Appellate Division Recognizes Gay Marriage From Canada

On Friday, in the first ruling of its kind, the Appellate Division, Fourth Department gave legal recognition to a gay marriage from another jurisdiction. The other jurisdiction was Canada, and the Court gave recognition to the marriage under the State’s longstanding “marriage recognition rule”  – Martinez v County of Monroe, 2008 NY Slip Op 00909. The facts were as follows:

On July 5, 2004, the plaintiff Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of the defendant Monroe Community College, in Rochester.  On the basis of that marriage, Ms. Martinez applied to the college two days later on July 7, 2004 for spousal health care benefits for Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College’s Director of Human Resources denied the plaintiff’s application for spousal health care benefits.

The plaintiff then commenced an action seeking, among other things, a declaration that the College’s failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law § 296, and damages incurred as a result of those violations. The Supreme Court had granted the College summary judgment declaring that plaintiff’s marriage was not entitled to recognition in New York and that the College did not violate the Equal Protection Clause or Executive Law § 296.

However, as indicated, the Fourth Department reversed and gave recognition to the gay marriage. The Court explained the State’s “marriage recognition rule” as follows:

New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the “positive law” of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of “natural law”. Thus, if a marriage is valid in the place where it was entered, it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute (quotation and citations omitted).

The Court then stated in part:

We conclude that plaintiff’s marriage does not fall within either of the two exceptions to the marriage-recognition rule. * * * The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exception to the general rule of foreign marriage recognition is not applicable in this case.

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages offensive to the public sense of morality to a degree regarded generally with abhorrence (quotations and citations omitted), and that cannot be said here.

* * *

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.

Having concluded that plaintiff’s marriage to Golden was entitled to recognition in New York, The Court further concluded that, by refusing to recognize plaintiff’s valid Canadian marriage, the College violated Executive Law § 296 (1) (a), which forbids an employer from discriminating against an employee “in compensation or in terms, conditions or privileges of employment” because of the employee’s sexual orientation. Having found the statutory violation the Court stated it did not need to consider the Equal Protection argument.

It is not immediately clear whether Monroe County or Monroe Community College, the employer in the case, would appeal. Daniel DeLaus Jr., the county attorney for Rochester, said his office was reviewing the decision and would decide whether to seek an appeal. Attorney General Andrew Cuomo also declined to comment, noting that his office may be involved in an appeal as the traditional defender of state agencies. Monroe Community College is a branch of the State University of New York.

A personal observation: The Court found that gay marriages do not go against “natural law”, which it defined as those things which are, “offensive to the public sense of morality to a degree regarded generally with abhorrence.” In so deciding, the Court did so as a matter of law, by granting summary judgment to the plaintiff. Forgetting biology for a moment, can it really be said as a matter of law that gay marriages are not “offensive to the public sense of morality to a degree regarded generally with abhorrence.” Most major religions still condemn gay marriages as an offense against moral codes, and in vote after vote in various jurisdictions people continue to reject gay marriages by significant margins. The Court thus seemed to brush aside the public’s rejection of gay marriage in various forms. It is at least questionable whether people consider gay marriage with abhorrence. Thus, I believe the Court should not have decided the issue on summary judgment, and instead it should have let the matter proceed to a jury.

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