Responding to requests for legal advice from local officials around the state and the New York City Clerk, the top government lawyers for New York State and New York City have issued their first “official” pronouncements on the ongoing same-sex marriage debates.
Both Attorney General Elliott Spitzer, speaking through state Solicitor General Caitlin Halligan, and New York City Corporation Counsel Michael Cardozo, issued letters on March 3, in which they interpreted the marriage provisions of the state’s Domestic Relations Law (DRL) to not authorize marriages between persons of the same sex in New York.
However, Spitzer’s office went further to answer another burning question, already put in play by foreign same-sex marriages from Canada, the Netherlands, and Belgium, and soon to become much more pressing if marriage licenses begin to be issued in Massachusetts, as now scheduled, on May 17.
According to the chief lawyer for the state of New York, a same-sex couple that has validly married in another state should be entitled to legal recognition of that marriage in New York State. It appears that New York’s may be the first state Attorney General’s office to have taken this position.
Halligan’s opinion letter on recognition is not binding on the courts and government agencies that will have to decide this question as individual cases arise, but it would certainly be considered by those decision-makers, particularly since it sets forth a legal analysis rather than merely stating a conclusion.
Furthermore, Spitzer has already put the weight of his office behind recognition by filing a friend-of-the-court brief with the Appellate Division in the case of Langan v. St. Vincent’s Hospital, involving whether a surviving spouse from a Vermont Civil Union can bring a wrongful death action in New York. A state trial judge in Nassau County had recognized the spousal status for that purpose and the hospital appealed.
Spitzer’s office normally gives formal legal opinions only to agencies of the state government, so his response to the inquiries, addressed to city attorneys in Cohoes and Kingston, takes the form of an informal letter giving advice.
Similarly, Cardozo does not have authority to order City Clerk Victor Robles to do or not do anything. As an appointee of the City Council, Robles is politically answerable to that body. But Cardozo’s letter makes the point that in administering the state’s marriage law, Robles is not exactly a free agent, and is bound by state law. So Cardozo advises that Robles wait until the courts have sorted out any question about the meaning of the law or its constitutionality before issuing marriage licenses to same-sex partners.
These questions arose with some force, especially after New Paltz Mayor Jason West began performing marriages without licenses for same-sex couples, because the DRL does not specifically state that marriage are between one man and one woman, and does not specify that applicants for a license must comprise such a couple. Indeed, the law uses gender-neutral terminology in the key provisions, and both the Association of the Bar of the City of New York, in two formal reports, and at least one state trial judge in a decision noted in Halligan’s letter, have suggested that same-sex couples could be allowed to marry under the existing statute.
But as both the Halligan and Cardozo letters make clear, the DRL is replete with references to “husband and wife” in other provisions, and a statute is customarily to be interpreted consistent with the intent of the legislators who enacted it. There can be little doubt that the New York legislature did not intend, when it revised the law to use gender-neutral language some time ago, thereby to open up marriage to same-sex partners. And although the state’s highest court hasn’t spoken on this issue, several lower courts have done so and ruled against interpreting the law to allow same-sex marriages.
Beyond their common conclusion about interpreting existing statute, Halligan and Cardozo proceeded in somewhat different directions. Cardozo, briefly noting that courts in other states are now divided over whether a ban on same-sex marriages is constitutional, advised Robles that his proper role was to avoid creating confusion by continuing his current practice of recommending that same-sex couples seeking marriage licenses instead register as domestic partners.
Halligan’s letter, on the other hand, engages in a detailed analysis of constitutional rulings in other jurisdictions and opines that serious constitutional questions are raised about whether the DRL violates the constitutional rights of gay people. Without taking a firm position on the question, the letter leaves the impression that the attorney general’s office is sympathetic to that constitutional claim. The key test of this will come when the next marriage case comes before the court and he is asked to file a friend-of-the-court brief.
As attorney general, Spitzer is generally charged with defending the laws of the state, but there is precedent for New York attorney generals refusing to defend anti-gay laws. During the late 1970s and 1980s, Attorney General Robert Abrams refused to defend the laws banning sodomy and loitering for the purpose of soliciting sodomy.
Spitzer has made clear again this week that he personally supports same-sex marriage rights.
Halligan’s analysis of the questions surrounding recognition of out of state marriages may prove very useful when litigation arises, since it lays out the argument for recognition quite clearly.
“In general, New York common law requires recognizing as valid a marriage, or its legal equivalent, if it was validly executed in another State, regardless of whether the union at issue would be permitted under New York’s Domestic Relations Law. The only exceptions to this rule occur where recognition has been expressly prohibited by statute, or the union is abhorrent to New York’s public policy,” Halligan wrote.
New York is one of the dozen remaining states that has yet to enact either a Defense of Marriage Act or a state constitutional amendment banning same-sex marriage, so there is no express prohibition on such unions. On the question of whether such unions are “abhorrent” to public policy, Halligan’s letter noted the many ways that New York has already begun to extend legal recognition to same-sex partners––in tenant succession, partnership benefits, and Langan ruling, among others.
“Consistent with the holding of the only state court to have ruled on this question, New York law presumptively requires that parties to such unions must be treated as spouses for purposes of New York law,” Halligan wrote, referring to the Langan case.
Halligan does not specifically address whether same-sex marriages performed in foreign countries would be entitled to similar recognition, but such recongition would be consistent with existing New York practice regarding heterosexual marriages.
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