage considered valid in the place where celebrated." There are only two exceptions to this rule. New York will not recognize either a marriage prohibited by positive law of this state or a marriage abhorrent to New York public policy. The abhorrence exception is so narrow that it has been applied only to marriages involving polygamy or incest....
Courts have recognized other out-of-state marriages that are repugnant under New York law. Historically, New York law prohibited a respondent who was divorced on the grounds of adultery from remarrying during the former spouse's life. Yet the respondent's remarriage in another state was recognized as valid in New York if the other state did not preclude the remarriage of an adulterer. A valid out-of-state marriage that was voidable under New York law because a spouse was underage was recognized as valid in New York. Common law marriages, although not recognized in New York, will be upheld if validly entered into under the laws of another state. New York recognizes as valid out-of-state marriages by proxy, although such marriages cannot be performed within New York....
Accordingly, defendant's motion to dismiss this divorce action on the grounds that the parties' Canadian marriage is void under New York law is denied.
UPDATE: Thanks to commenter Klerk for a pointer to the decision, and also for a pointer to a similar decision last month in Martinez v. County of Monroe -- an appellate decision in that case, not just a trial court decision, and one involving a right to spousal health care benefits based on a Canadian same-sex marriage.
Gorgonozola Lantern: Could you elaborate, please? What treaties? Exempt from what? More complex how?
The Appellate Division, Fourth Department (intermediate appellate court of limited geographic scope) reached a similar conclusion to this trial court in February 2008's Martinez v. County of Monroe (recognizing a Canadian same-sex marriage).
Finally, Anton -- Full faith and credit is not an issue here at all. First, FFC only applies between states of the Union, not foreign countries. Further, the Defense of Marriage Act (DOMA) makes FFC not apply to same-sex marriage.
And a video of attys for clients on the case on ABCNews Podcast is available here.
or are we merely here rubber-necking at the less-than-novel notion that the benefit of NY law has not been--in one instance--denied a person simply because that person is gay?
or perhaps we should ... ... ... uuuhhhhm ... ... ... marshal the troops, as it were, or circle the wagons?
And as EV points out, it's only FF&C in the loose sense of comity, not the strict constitutional sense that applies only as between the courts of two states, or the federal statutory sense that applies to state decisions in federal courts.
Does the analysis change if this marriage had been sanctified in Massachusettes?
"New York will not recognize either a marriage prohibited by positive law of this state or a marriage abhorrent to New York public policy. The abhorrence exception is so narrow that it has been applied only to marriages involving polygamy or incest...."
B - a quick google search of this site will show you that Eugene favors same-sex marriage as a policy matter, despite your implications.
And yes, Im desperately trying to procrastinate tonight...
From two previous commenters:
the Defense of Marriage Act (DOMA) makes FFC not apply to same-sex marriage.
Indeed, because of DOMA, recognition of same-sex marriage from any jurisdiction (foreign or several state) relies on common-law comity.
Hang on, surely one cannot change the scope of the Full Faith and Credit clause through an Act of Congress?
Actually, you are mistaken: the Full Faith and Credit Clause applies to the "public Acts, Records, and judicial Proceedings of every other State." There is functionally no difference between the analysis for recognition of public acts and records of other states and foreign country comity analysis--each one has an exception that allows a state A to not recognize an act done in state B if that recognition is against the public policy of State A. This public policy exception is not available for judgments of another state, however. So, while a state may refuse to recognize a marriage solemnized in another state, it may not refuse to recognize an adoption or a divorce decree (see Finstuen v. Crutcher, 2007 U.S. App. Lexis 18500 (10th Cir. 2007)).
That's exactly right. DOMA does nothing at a state level except declare the long-settled interpretation of Full Faith and Credit Clause--namely, that a state does not have to accept the public act or record of another state if it is agaisnt the first state's public policy. DOMA is only effective in denying same-sex couples duly married in the laws of their states recognition under federal law for purposes of taxes and other benefits.
"surely one cannot change the scope of the Full Faith and Credit clause through an Act of Congress?"
Actually, Congress has precisely that power (some argue). The second sentence of the FFC Clause of the Const. gives Congress the power to prescribe, by general laws, the effect given to the acts of one state in the other states -- defining what full faith and credit means.
There is some debate over whether denying any effect is consistent with the first sentence, but no Court has invalidated DOMA or other statutory limitations of FFC to the best of my knowledge.
@Nate W.: OK, thanks for the explanation. So it's not really DOMA that has this effect, it is simply the operation of the constitutional rule itself.
@Klerk: I'm sorry, your comment came up while I was writing mine, so I only saw it when I'd already hit the post button.
I grabbed my copy of the constitution, and I must say it is a bit of a strange rule. I would have said that it made more sense to leave issues of proof to the states ("the manner in which such Acts, Records, and Proceedings shall be prooved"), while I'm not quite sure what to think of "Effect", other than the complete blocking of any effect, as in this case. (Which, as far as I can see, could be constitutional or not. No way of telling from the text alone.)
The US/Canada Bilateral Treaty on Mutual Recognition of Judicial Acts Does Not Recognize Same-Sex Marriages
To those invoking DOMA, or US-Canada treaties: at most, these laws ensure that no state is forced to recognize same-sex marriages held elsewhere -- they don't prohibit New York from recognizing Canadian marriages.
True. But my point was a broader one, that there are often exemptions from regional treaties and so forth that allow signatories to refuse to honor same-sex marriages, or the lack thereof causes renegotiation or the failure to ratify. (If the United States specifically rejected a bilateral treaty guaranteeing the result, it might be odd to argue the result obtains in defiance of that rejection.)
Of course, state law can be more capacious than federal law, until the point at which it contravenes US foreign policy. That is different than FFCC mandating it.
And given that NY law is mum on the idea, the question is whether the absence of a NY law prohibition should enable courts to say "Yes" rather than "No, go to the state legislature; we abide by federal policy until we hear otherwise from the legislature."
The point of bringing up Rhode Island is that one could have argued the court should have stayed mum and followed federal policy in the absence of explicit NY state legislative recognition.
That is, New York State law seems to generally recognize marriages held outside the state even if these marriages would be void if solemnized within the state.
I'm not sure that is true. I recall it being an open question. But perhaps that was the purpose of this litigation, to change a loophole into a feature. I condemn that. The NY legislature is quite liberal, and LambdaLegal should have gone that path, especially given how receptive the Governor is to gay marriage.
If you like the result, fine. I don't disparage that. I just wish you had more respect for the democratic process.
From Wikipedia:
"Eliot Spitzer said that he would push to legalize same-sex marriage if elected, and he proposed legislation to that effect to the state legislature on April 27, 2007. This legislation passed in the State Assembly on June 19, 2007, but died in the State Senate and was returned to the Assembly."
The Wikipedia entry also has an excellent summary of where every US state stands (bottom), as well as foreign jusidictions (right)
In this instance, however, I reach a different result. I think that the custom of comity between jurisdictions points towards accepting valid foreign marriages, even if they do things differently in the forum, absent a substantial public policy behind the difference. In this case, then, I think the default should be to recognize the marriage unless the legislature affirmatively declares that same-sex marriages are against public policy. But perhaps this is my libertarian position coming out....
I would agree with you if customs didn't reject Canadians with gay marriages from entering the country as spouses.
I think you may have proved my point. Spitzer was unsuccessful. But not totally so. His measure passed one house. This is an electoral issue, and the courts should stay out of it in discerning the default. It's not like the legislature is unresponsive to the issue and it seems that "failure to act" is a real substantive policy choice by the legislature.
Different jurisdictions, and the difference is actually decisive here. Federal law - whether it be DOMA, Social Security Survivor benefits, or just about any other family law enactment - declares a policy against recognizing same-sex marriage. New York law, on the other hand, permits same-sex married couples to share in retirement benefits; a policy choice selected by the elected branches and not the courts: "The state comptroller, Alan G. Hevesi, indicated in a letter to a state employee that the state retirement system will recognize same-sex marriages contracted elsewhere for the purposes of retirement benefits for New York state employees."
In other words, I think that Congress has affirmatively acted sufficiently to overcome the default presumption of recognition for valid foreign weddings, whereas I dont see such action from New York. The fact that the legislature did not pass a law permitting such unions in New York does not reflect any policy choice concerning the policy of recognizing those marriages performed elsewhere.
I very much acknowledge, however, that my default position does have something to do with a libertarian preference for legislative action to overcome customary freedom (e.g. to travel -- this one reason why FFC is the default in the absence of congressional action) .
Yes, I don't buy that move. You're begging the question by presuming a legislature needs to overcome a default presumption of recognition for valid foreign weddings.
There is no such default.
The litigants here used their lawsuit to get the courts to make that up.
My position is it's illegitimate for courts to oblige where there is contrary federal policy and the effort to enact such a state policy has failed, certainly in cases where there is no proof, as here, that the legislature is incapable of passing such a law, and state officials are quite able and willing to explicitly create guarantees advancing gay rights when they see fit. As your Spitzer and Hevesi examples show, there is nothing deficient about New York politics when it comes to gay rights; therefore, the court should have done nothing. Perhaps Spitzer's effort failed because he is temperamental or because he was plagued by a dirty tricks scandal. That is not a reason for the courts to reverse the winners/losers of a legislative battle (if you try to pass a law and my coalition of representatives blocks it, we win, and so do our constituents). It's a reason to try again and to use the issue in the next electoral cycle.
There is little doubt that if a serious foreign policy prerogative of the United States were impaired by setting the default this way, it would be wrong in the absence of a state law if it would be wrong in the presence of a state law that would violate the Supremacy Clause. So the notion that state legislative prerogative and federal law are mutually exclusive zones is not libertarian, exactly, because it's the position the Southern States took that led to the Civil War, and slaveowners did not believe in freedom to travel from state to state.
That's incorrect. There is a bilateral treaty that does not explicitly guarantee Canadians that their marriages will be recognized and the United States has explicitly turned away gay couples who claimed to be married because it is federal policy to do so. The question is how does that bear on our determination of what comity is, given there is some limit on state courts to set foreign policy for the United States. This is not aimless speculation; indeed, this mirrors the question currently before the Court in Medellin.
Why not just pass the law? I really find these activist decisions annoying and disrespectful to democracy.
The State Policy
Im not going to lie, I didn't quite follow your last paragraph. For what its worth, however, slaveowners sought the freedom to travel from state to state and have their domestic institutions recognized - this is actually precisely what was at issue in Dred Scott. I do think that slavery is just such a sufficiently important public policy to mitigate against the recognition of foreign relationships -- slavery was outlawed in certain territories and states. If that is responsive, great; if not, I apologize for not following you.
If you read the decisions linked above, you'll see that it's just not correct to say that there is no presumption of recognition of foreign marriages in New York and "[t]he litigants here used their lawsuit to get the courts to make that up."
New York has a long history of recognizing marriages from other states and countries that the parties could not have entered into in New York. The case that always sticks in my mind is Matter of May, 305 NY 486 (1953), which is cited in both decisions linked above: a man who lived in NY went to Rhode Island for the specific purpose of marrying his niece, which would have been forbidden in NY and I think in any other state besides Georgia. When they came back to NY, the marriage was recognized.
That case was more than fifty years ago, so this rule isn't something the courts in this case just made up. It's been around for even longer, in fact-- there are also cases from all the way back in the nineteenth century, involving remarriage of divorced adulterers, which was prohibited in NY at the time.
If the legislature had wanted to change this rule, they have had plenty of time in which they could have done so. I think over a century of legislative acquiescence in this kind of general rule provides some democratic legitimacy-- do you disagree?
I don't think states are the same as foreign States, and cases involving Rhode Island don't change that. Obviously, the federal government's foreign policy toward Canada is not necessarily implicated in Rhode Island's tolerance of incest. You have simply detailed how the NY courts stretched the precedents in this case, which I have already decried. As there hasn't been any acquiescence on this question, take it to the legislature.
It was responsive if you don't think slaves were people with rights.
No, someone else did that. I simply accepted it for the sake of argument. It isn't relevant to my position, though, which is that the legislature is functional and the political process works for gays in New York. Unlike, say, slaves in the South, whose liberty a true libertarian would respect.
I fail to see how the federal government's foreign policy is implicated in this case at all. I had explained at length why, but Nate W @ 421 largely preempted it.
The default rule, as layed down in May and the two restatements of choice of law, concerned marriages solemnized "abroad," without distiction for jurisdiction. It says that a marriage valid where solemnized will be recognized in New York absent a public policy justification to the contrary. Is it really to much to ask the Legislature to affirmatively state such compelling public policies, rather than rely on implication?
@ 4:06am, 4:09. The discussion of slavery is tangential, but at no point did I assert that slaves did not have rights as a normative matter. Since you imply that is my position, please explain how I made the argument. If not, please do not put such vile words in my mouth.
In the digression on slavery, I merely argued that slaves did not have rights in the southern states prior to the civil war as a factual/historical matter. Surely we can agree here?
It would certainly be an activist position to take (in 1805) to assert that slaves had rights. Nonetheless you seem to be criticizing an assertion that slaves didn't have rights [FWIW, not my argument at all] while bemoaning activist courts in the present case. Contradiction?
I imagine you will explain this by asserting a functional political process now. Did you support the court invalidation of anti-miscegination laws? How? At this point blacks could vote, the all white primary had been outlawed - so politics in theory works. The original understanding of the 14th amendment also would not have understood it to include whites marrying blacks, given the prevalence of such state laws at the time of its passage.
I just cannot see this decision as in any way activist -- all it does is apply the customary validity of foreign marriages (deeply entrenched in New York and American Law - First restatement, second restatement, and May, among others) in the absence of a legislative statement not to.
Yes, that is my point. We have a federal foreign policy that disrespects Canadian same-sex marriages. They may be turned away at the border if they register as married with customs, believe it or not.
I imagine you will explain this by asserting a functional political process now. Did you support the court invalidation of anti-miscegination laws? How? At this point blacks could vote, the all white primary had been outlawed - so politics in theory works.
I do not see how that has anything to do with your previous assertion that Dred Scott was rightly decided.
In the digression on slavery, I merely argued that slaves did not have rights in the southern states prior to the civil war as a factual/historical matter. Surely we can agree here?
No. The failure to respect rights is not the same as their non-existence. Inalienable rights are inalienable.
Either way, it is a question of jurisdiction, not one of comity.
False dichotomy on your part. The political question doctrine makes certain cases non-justiciable. It includes cases that touch upon foreign affairs, like recognition of a foreign nation. In other words, if the issue of comity is of the valence to be dedicated to the political branches, then there is no jurisdiction.
Is it really to much to ask the Legislature to affirmatively state such compelling public policies, rather than rely on implication?
That might make sense in a case in which the federal policy went in your direction and the current Gorvernor hadn't tried to pass gay marriage legislation and failed because he was intransigent and impolitic, or in a case in which there were no federal policy at all.
However, marriage law is traditionally squarely within the state's police powers. Therefore, there is a presumption that in the absence of valid federal preemptive legislation, states are free to recognize foreign marriages as they please.
This doesn't follow at all. Tort law is traditionally squarely within the state's police powers. That doesn't mean that states can vitiate the federal government's policy regarding foreign tort claims for Holocaust victims. See Garamendi.
Arguably, the customary validity of foreign marriages does not apply in this case because it interferes with the Nation's foreign policy. That is a reason not to rig the default in favor of the litigants in contravention of democracy and, arguably, the Supremacy Clause.
Please ignore the slavery discussion - it has the potential to veer way too far off topic and I was not as civil as I would have liked. I apologize. All I wanted to say was that I do believe (as I wish was universal) that slaves are both people and deserve equal rights. I use the present tnese for slavery is not yet totally extinct.
I brought up Dred Scott because you wrote "slaveowners did not believe in freedom to travel from state to state." I responded that this was precisely the freedom at issue in Dred Scott, that is, their freedom to travel from state to state and maintain their ownership of slaves. Slaveowners, therefore, did believe in that freedom, at least for themselves.
First - I refuse to take any implication from legislative silence (failure to pass a law) whether positive or negative. Therefore, this doesnt move me from my default position.
Second - that the federal policy is different cuts both ways - Congress has acted to displace the customary presumption of recognition, the state hasn't.
Finally - foreign policy is how our government relates with other sovereigns. It is a concern of public law. The recognition of a foreign marriage is a matter of private law. The U.S. Federal policy of nonrecognition of Canadian same-sex marriages is a policy choice, but it is not foreign policy (although it may affect it).
One last comment and I'm done. I'm not going to try and explain federal v. state powers and their constitutional limits. Suffice it to say that
1)the recognition of marriage is traditionally a state concern, and so absent federal legislation that preempts the field, states are free to do whatever they want. You are correct that the federal government can preempt state laws, as it did with foreign tort claims, however, and this is important:
2)the federal government has not passed preemptive legislation on the subject of marriage recognition. You can talk about customs and federal benefits all you want, but no one--no one is claiming that customs policies and other federal policies preempt a state's ability to govern this topic as they please. Look at the state of the law regarding federal preemption if you don't believe me. A few random customs policies does not create a comprehensive statutory scheme that would evince intent by congress to cover the field.
And finally, comity regarding foreign acts and judgments has traditionally been in the hands of the courts. That isn't to say that political branches can't say that acts and judgments from certain countries or bearing on certain subjects are not to be granted comity; of course they can. But in absence of that, the courts will decide questions of comity as they have always done.
Again and for the last time--the courts here are merely exercising their common law jurisdiction, just like they have been doing since the Battle of Hastings. If judicial activism means following the common law, I couldn't be more proud of my activist courts.
Consider an alternate hypothetical: replace Beth R. with Bob R., an infertile man, and remove "marriage" from the picture, and leave all other facts the same.
So we have a once committed but unmarried couple with children by artificial insemination who split up. Bob R. is genetically unrelated to the children and has not legally adopted them, but has had the role of "father" to them.
The father sues to assert his parental rights.
How should the court treat the the parental rights of the unmarried couple any differently from the parental rights of the divorcing lesbian couple?
Is the label of marriage what's actually relevant here? Or is it more important to look at the actual state of the relationship and the couple's prior actual commitments to each other?
In Garamendi, there was no federal law. Just a determination by the President. Refusing same-sex couples at the border is equally a pure Executive branch determination.
That would make sense if there were a state law. There isn't. The question is the role of the state court in the absence of state legal authority, where a contrary federal policy would arguably preempt the absent state law were it present.
That would make sense if there were a state law
Doesn't your argument (New York has unconstitutionally interfered with the federal power to conduct foreign policy) apply even if the New York legislature had affirmatively stated that Canadian marriages shall be recognized?
Nothing in Article I gives the federal government power to dictate to a state what marriages it should recognize or not recognize. And the Supremacy Clause makes no distinction between the legislature, executive or judicial branch of a state. If federal "policy" (whatever that means) prohibits a state from recognizing a foreign marriage, it would prohibit the executive, legislative and judicial branches of that state from doing so. If it does not prohibit a state from recognizing a foreign marriage then it doesn't prohibit any branch of that state's government from doing so. What possible basis do you find in the Constitution for concluding that a federal "policy" prohibits a state judicial branch from recognizing foreign marriages, but doesn't prohibit the executive or legislative branches of that state from doing so?
If what makes the difference to you is caselaw involving marriages from foreign states, that exists too. Campione v. Campione, 201 Misc. 590; 107 N.Y.S.2d 170 (Sup Ct, Queens County 1951) involved an uncle who had married his niece in Italy; the marriage, like the one in May, was recognized in New York. Donohue v. Donohue, 63 Misc. 111 (Sup Ct, Erie County 1909), cited in the linked decisions, is a case from almost 100 years ago applying the marriage-recognition rule to a marriage contracted in Ontario, Canada that couldn't have been contracted in NY because the parties were too young. In re Probate of the Will of Donato Valente, 18 Misc. 2d 701; 188 N.Y.S.2d 732 (Kings County Surrogate's Ct., 1959) recognized a proxy marriage performed in Italy that wouldn't have been valid if performed in NY.
These admittedly aren't precedents from New York's highest court the way May and the remarried-adulterer cases are (the highest court in NY is the Court of Appeals rather than the "Supreme Court"), but they do demonstrate that the marriage-recognition rule has been uncontroversially applied to marriages contracted in foreign jurisdictions as well as sister States, and for quite a long time. Do you still think there's been no legislative acquiescence here?
The point is not that we "must" recognize foreign marriages-- the point is that it's up to each state whether to do so, and that NY has long had a default rule of recognizing foreign marriages unless they involve polygamy or really close degrees of incest (say, brother-sister) and are therefore considered to be against even our very-tolerant "public policy". (The cases specifically mention polygamy and close degrees of incest as exceptions.)
Now, that rule is just a default rule. The legislature can prohibit recognition of certain categories of out-of-state marriages if it wants to. If polygamy was allowed by the default rule, I strongly suspect that the legislature would have responded by prohibiting recognition of it. But the NY legislature did not, unlike a lot of other states, pass a "mini-DOMA" to bar recognition of out-of-state same-sex marriages. And it is very unlikely ever to do so, because the Governor and one house of the Legislature have now gone on record as favoring same-sex marriage in NY (although the bill to allow it died in the State Senate after being proposed by the Governor and passing the Assembly). That being the case, our historic default rule -- which the legislature has had a long time to alter if it wanted, and which I contend has acquired democratic legitimacy through such continued acquiescence -- controls, and the marriages should be recognized.
None of these are cases in which American foreign policy is to the contrary, i.e., the specific type of foreign marriages are turned away at the border by U.S. customs pursuant to federal policy.
our historic default rule
There was no default rule with regard to gay marriages prior to this case. Anyone of average intelligence can see that.
It depends what you mean by "apply." In the above case, the state court would be immune from criticism that it misconceived of the state default rule.
Facts: A person of dual Australian/UK nationality with a UK Birth Certificate saying "Boy". In 1979, an extensive surgical procedure was carried out, involving the review of possibly female organs - the records are unavailable. In 1981, the person was married to a woman in the Australian Capital Territory in accordance with Australian Federal Law. In 1985, a formal diagnosis on the basis of very brief examination at a fertility clinic was "undervirilised male". In 2000, heroic medical measures allowed this person to become a biological father. In 2005, as the result of radical natural change - comparable to the natural apparent sex changes caused by the 5ARD or 17BHDD mutations - and very extensive hi-tech tests, the formal diagnosis was changed to "severe androgenisation of a non-pregnant woman.". All of the person's ID documentation, including UK and Australian passports, lists her as female - with the exception of the UK Birth Certificate, which is a "Historical Document not reflecting current status" according to the UK registrar.
Query: In what states of the USA would such a marriage be recognised? What about Federally for the purposes of Immigration?
No, this is not a hypothetical. Although this case involves a rare intersex condition, there are thousands of transsexual people in similar circumstances.
It depends what you mean by "apply." In the above case, the state court would be immune from criticism that it misconceived of the state default rule.
So you're saying that a state court can't interfere in federal foreign policy, but a state legislature is free to do so?
None of these are cases in which American foreign policy is to the contrary, i.e., the specific type of foreign marriages are turned away at the border by U.S. customs pursuant to federal policy.
People married to someone of the same sex aren't "turned away at the border," they're free to enter and leave the country the same as any other foreign person. Their marriage isn't recognized by the federal government, but that's not "turned away at the border."
"Default Rule" = well-established precedent on comity.
Why should well-established precedent not apply to same-sex marriages?
Does that mean that social conservatives are happy that gays are divorcing?
Because it isn't on point.
No. You are wrong. Up-thread I cited a newspaper article concerning these incidents. Canadian same-sex couples have been turned away at the border by U.S. Customs if they register as married when they enter. It is not an isolated incident.
No. I am saying a state legislature is aware of what its opinion is.