The Volokh Conspiracy - Gay marriage by executive decision in New York:

New York is next. State agency heads in New York have been instructed by Gov. David Paterson's legal counsel to begin recognizing same-sex marriages validly performed in other jurisdictions, like Massachusetts, Canada, and beginning June 17, California.

The memo (available here) relies on the decision of an intermediate appellate court and several lower courts in the state that have held that same-sex marriages from other jurisdictions are entitled to recognition in the state. The memo also notes that, in 2007, a state agency extended spousal benefits to married gay couples under the state's health insurance program.

Some activists opposed to gay marriage plan to ask courts to overturn the governor's action, but such challenges are given little chance of succeeding. The executive memo implements on a state-wide basis the legal principles in longstanding state law about recognizing foreign marriages and in reported judicial decisions on this very matter. In theory, the state's high court could hold that same-sex marriages are repugnant to public policy in the state, and thus refuse recognition to such marriages from out of state. But that would be a very unusual decision. As in other states, the presumption in New York is to recognize marriages validly performed out of state even if not otherwise recognized in the state itself. Gay marriages should be no exception since New York is one of five states that does not have a statute or constitutional amendment banning recognition of such marriages. While the state's high court rejected a gay-marriage claim in a 2006 decision, that does not preclude state recognition of out-of-state marriages.

It's also very unlikely the state legislature will reverse this executive action by statute. The state assembly last year passed a gay-marriage bill, though the bill went nowhere in the GOP-controlled state senate. Indeed, if Democrats capture the state senate in November, it's likely a gay-marriage bill will pass the legislature and be signed into law by Gov. Paterson.

The remaining remedy for anti-gay marriage activists is to persuade their fellow New Yorkers to vote the governor and gay-friendly legislators out of office.

What's the upshot of this development? Same-sex marriages still can't be performed in New York itself. But consider the effect of what we might call marriage tourism. There is now nothing to stop gay couples from crossing the Canadian border or flying to California to get married. Canada and California, unlike Massachusetts, have no residency requirement for marriage. These couples may then return home fully married under state law.

It's not nearly as dramatic as a sudden judicial declaration of a right to gay marriage, but the practical effect is almost the same. There will soon be thousands of married gay couples in New York. And the very existence of so many married gay couples living in the state will make it harder politically to justify making the rest go through the motions of traveling out of state to get married.

	[Dale Carpenter, May 30, 2008 at 10:25am] Trackbacks Gay marriage by executive decision in New York: New York is next. State agency heads in New York have been instructed by Gov. David Paterson's legal counsel to begin recognizing same-sex marriages validly performed in other jurisdictions, like Massachusetts, Canada, and beginning June 17, California. The memo (available here) relies on the decision of an intermediate appellate court and several lower courts in the state that have held that same-sex marriages from other jurisdictions are entitled to recognition in the state. The memo also notes that, in 2007, a state agency extended spousal benefits to married gay couples under the state's health insurance program. Some activists opposed to gay marriage plan to ask courts to overturn the governor's action, but such challenges are given little chance of succeeding. The executive memo implements on a state-wide basis the legal principles in longstanding state law about recognizing foreign marriages and in reported judicial decisions on this very matter. In theory, the state's high court could hold that same-sex marriages are repugnant to public policy in the state, and thus refuse recognition to such marriages from out of state. But that would be a very unusual decision. As in other states, the presumption in New York is to recognize marriages validly performed out of state even if not otherwise recognized in the state itself. Gay marriages should be no exception since New York is one of five states that does not have a statute or constitutional amendment banning recognition of such marriages. While the state's high court rejected a gay-marriage claim in a 2006 decision, that does not preclude state recognition of out-of-state marriages. It's also very unlikely the state legislature will reverse this executive action by statute. The state assembly last year passed a gay-marriage bill, though the bill went nowhere in the GOP-controlled state senate. Indeed, if Democrats capture the state senate in November, it's likely a gay-marriage bill will pass the legislature and be signed into law by Gov. Paterson. The remaining remedy for anti-gay marriage activists is to persuade their fellow New Yorkers to vote the governor and gay-friendly legislators out of office. What's the upshot of this development? Same-sex marriages still can't be performed in New York itself. But consider the effect of what we might call marriage tourism. There is now nothing to stop gay couples from crossing the Canadian border or flying to California to get married. Canada and California, unlike Massachusetts, have no residency requirement for marriage. These couples may then return home fully married under state law. It's not nearly as dramatic as a sudden judicial declaration of a right to gay marriage, but the practical effect is almost the same. There will soon be thousands of married gay couples in New York. And the very existence of so many married gay couples living in the state will make it harder politically to justify making the rest go through the motions of traveling out of state to get married.