Out-of-State Same-Sex Marriages Valid in New York for Employee Benefits Purposes:

So held a New York appeals court in Lewis v. N.Y. State Dep't of Civil Service a couple of weeks ago, for much the same reasons as were discussed here. Thanks to reader NabokovProdigy for the pointer to the decision, and to an article about the Alliance Defense Fund litigation strategy for challenging such recognition.

Jack Black (mail):
The concurring opinion and the majority seem to divide pretty neatly on the question of how properly to defer to the New York Legislature: whether a court choosing to apply a common-law rule in a novel fashion can overrule both the Court of Appeals of New York and transform legislative inaction into indirect support for a policy decision with fiscal consequences supported only by the political arm of one branch of government. I was disappointed to see the majority opinion overlook the substantive arguments of the plaintiffs regarding the separation of powers questions raised by Governor Paterson's unauthorized and purely political directive. I know of no other context in which the Governor can appropriate funds from the public fisc and distribute them to his political allies without legislative preauthorization.

While I am personally a supporter of same-sex marriage and would love the Democratically-controlled Executive and Legislature in New York to pass a same-sex marriage law (as both the majority and concurrence state they can), they have yet to do so and in such circumstances it is not for the courts, through novel and sophisticated manipulation of common-law doctrine that only Derrida would adore, or the Governor, through his political arm, to order. It is a matter properly reserved for legislation. We have legislatures to make laws.

For that reason, I was surprised that the majority opinion, rather than provide a coherent rationale for its decision, does little more than sketch the outlines of the open question that will be before the Court of Appeals when the Alliance Defense Fund argues before it:

[T]he Court of Appeals has held that the Domestic Relations Law limits marriages solemnized in New York to persons of the opposite sex (see Hernandez v Robles, 7 NY3d 338, 357 [2006]) and stated that any revision of the statute specifying who can be validly married here "rests with our elected representatives" (id. at 379), it did not hold that same-sex marriages solemnized elsewhere would not be defined as marriages here, and it observed that the Legislature could rationally choose to permit same-sex couples to marry in New York (see id. at 358-359, 365).

It also engages in outright facetiousness:

[T]he determination to recognize same-sex marriages is not invalid for the Department's failure to comply with the formal rule-making procedures of the State Administrative Procedure Act because the determination is an interpretative statement that is merely explanatory

This is facetious precisely because the change of policy was not an explanation, but rather a change of policy.

Most disappointing, however, is to see the Cuomo Attorney General's office introducing to the litigation issues of incest, polygamy, and the marrying of children. Those analogies are wholly irrelevant to the actual question before the court, and raising them, even in advance of a pro-same-sex marriage argument, only disparages the public profile of gay couples. Furthermore, claiming that the Legislature can always preclude X does not mean that X was supported by pre-existing law. If X is not supported by pre-existing law, the Governor has no basis to act in resolving an ambiguity. While the concurring opinion is more in line with my views, I find the litigation tactics of the New York Attorney General's Office, whose content was cut-and-pasted into the majority opinion, to be laughably frivolous and ethically repugnant.

That said, I cannot object to the outcome.
2.6.2009 2:03am
I'm admittedly unfamiliar with the exact nature of the separation of powers argument that was made here, but Gov.'s directive wasn't quite as baseless as you imply--I'm pretty sure it came after Martinez, the 4th Dep't case establishing the recognition of out-of-state same-sex marriages. So the logic looks more like: legislature (by not modifying the common law) allows the NY to recognize out-of-state marriages, judiciary interprets the scope of what marriages that includes, and the executive applies that law as its been interpreted. Granted, I don't think he would have done so if not for his own view on same-sex marriage, but it wasn't without the color of law.
2.6.2009 10:52am
Jack Black (mail):
legislature (by not modifying the common law) allows the NY to recognize out-of-state marriages, judiciary interprets the scope of what marriages that includes, and the executive applies that law as its been interpreted.

I did not state the directive was baseless; the directive was unauthorized for specific separations-of-powers reasons.

But since you want to discuss baselessness....

Martinez does not change any of the marriage statutes that define marriage. Paterson claimed that Martinez mandated changes to statutes and regulations, across all state agencies, that involve in-state marriages. That is a baseless claim.

Paterson also ignored that Martinez was an outlier amongst the intermediate appellate courts and that appeals were pending in other cases, claiming the matter was "settled". It is baseless to claim an ongoing issue that has been decided your way in one instance has been decisively answered in all respects and mandates changes to which it cannot logically relate.
2.6.2009 11:52am

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