Since Governor Paterson wrote to state agencies about respecting the legal out-of-state marriages of same-sex couples, the Pride Agenda has been getting questions from a number of LGBT New Yorkers. Two that we are hearing most frequently are:
Is it time to be thinking about going to California or Canada to get married?
Does this mean my employer has to recognize my Canadian marriage now?
Our short answer to both questions is that recognition of out-of-state marriages is a developing policy area where there are still few hard and fast answers to questions like these. If possible, a couple is best advised to speak to an attorney about their particular situation before taking a course of action.
Before elaborating further on our short answer, we also want to make sure you’re aware of a Q&A our national marriage equality partners just issued for every couple considering going to California to get married (and we might add this statement also holds true for couples thinking about going next door to Canada). Entitled “Make Change, Not Lawsuits,” the Q&A explains that while couples who go out-of-state to marry should ask friends, neighbors and institutions to honor their marriages, they generally shouldn’t sue but should instead fight in other ways which are more likely to win.
In terms of New York recognizing out-of-state marriages and a longer response to the two questions above, here’s where things stand at this time:
What’s happened so far:
In May 2008, Governor Paterson’s legal counsel wrote a memo to the legal counsels of all state agencies informing them of New York’s longstanding law on respecting out-of-state marriages and the Martinez court decision and advised them that, “[A]gencies that do not afford comity or full faith and credit to same-sex marriages that are legally performed in other jurisdictions could be subject to liability. In addition, extension of such recognition is consistent with State policy.”
The Governor’s counsel requested that each state agency counsel, “conduct a review of your agency’s policy statements and regulations, and those statutes whose construction is vested in your agency, to ensure that terms such as ‘spouse,’ ‘husband’ and ‘wife’ are construed in a manner that encompasses legal same-sex marriages, unless some other provision of law would bar your ability to do so.” He finally requested that agencies follow up with him by June 30 about what actions they would be taking and any potential legal problems that come to their attention.
What this means for state agencies:
The memo from the governor’s office provides some important answers for New York same-sex couples, though it still leaves many critical questions unanswered. Significantly, the memo confirms that it is the stated policy of New York’s Executive branch and its agencies to fully respect the marriages of same-sex couples performed in jurisdictions where legal. It also indicates that this policy will be implemented throughout the agencies so that all state employees will have direction on how to treat married same-sex couples throughout their work at the agency.
In many ways, though, the Governor’s memo is just part of a process that still leaves a number of important questions unanswered. Probably the most important question is whether all the rights and responsibilities of marriage granted through state agencies can flow to same-sex couples. While state agencies are responsible for implementing and constructing state statutes and the terms used in them, there could be some areas where clarifying legislation might be required in order to treat same-sex couples equally under the law. If so, having access to these rights and responsibilities is not something that is solely under the authority of the Executive Branch of government to provide. State agencies also have to make sure that there are not counteracting federal laws in those specific state areas regulated by the federal government that would trump New York law and prohibit the recognition of marriages of same-sex couples.
Once the governor’s office hears back from the state agencies, there should be some more concrete guidance on which of the rights and responsibilities of marriage granted through the state agencies can actually flow to same-sex couples. For example, the ability of married same-sex couples to file jointly on their state (but not federal) income taxes is an area where the Pride Agenda will be looking for clarity.
What this means for areas of New York State government outside of Executive Branch agencies:
How marriages will be treated in contexts outside of the state agencies is a much more open question. For example, since the judiciary is a completely separate branch of government from the executive and legislative branches, the governor generally can not direct courts about how they should be treating marriages. His memo, therefore, might not have a legally binding effect on each of the 1,324 state-based marriage rights and responsibilities granted by New York State, particularly the rights enforced through New York’s courts. These rights are many and important, ranging from inheritance to joint adoption to spousal testimonial immunity to divorce.
Nonetheless, the Martinez decision that was a basis of the governor’s memo is binding legal precedent on all trial-level courts in New York until an appellate level court or New York’s highest court, the Court of Appeals, says otherwise, so those court-enforced rights and responsibilities should flow to same-sex couples as well. For instance, a trial court in New York City relied upon the Martinez decision and the well-established law underlying that decision in holding that a same-sex couple married in Canada could divorce in New York. The Martinez decision is too new, however, for there yet to be many other examples of courts enforcing the precedent in that way.
Further, the courts in New York have not made it clear that same-sex couples with children can rely upon their marriage certificate to fully protect their families and establish both parents as legal parents. Therefore, couples thinking about getting married and adopting or having children should consult a family law attorney and ask about a second-parent adoption.
What this means for the private sector employers:
Likewise, it is not certain which and in how many areas the state compels recognition of any marriage by the private sector. Workers Compensation, for example, affects private employers in that they pay into the system for employees and their surviving spouses who utilize it, but the program is administered and regulated by the state, so it may be a benefit that must be extended to same-sex couples. However, does New York State law compel a private employer to use the government’s own definition of marriage to determine who the employer should extend spousal health insurance to? The answer is not yet clear because a number of private employers’ health plans are regulated by federal law, which would not recognize a same-sex couple’s marriage.
The bottom line is that recognition of marriages by same-sex couples is a developing policy area, with a lot of practical uncertainty for these couples. For some, getting married in a place like Canada or California will provide them with some additional protections they want and deserve for their family. For others, it may not and may instead lead to challenges in other areas of their lives (for example, getting married may jeopardize an individual’s status in the military, or pose a danger for bi-national couples).
All couples should also recognize that they are likely to be subject to new legal requirements if they get married, such as courts having a say in how their property will be divided if they should separate.
Marriage is a serious legal and personal commitment – much more than just a political or personal statement – and we urge couples considering getting married to proceed thoughtfully with full awareness of the possible consequences of what ever they decide to do. As we said above, couples are best advised to speak to an attorney about their particular situation to see if it is advisable for them to get married in another state or in Canada.
In the end, all couples should agree that the best way for our families to have certainty is for the New York State Senate to act and follow the New York State Assembly in passing a law to allow New York State marriage licenses to start flowing to same-sex couples here in our home state. Only with the passage of a marriage equality law will all areas of New York State government be on the same page and provide true security for committed couples who make a lifetime promise to take care of and be responsible for each other.
For more information, go to:
Equality California: “Marriage for Same-Sex Couples in California: Frequently Asked Questions”
NYCLU: “Marriage Q+A for Gay and Lesbian Couples”